Court No. - 70
Case :- CRIMINAL MISC. WRIT PETITION No. - 15055 of 2019 Petitioner :- Om Prakash Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Arvind Kumar Mishra Counsel for Respondent :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the petitioner and learned Additional Government Advocate representing the State and perused the materials available on record.
This writ petition under Article 226 of the Constitution of India has been preferred by the petitioner with a prayer to quash the order dated 12.4.2019 passed by Commissioner Gorakhpur Division Gorakhpur in Appeal No. C-201905000000527 of 2019, Case No. 00527 of 2019 (Computerized Case No. 1905000000527) (Om Prakash vs. District Magistrate), under Section 6 of U.P. Control of Goondas Act, whereby appeal preferred by the petitioner has been rejected on the ground of limitation, which has been filed against the externment order dated 10.12.2018 passed by the District Magistrate, Maharajganj in Case No. 306 of 2017 (Computerized Case No. D201705470306) (State vs. Om Prakash), under Section 3(1) of U.P. Control of Goondas Act, by which the petitioner has been banished for six months from entering the limits of district Maharajganj.
It is submitted by learned counsel for the applicant that the petitioner against the order dated 10.12.2018 has preferred appeal on 8.3.2019 along with reasonable explanation for delay in filing the appeal. It is also submitted that in paragraph No. 9 of the grounds of appeal, the petitioner has explained the delay mentioning that the petitioner had gone out of district for labour work, therefore, he could not know about further dates after 3.11.2017, and when he returned back, then he came to know about the order dated 10.12.2018. Thereafter, he has obtained the copies of the orders dated 10.12.2018 and 22.2.2019 and filed appeal. It is also stated that the delay in filing the appeal was not deliberate, but due to bona fide reason, therefore, petitioner is entitled to get benefit of Section 5 of the Limitation Act, but the Commissioner Gorakhpur Division Gorakhpur has wrongly and illegally did not condone the delay in filing the appeal by the petitioner. Therefore, impugned order dated 12.4.2019 is liable to be quashed by this Court.
Per contra, learned Additional Government Advocate submitted that under Section 6(1) of U.P. Control of Goondas Act limitation for filing appeal is only fifteen days. It is admitted facts that appeal has been preferred by the petitioner on 8.3.2019 against the order dated 10.12.2018 beyond fifteen days, therefore, no illegality has been committed by the Commissioner in rejecting the appeal of the petitioner by impugned order dated 12.4.2019, and as such, writ petition has no force and is liable to be dismissed.
After hearing the argument of learned counsel for the parties and perusing the record, I find that there is no dispute about the fact that the petitioner has preferred appeal on 8.3.2019 against the order dated 10.12.2019, as such there is delay of about 74 days in filing appeal by the petitioner.
Considering the law of Section 5 of the Limitation Act it is well settled by the Apex Court in case of State (N.C.T. of Delhi) vs. Ahmed Jaan, 2008 (10) JT 179 that the expression 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. Whether explanation furnished would constitute 'sufficient cause' or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. However, courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party.
After going through the order dated 12.4.2019, I find that the Commissioner Gorakhpur Division Gorakhpur has recorded finding that the petitioner was very much aware about the proceeding against him before the District Magistrate, but he deliberately became absent, therefore, it appears that the petitioner has no fear of law.
On the facts and circumstances of the case, this Court feels that liberal approach should be adopted while condoning the delay in a pragmatic manner and pedantic approach calling upon a party to explain each days delay should be avoided. In view of above, impugned order dated 12.4.2019 is liable to be quashed.
Accordingly, the order dated 12.4.2019 passed by the Commissioner, Gorakhpur Division Gorakhpur/respondent No. 2 in Appeal No. C-201905000000527 of 2019, Case No. 00527 of 2019 (Computerized Case No. 1905000000527) (Om Prakash vs. District Magistrate), under Section 6 of U.P. Control of Goondas Act is hereby quashed with a direction to the Commissioner Gorakhpur Division Gorakhpur to decide the aforesaid appeal of the petitioner in accordance with law within a period of three weeks from the date of production of certified copy of this order.
Accordingly, the petition is partly allowed.
Order Date :- 29.5.2019 Sumaira