- (1.) This revisional application under Section 397 read with S. 401 and Section 482 of the Code of Criminal Procedure is directed against the order dated 9-10-96 passed by the Metropolitan Magistrate, 4th Court, Calcutta in complaint case No. C/298 of 95. The relevant facts leading to the filing of this application may be summarised as follows :-According to the petitioner, the O. P. Nos. 1 and 2 M. P. Agarwala and Umethmal Dugar contravened the provisions of Cl. (b and d) of sub-section (1) of Section 9 of the Foreign Exchange Regulations Act, 1973 during the financial year, 1993 and thereby allegedly committed an offence punishable under Section 56 of the said Act. Accordingly, the petitioner being competent officer of the Enforcement Directorate, Foreign Exchange Regulations Act filed a complaint in 1995 before the Court of Chief Metropolitan Magistrate, Calcutta and the complaint was numbered as C-298/95. In the body of that complaint names of 8 prosecution witnesses including that of the complainant were given. The learned Metropolitan Magistrate took cognizance of the offence against the two accused and issued summons upon them and in response thereto they appeared before that Court and on their application under Section 205, Cr. P. C. their personal attendance in the Court was dispensed with and they were allowed to be represented by their respective lawyers until further orders. On 9th October, 1996 when the case was fixed for taking steps by the complainant, the complainant was found absent on repeated calls during 10.15 a.m. to 11.15 a.m. while both the accused persons were found represented by their Advocates. The learned Magistrate took the evidence of the complainant as closed passing the impugned order thereby fixing 5th December, 1996 as the date for framing charge. Then the date was shifted to 9th January, 1997 when the complainant (the present petitioner) filed a petition for fixing a date for evidence stating therein that evidence in the case had not been started and as such it was not possible for the Court to frame charges against the accused in the absence of oral or documentary evidence, but that petition was rejected by the Court with the observation that on 9th October, 1996 in spite of repeated calls none on behalf of the prosecution had turned up and hence the evidence for the prosecution was taken as closed and the date for framing of charge was fixed, but even then the prosecution did not care to move before the higher Court against that order, and had come with the said petition without assigning any reason why the prosecution did not adduce evidence or why none on behalf of them turned upon that date to represent the prosecution, nor there was any prayer for recalling the order of closure of evidence and hence the petition of the prosecution for fixing the date for evidence was rejected and a date for framing of charge was again fixed, namely, 30-1-97. On that date the complainant again filed an application praying for an order recalling the order dated 9th October, 1996 on the ground that otherwise the complainant would suffer irreparable prejudice for laches on the part of its Advocate but the learned Metropolitan Magistrate rejected that petition also. Hence the complainant decided to move this Hon'ble Court by filing this application in its revisional jurisdiction challenging the order dated 9th October, 1996 as illegal and unsustainable.
(2.) In this connection, the petitioner has made in the revision-petition a prayer for condonation of delay in the filing of this revisional application and by way of explanation of the delay he has stated that while the period of limitation of 90 (ninety) days was to expire on January 7, 1997, he on that day filed an application before the Court below for obtaining the certified copy of the impugned order and he could obtain this certified copy as late as on 8th April, 1997. He then handed over these certified copies along with other relevant documents to his Advocate Mr. D. Chakraborty Thakur for moving this revisional application before this High Court against the impugned order but the learned Advocate advised him that such a time barred revisional application should not be admitted unless the delay of 228 days was condoned on the basis of a separate application for condonation of delay accompanying the revisional application and in the process further delay of about a month took place and ultimately he filed the revisional application on 14th May, 1997 challenging the legality and propriety of the impugned order of the learned Metropolitan Magistrate dated 9th October, 1996 passed in Case No. 298/95. The grounds on which he has challenged the order of the learned Magistrate are that the Court below ought to have deferred the date for examination of prosecution witnesses suo motu when the complainant was found absent and that the impugned order became defective and it could not be cured even applying Section 465 of the Code. His further contention is that unless the delay of 228 days in filing of this application is condoned and the revisional application is admitted, heard and decided in favour of the petitioner, it would suffer irreparable prejudice.
(3.) Two issues in the main have been raised in this hearing. First, whether the delay in filing of this application can be condoned and if not whether the application being barred by limitation and being incapable of admission is liable to be dismissed in limine. The second point is whether the revisional application if not found time barred can succeed on merits.;