Calcutta High Court (Appellete Side)
Sanjib Bhattacharjee vs The State Of West Bengal & Anr on 8 August, 2025
324. 08.08.2025
Bd.
Ct. 29
CRR 2033 of 2019
Sanjib Bhattacharjee
Vs.
The State of West Bengal & Anr.
Mr. Achin Jana
Mr. Pinaki Brata Ghosh
Mr. Suman Chakraborty
Mr. Prosenjit Ghosh
Mr. Abhinaba Roy
Mr. Koushik Karmakar
Mr. Bhaskar Dalui
Ms. Chetna Rustagi …for the petitioner
Mr. Mrityunjoy Chatterjee
Mr. Arindam Paoli …for the O.P.No.2
This application has been preferred challenging the order
dated 18th December, 2018 passed by learned Chief Judge, City
Sessions Court, Calcutta in connection with Criminal Appeal No.
54 of 2018.
By the impugned order court below has rejected the
appellant’s application for condonation of delay in preferring
appeal against acquittal, filed under section 5 of the Limitation
Act.
It is submitted on behalf of the petitioner that the a police
case was initiated on the basis of a complaint lodged under
section 156(3) of Code of Criminal Procedure being Amherst Street
Police Station Case No. 44 of 2007 dated 20th February, 2007, and
after completion of investigation police submitted charge-sheet
under section 419/420/408 of the IPC. After conclusion of trial,
learned trial court was pleased to acquit the accused
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person/opposite party no.2 herein under Section 248(1) of the
CrPC. on 23rd June 2017.
It is submitted on behalf of the complainant/petitioner that
he applied for obtaining certified copy of the said judgment of
acquittal on 7th July, 2017 before the copying department but the
copying department completed the process of assessment only on
5th March, 2018. He further submits that due to such inordinate
delay, he could not collect the information in right time and, as
such, the application for obtaining certified copy was struck off.
Thereafter, he again applied for certified copy of the impugned
judgment and order of acquittal and the same was ready for
delivery to him on 28th May, 2018.
The petitioner in order to ascertain the reason for the
inordinate delay caused by the copying department had also made
an application seeking information in terms of Right to
Information Act, 2005 and in response to such query, learned
Public Information Officer was pleased to inform that the
petitioner had applied for the certified copy on 7th July, 2017 but
the case record against such application was provided to the
Assistant Clerk of the copying department only on 28th February,
2018.
It is further submitted on behalf of the petitioner that as
soon as he obtained the certified copy of the impugned order of
acquittal he preferred aforesaid appeal under Section 372 of the
Code of Criminal Procedure before learned Chief Judge, Sessions
Court, Calcutta being aforesaid Criminal Appeal No.54 of 2018.
He further submits that due to aforesaid reasons, delay of
347 days in preferring the said appeal had been computed by the
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department reckoning from the date of delivery of judgment and,
therefore, he also filed application under Section 5 of the
Limitation Act on 4th July, 2018 for condonation of delay.
However, learned Court below by the impugned order rejected the
said application under Section 5 of the Limitation Act on the
ground that the appellant/petitioner herein failed to make out
sufficient cause in preferring the appeal within time and, as such,
he refused to admit the appeal.
Being aggrieved by the said order, learned counsel appearing
on behalf of the petitioner submits that the impugned order is
vague, baseless, improper and court below failed to consider that
the petitioner was not responsible for the entire period of delay
and it was incidental and, therefore, not intentional. He further
contended that the Court below did not consider that the appeal
was bona fide, and there were every chance to prove good grounds
for succeeding the appeal if it was heard on merits. He further
submits that it is trite law that on the ground of a mere technical
error, a meritorious appeal should not be thrown away. He
should have taken liberal view, while adjudicating the issue of
condonation of delay in order to unearth the issue of delay and,
therefore, he prayed for setting aside the order impugned and to
admit the appeal for hearing on merits.
Mr. Mritunjay Chatterjee, learned counsel appearing on
behalf of the opposite party raised vehement objection contending
that the appellant/petitioner herein ought to have acted diligently
for getting the certified copy of the Trial Court’s judgment and
that there is no fixed mechanism about intimating the applicant
when the certified copy gets ready to deliver. The petitioner ought
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to have prompt in his prayer for obtaining certified copy and as
after completion of the process of assessment, the petitioner failed
to put the requisites i.e., folios and court fees, the copying
department rightly struck down his prayer for certified copy on 9th
March, 2018. Accordingly, it was a gross negligence on the part
of the petitioner and for which the court below elaborately
discussed the issue in the order impugned and ultimately came to
a finding that the petitioner has failed to make out sufficient
cause and for which his application under Section 5 of the
Limitation Act is liable to be dismissed. He further submits that
the order impugned is justified and does not call for interference
by this Court, invoking this Court’s jurisdiction under Section 482
of the Code.
On perusal of the order impugned, it appears that the Trial
Court found that the explanation given by the applicant is
concocted and court below did not find sufficient reason or cogent
ground for condonation of delay and as such court below held
that petitioner herein is not entitled to get favour for condonation
of delay. He further observed that no premium can be given to the
petitioner/appellant for total lethargy and utter negligence and
that the prayer for condonation of delay cannot be allowed as a
matter of course.
Having considered the submissions made on behalf of both
the parties, it appears from information given under RTI Act, 2005
that impugned judgment was delivered on 23rd June, 2017 and
the petitioner/appellant prayed for obtaining certified copy on
07.07.2017. It further appears that there is no dispute with the
fact that the process of assessment for obtaining certified copy
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was not made instantly and an abnormal delay was caused for
whatever reasons, in making assessment about filing requisites. It
is also nobody’s case that after about eight months, when
assessment completed, the petitioner was informed. It further
appears from information supplied to petitioner on 6th June, 2018
that assessment was done on 05.03.2018 and application was
struck off on 09.03.2018. It is not unnatural that petitioner or his
agent was not in a position to have constant touch in taking
information about readiness of assessment for a period of eight
months. Therefore there is sufficient reason to believe that due to
such abnormal delay in making assessment by the department,
the petitioner was not aware about the date when the department
had completed the process of assessment.
Therefore the instant issue is to be judged on the touchstone
of ground reality that in the adversarial legal system, the usual
practice is that parties entrusted their lawyer or law clerks to
make necessary prayer for obtaining certified copy and the
obligation of the parties is to select his lawyer or law clerk and
then on payment of fees demanded by him, to trust the said agent
to do the rest of the things and in most of the cases he does not
have any knowledge about procedure for obtaining certified copy
from the department concerned. Parties are not supposed to act
as watchdog of his agent as he believes that his advocate or law
clerk will look after his interest.
Apart from that appellant/complainant would not have
gained in any manner whatsoever by not filing the appeal within
the period of limitation. Delay alone is not enough to turn down
Appellant’s prayer for admission to shut the door against him
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unless the explanation given in the prayer for condonation, does
smack of malafides or it has been put forth as part of a dilatory
strategy. Of course there cannot be a straight jacket formula for
accepting or rejecting explanation furnished for the delay in
taking steps but at the same time court should not proceed with
the tendency of finding fault with the cause shown and reject the
petition.
Looking at the explanation given in the application and
keeping in view the weighty consideration that so far as
practicable, an appellant ought not to be denied a hearing of
appeal on merit, I find that the impugned rejection order on the
ground that the petitioner was lethergetic and/or negligent in
getting certified copy in time is perverse, specially when there is
nothing to show that prayer for condonation of delay smacks of
malafide or has been made as part of dilatory strategy and
therefore impugned order is liable to be set aside.
In such view of the matter, the order impugned dated 18th
December, 2018 passed in Criminal Appeal No. 54 of 2018 is
hereby set aside.
The delay in filing the appeal by the petitioner/appellant is
hereby condoned.
Learned court below is directed to admit the appeal and to
dispose of the same on merit uninfluenced by any observation
made herein, at the earliest after giving opportunity to both the
parties to contest.
CRR 2033 of 2019 is accordingly disposed of.
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Urgent Photostat certified copy of this order, if applied for, be
given to the parties on compliance of requisite formalities.
(Dr. Ajoy Kumar Mukherjee, J.)