M.R.Sharma, J. - (1.) THIS is a petition under section 5 of the Indian Limitation Act, with a prayer that the time spent in prosecuting the revision petition before the learned Additional Sessions Judge, Ferozepore, should be excluded for determining the period of limitation.
(2.) THE learned trial Magistrate decided this case on 4th of December, 1972 and the revision petition filed against the said order of the trial Magistrate was dismissed on 3rd of January, 1974 by the learned Additional Sessions Judge, Ferozepore. Under the rules contained in High Court Rules and Orders, Chapter 1 -A(b) Volume V, it has been mentioned that revision petitions under sections 436 and 439 of the Code of Criminal Procedure, should be filed before the learned Sessions Judge or the learned District Magistrate, as the case may be. In the fact of this provision, no petitioner could come and straightaway file a petition in the High Court. Now if the learned Sessions Judge does not decide the revision petition expeditiously and allows the time of ninety days to expire, the petitioners will be left with no remedy unless of course this time is excluded. When the High Court Rules and Orders themselves lay down that petition should be filed before the learned Sessions Judge, it would have to be assumed that the petitioners prosecute their revision petition in a bona fide manner before the said Judge and had sufficient cause for not filing the petition in the High Court. Even if Article 131 is strictly construed, benefit of this period should be given to the petitioners so that their interest does not suffer because of the delay caused by the learned Sessions Judge in disposing of the revision petition, otherwise the principle that the act of a Court shall prejudice no one shall have no meaning. The learned counsel for the respondent has brought to my notice a Single Bench judgment reported in Inderjit Singh v. Ch. Bansi lal Chief Minister, Haryana, Chandigarh,, (1973) 25 PLR 619 in which the time spent in prosecuting the revision petition before the learned Sessions Judge was not excluded for determining whether the revision petition had been filed within limitation in the High Court or not. That case is, however, distinguishable on facts because no application under section 5 of the Indian Limitation Act praying for extension of time had been made in that case, even though the case remained pending for a long period. That case is no authority for the proposition that the High Court can under no circumstance extend the period of limitation. I am of the considered view that the time spent for prosecuting the revision petition in the Court of the learned Sessions Judge should be excluded for determining the period of limitation when a revision petition is filed in this Court. In any case, the benefit of section 5 of the Indian Limitation Act should be freely given under these circumstances. There is some authority for the proposition that a prayer for getting the benefit of section 5 of the Indian Limitation Act can also be orally made at the time when the High Court entertains the revision petition, but since in this case, a regular application supported by a duly sworn affidavit has been filed, it is not necessary to pursue this argument any further.
(3.) FOR the reasons mentioned above, I allow the benefit of section 5 to the petitioners and order that their revision petition should be heard and decided on merits. Stay to continue.;