P L D 1961 Dacca 239 (PLP)

This Rule has been issued at the instance of twenty accused petitioners who were put upon their trial on charges under sections 147, 148, 325, 326, 380 and 448 of the Pakistan Penal Code. It is directed against an order of the learned Sessions Judge of Khulna setting aside an order of discharge made by the trying Magistrate and directing a further enquiry under section 436 of the Code of Criminal Procedure.

2. It appears that these accused persons were alleged to have committed the said offences on the 5th of August, 1957, and a charge‑sheet was submitted against them on the 26th of December, 1957. Thereafter the trial proceeded until the 4th of September, 1957, when the trying Magistrate adjourned the case to 17‑12‑58 although eleven prosecution witnesses were present, as he had no time, being engaged in examining witnesses in two murder cases.

3. Curiously enough, however, the next order that is recorded in the order‑sheet is on the 27th of October, 1958. One portion of this order is the impression of a rubber stamp and reads as follows : " Seen order of the Dy. Asstt. Sub‑Administrator in his memo. No. 4486 (4)‑G., dated 18‑10‑58, for clearing up of pending pre‑Martial Law period cases by 30‑10‑

58. Accordingly the case is taken up to‑day after informing the parties concerned," and the remaining portion in the band‑writing of the Court is as follows : " No P. Ws. present, Accd. discharged under section 253 Cr. P. C."

4. In the petition moved before the Sessions Judge it was stated in one of the grounds for the revision that the petitioner came to know of the discharge order only on 17‑12‑58, when he attended the Court with his witnesses. No further explanation was given as to what, the petitioner was doing between the 17th of December, 1958, and the 16th of February, 1959, when he moved the Sessions Judge. The learned Sessions Judge, however, by his order of the 31st March, 1959, set aside the order of dis charge as he held that the drawing of the date already fixed, backyard was illegal if it was not done with the consent of both the parties. In the present case, although the rubber stamp portion of the order recites that the parties had been informed, no order shifting the date was recorded in the order‑sheet, nor is there anything in the record to show that the shifting of the date was communicated either to the parties or to the lawyers concerned.

5. The learned Advocate now appearing on behalf of the petitioners before me realising the force of the reasons given by the learned Sessions Judge for setting aside the order of discharge, has confined himself to a purely technical objection. It is pointed out to me that since the order of discharge was made on the 27th of October, 1958, the application for revision in accordance with the practice prevailing in the Courts in this part of the country should have been made within thirty days, i.e., the time usually allowed for an appeal in a similar case. The 16th of February, 1959, on which the application was, in fact, moved was much beyond the said period of thirty days and no explana tion whatsoever was vouchsafed by the petitioner before the learned Sessions Judge to show why this delay took place even from the date when he, according to his own admission, came to know of the order of discharge.

6. There is, of course, no period of limitation fixed for such applications before the Sessions Courts either by any law or by any rule. But it has now become a well established practice which has received the approval of more than one High Court that the limitation normally prescribed in the case of appeal is the reasonable standard of time within which an application for revision should ordinarily be filed. No doubt, this leaves room for the exercise of a discretion in exceptional cases but in the present case there is nothing to show that the learned Sessions Judge was either aware of the fact that the application before him was being filed beyond this time or that any condonation of the delay in filing the application due to any exceptional circumstance was being asked for from him.

7. In support of this contention the learned Advocate appear ing for the petitioners has also relied on two decisions in the cases of Kelu Patra and others v. Iswar Parida and others (30 Cr. L J 1053) and Gokaram and others v. Emperor (A I R 1932 Oudh. 242), and I am informed that his enquiries from practitioners and ex‑Judges of the District Courts as well as the office of this Court indicate that this rule is more or less strictly followed in the Courts in this Province.

8. On behalf of the complainant opposite‑party, however, it is urged that since no period of limitation has been prescribed for such applications either by statutes or by rule, I must presume that the learned Sessions Judge condoned the delay, if any, from the mere fact of his admission of the application. In any event, since my powers as a Court of Revision are not fettered by these technicalities, I ought to consider the order of the Sessions Judge on its merits and dispose of the matter. For this argument he has also sought to find support from two decisions of the Patna High Court in the cases of Lalo Mahto and another v. Emperor (A I R 1942 Pat. 150) and Bibi Zainab v. Anwar Khan (A I R 1946 Pat, 104). In both these cases it was held that once a revision petition had been admitted by the High Court it has got to be considered on its merits and the plea of limitation does not apply since no period of limitation is prescribed by law.

9. It appears that the Patna High Court also follows the same practice as the Calcutta High Court. In the Lahore High Court, however, as appears from the case of Des Raj v. Emperor (A I R 1934 Lah. 264), there is no rule of practice that Criminal revisions are to be filed within any fixed period of time. So far as they' Calcutta High Court is concerned, the practice which has been consistently followed is that the revision to the High Court should be made within sixty days of the order complained of deducting the time taken in prosecuting with due diligence an application under section 438 of the Code of Criminal Procedure in the Court below. But so far as the District Courts axe concerned, the practice is that the applications for revision before Courts of Sessions or District Magistrates are filed within thirty days of the order complained of by analogy with the period of limitation provided for in cases of appeals. This rule is also followed more or less strictly. It is, in my view, also highly desirable that a uniform practice should prevail in such cases ; but at the same time, it cannot be said that this rule should become an inflexible one and should not be departed from even in exceptional cases. But where it is so departed from, it would only be reasonable to expect that some reason for such departure would be given indicat ing the exceptional nature of the circumstance upon the ground of which the departure is being made.

10. It would neither be proper nor desirable to lay down any more specific rule but I must leave it to the good sense of the Courts below to determine in which case a departure should c be made from this well accepted rule of practice.

11. Applying this test to the present case, I find it, in the absence of any explanation whatsoever for the delay, difficult to say whether any such exceptional circumstance existed which prevented the petitioner before the learned Sessions Judge to move the Court even within thirty days of coming to know of the order of discharge. It is regrettable that the learned Sessions Judge failed to notice that the application was being made before him much beyond the usual period of thirty days. Hence it is impossible to speculate as to what he would or would not have done if his attention had been drawn to this fact.

12. It is also true that notwithstanding that the learned Sessions Judge has entertained an application which was unduly delayed by any reasonable standard, my discretion is not fettered in the matter. If I am satisfied, on a consideration of the merits of the case, that the learned Sessions Judge has done substantial justice, I am not bound to interfere in the matter or to set aside the order of the Sessions Judge.

13. On this point, it has, of course, been urged before me with considerable force that the learned Judge should have taken into account that he was interfering with an order of discharge of certain persons who were, since 1957, being harassed with this prosecution. On the other hand, it is urged with equal force on behalf of the complainant that the patently illegal order of the Magistrate has been rightly set aside, for having regard to the gravity of the offences with which the accused persons were charged, the interest of justice demanded that the trial should proceed. My attention is drawn to the fact that the charges against the accused persons were of a serious nature. They were charged with having committed a serious offence of rioting armed with deadly weapons including guns and of having assaulted even women hiding in their houses and to have destroyed pro perties of considerable value including homesteads of several persons. Indeed, it appears from a perusal of the order‑sheet itself that the prosecution had on many occasions even opposed bail prayed for by the accused persons and there is nothing on the record to show that the prosecution were in any way negligent in the conduct of the prosecution. For the delay in the trial the accused persons themselves were to some extent responsible.

14. Having given my anxious consideration to these facts, as also to the fact that an order of discharge should not ordinarily be interfered with unless as held in the case of Krishna Pillai and 1 others (A I R 1923 Mad. 134), " the prospect of any public advantage from, the case being re‑opened," is found to exist.

15. The offences charged in the present case are without any doubt of a serious and grievous nature. If the allegations of the prosecutions be true, it was a riot on a large scale, resulting in the destruction of valuable properties including food‑stuffs and residential dwellings as also injuries to a large number of persons including women‑folk. The prospect of there being public advan tage in the re‑opening of the case is, therefore, patent. I am further strengthened in this view by the consideration that no greater harm or disadvantage will accrue to the accused persons by the re‑opening of the case at this stage, for indeed, they only having been discharged under section 253 of the Code of Criminal Procedure, are not exempt from being re‑prosecuted on the same charges.

16. To my mind, starting of the case de novo would be more advantageous to the accused persons than if the case is recom menced from the stage at which it stopped. In these circumstances, although I am definitely of the view that the learned Sessions Judge should not have entertained a belated application without any proper explanation for the delay and that the rule of practice that no application for revision should normally be allowed to be moved in the Courts below beyond thirty days of the date of the order complained against ; I do not propose to interfere in this matter, because, in my view, substantial justice has been done by the learned Sessions Judge. This rule is accordingly discharged. Let the records be sent down immediately so that the case may be disposed of as expeditiously as possible. K. B. A. Rule discharged.