Dr M A Mazed and others Vs. Bangladesh represented by the Solicitor, 9 MLR (AD) (2004) 164

Case No: Criminal Appeal No. 3 of 2002

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: KZ Alam,,

Citation: 9 MLR (AD) (2004) 164

Case Year: 2004

Appellant: Dr M A Mazed and others

Respondent: Government of Bangladesh

Subject: Procedural Law,

Delivery Date: 2003-12-10

 
Supreme Court 
Appellate Division
(Criminal)
 
Present:
Md. Ruhul Amin J
Syed JR Mudassir Hussain J
MM Ruhul Amin J 
 
Dr. MA Mazed and others
............................Appellants
Vs.
Bangladesh, Represented by the Solicitor
..........................Respondents  
 
Judgment
December 10, 2003.
 
The Code of Criminal Procedure, 1898 (V of 1898)
Section 417(3) 
'Special limitation' as provided in sub‑section (3) of section 417 of Cr. P. C.  has no manner of application in respect of an appeal arising from the judgment of acquittal passed in a case initiated not upon a petition of complaint but registered in a police station upon lodging of an Ejahar. In view of the provisions as in Article 157 of the Limitation Act providing period of 6 months for filing an appeal by the Government against the order of acquittal, the application for condonation of delay was filed upon misconception……(9 & 10) 
 
Lawyers Involved: 
KZ Alam, Senior Advocate, instructed by Md Ahsanullah Patwary, Advocate‑on‑Record‑For the Appellants.
Ex-parte-For the Respondent.
 
Criminal Appeal No. 3 of 2002.
(From the judgment and order dated August 14, 2001 passed by the High Court Division in Criminal Rule No. 88(R) of 2001).
 
JUDGMENT
 
Md. Ruhul Amin J.
 
This appeal by leave is against the judgment and order dated August 14, 2001 of a Division Bench of the High Court Division in Criminal Rule No. 88(R) of 2001 (arising from Government Appeal No. 8 of 2001). The High Court Division by the aforesaid judgment condoned the delay of 150 days (in the application for condonation of delay 163 days was mentioned) in filing the appeal against the judgment and order dated June 29, 2000 of the 1st Court of Assistant Sessions Judge, Gazipur, passed in Sessions Case No. 27 of 2000 (corresponding GR Case No. 670 of 1998. Joydebpur PS Case No. 8(9) of 1998). The learned Assistant Session Judge by the said judgment acquitted the appellants of the charges under sections 143, 448, 427, 342, 386 and 380 of the Penal Code. The Government as against the order of acquittal has filed Government Appeal No. 8 of 2001. The appeal so filed being out of time by 150 days filed an application under section 5 of the Limitation Act seeking condonation of delay of the said days and thereupon Rule, Criminal Rule No. 88(R) of 2001 was issued. 
 
2. The appellants entered appearance in the Rule and opposed the prayer for condonation of delay. The High Court Division condoned the delay upon observing that the ground of delay cannot be characterized "to be loose and the application cannot be axed down. The delay of 150 days on the part of the Government who remains a slow moving juristic person, thus, demands due consideration and the delay caused may be condoned to secure ends of justice". 
 
3. As against the judgment and order of the High Court Division appellants filed a petition seeking leave to appeal contending that in view of the provision of section 417(1) of the Code of Criminal Procedure (Cr. P. C.  though Government present an appeal to the High Court Division from an original order of acquittal passed by any Court of Session but under sub‑section 3 thereof no appeal from an order of acquittal is entertainable by the High Court Division after expiry of 60 days from the date of an order of acquittal and the special limitation under section 417(3) of the Cr. P. C. "left no scope for application of section 5 of the Limitation Act inasmuch as there being no cogent reason explaining the delay, there is no scope in law to condone the delay to secure ends of justice". The further contention of the learned Counsel for the appellants was that delay was not explained upon stating cogent reason for the same. 
 
4. The aforesaid Session Case was registered on receiving the records of GR Case No. 670 of 1998 which was registered in connection with Joydebpur PS Case No. 8(9) of 1998 initiated upon a written first information report lodged on 3‑9­1989 by the then Director General of Bangladesh Agriculture Research Institute (BARI). The police on receiving the written Ejaher from the then Director General of the BARI registered the aforesaid case on 3‑9‑1998. On completion of investigation the investigating agency submitted charge‑sheet on 15‑9‑1998 under sections 143, 448, 342, 3 86, 3 80 and 427 of the Penal Code. 
 
5. While the GR Case No. 670 of 1998 was pending before the Court of Additional District Magistrate, Gazipur, the appellants filed an application for transfer thereof to the Court of Session. The Court of Session upon allowing the said application for transfer withdrew the GR case from the Court of Additional District Magistrate and transferred the case to the Court of Assistant Session Judge. The Court of Assistant Session Judge acquitted the appellants of the charge leveled under the aforementioned sections of tile Penal Code. 
 
6. It is evident from the judgment of the learned Assistant Judge that Joydebpur PS Case No. 8(9) of 1998 was started upon receiving a written first information report from the then Director General of the BARI. The police investigated the said case and on completion of investigation submitted charge‑sheet against the appellants. So it is seen that the case against the appellants under different sections of the Penal Code was not initiated upon a petition of complaint before the Court of Magistrate. 
 
7. Provision of section 417 of the Code of Criminal Procedure relates to the matter of filing appeal against order of acquittal and the said section reads as:     
 
"(1) Subject to the provisions of sub­section (4), the Government may in any case direct the public prosecutor to present an appeal. 
(a) to the High Court Division from an original or appellate order of acquittal, passed by any Court of Session, 
(b) to the Court of Session from an original or appellate order of acquittal passed by any Magistrate. 
(2) Notwithstanding anything contained in section 418 if such an order of acquittal is passed in any case instituted upon complaint, the complainant may present ail appeal to the High Court Division against such acquittal oil any ground of appeal which involves a matter of law only. 
(3) No appeal by the complainant from an order of acquittal shall be entertained by the High Court Division after the expiry of sixty days from the date of the order of acquittal. 
(4) If, in any case, the admission of ail appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub‑section (1)". 
 
8. As it has already been stated that appellants being acquitted by the Court of Session the Government filed the appeal Government Appeal No. 8 of 2001. The appeal, so tiled was Out of time by 150 days. The Government filed an application under section 5 of the Limitation Act seeking condonation of delay and thereupon Rule, Criminal Rule No. 88(R) of 2001, was issued. The High Court Division upon hearing both the sides condoned the delay. As against that leave was obtained contending that although sub‑section (1) of section 417 provides for filing appeal by the Government to the High Court Division "from an original or appellate order of acquittal by any Court of Session", but Government having had filed the appeal "after expiry of 60 days from the date of the order of acquittal, High Court Division was in error in condoning the delay since upon resorting to the provision of section 5 of the Limitation Act the High Court Division was not competent to condone the ‘special limitation' as provided in section 417(3) of the Code of Criminal Procedure." 
 
Sub‑section (3) of section 417 of the Cr. P. C. provides that an appeal filed by a complainant from an order of acquittal after expiry of 60 days from the date of the order of acquittal cannot be entertainable by the High Court Division. So, if complainant intends to file an appeal against an order of acquittal he is to file such appeal before the High Court Division before expiry of 60 days from the date of the order of acquittal. 
 
9. Session Case No. 27 of 2000 was registered in the Court of Assistant Session Judge on receiving the records of the GR Case No. 670 of 1998 which was registered in connection with Joydebpur PS Case No. 8(9) of 1998. The said Joydebpur PS Case was registered on the basis of an Ejaher lodged by the then Director General of BARI on 3‑9‑1998 and on completion of investigation police submitted charge‑sheet on 15‑9‑1998. So, the case against the appellants was not registered on a petition of complaint before the Court of Magistrate, rather the case was registered by the Officer‑in‑charge of the Joydebpur Police Station on receiving written Ejaher from the then Director General of BARI. This being the position we are of the view that the limitation as has been provided in sub‑section 3 of section 417 of the Cr. P. C. as to filing an appeal by the complainant against an order of acquittal has no manner of application in the case initiated against the appellants on receiving a written Ejaher by the officer‑in‑charge of the Joydebpur Police Station. This being the position contention of the learned Counsel for the appellants that High Court Division in view of the provision of sub‑section (3) of section 417 of Cr. P. C.  was in error in condoning the 'special limitation' as provided therein. The 'special limitation as has been provided in sub‑section (3) of section 417 of Cr. P. C. is applicable in a case where a complainant intends to file an appeal before the High Court Division against order of acquittal passed in a case registered upon a petition of complaint. A case registered upon lodging of an Ejaher in a police station and culminating in filing of charge‑sheet and thereupon person (s) so recommended by the police for prosecution was put on trial and the trial ends in acquittal and thereupon if Government files an appeal either before the High Court Division or Court of Session the 'special limitation' as has been provided by sub‑section (3) of section 417 of Cr. P. C. shall have no manner of application. If an appeal against an order of acquittal is filed by the Government either before the High Court Division or the Court of Session beyond the period as provided in Article 157 of the Limitation Act, 1908, then in such a case an application seeking condonation of delay filed under section 5 of the Limitation Act is very much entertainable if the Court is satisfied with the explanation offered as to how delay occurred, then is quite competent to condone the delay. It may be mentioned Article 157 of the Limitation Act provides for 6 (six) months time for filing an appeal from an order of acquittal. Since period of limitation for filing an appeal against acquittal has been prescribed by the provision of the Limitation Act and, as such, in view of provision of section 5 of the Limitation Act the Court if is satisfied with the explanation as to how delay occurred in filing the appeal within the prescribed time then it is very much within its jurisdiction to condone the delay and to make direction to register the appeal. In the instant case we have seen that the delay was of 150 days and the Government along with the memorandum of the appeal filed an application under section 5 of the Limitation Act seeking condonation of delay upon explaining the fact in the background of which delay occurred. The High Court Division was satisfied with the explanation so offered in support of the prayer for condonation of delay and thereupon condoned the delay in filing the appeal by the Government against the judgment and order of acquittal passed in Session Case No. 27 of 2000 of the 1st Court of Assistant Sessions Judge. Since provision of section 417 (3) Cr. P. C.  has no manner of application to the appeal filed by the Government against the order of acquittal passed by the Court of Assistant Sessions Judge and further, in view of the provisions as in Article 157 of the Limitation Act providing period of 6 months for filing an appeal by the Government against the order of acquittal, the application for condonation of delay was filed upon misconception.
 
10. In view of our discussions made hereinabove we do not find any substance in the contention of the learned Counsel for the appellants that in view of the 'special limitation' as provided in sub‑section (3) of section 417 of Cr. P. C.  the High Court Division was in error in condoning the delay prayed for by the Government in filing the aforementioned Government Appeal No. 8 of 2001 since 'special limitation' as provided in sub‑section (3) of section 417 of Cr. P. C.  has no manner of application in respect of an appeal arising from the judgment of acquittal passed in a case initiated not upon a petition of complaint but registered in a police station upon Wong of an Ejahar and the police submitted charge‑sheet and then the case was tried and ended in acquittal and as against that Government files an appeal. 
 
11. In the background of the discussions made hereinbefore we find no merit in this appeal.
 
Accordingly, the appeal is dismissed.
 
Ed.