- (1.) THE petitioner has challenged the order dated 27.08.2009 passed by the Additional District&Sessions Judge, Sambhar Lake, District Jaipur whereby the appeal filed by the petitioner under Section 341 Cr.P.C. has been dismissed on the ground that the appeal was hit by limitation.
(2.) MR. Mahesh Gupta, the learned counsel for the respondent No.2., has raised a preliminary objection that according to Section 341(2) Cr.P.C., no revision would lie against an order passed either under Section 340 Cr.P.C., or under Section 341 Cr.P.C. Therefore, the present revision petition is not maintainable. On the other hand, Mr. Abhijeet Sharma, the learned counsel for the petitioner, has contended that the impugned order was passed under Section 5 of the Limitation Act and not under Section 341 Cr.P.C. Therefore, the revision is maintainable against the impugned order. Heard the learned counsel for the parties on the preliminary objection and perused the impugned order. Section 5 of the Limitation Act is read as under :- 5. Extension of prescribed period in certain cases - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.Explanation - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. Section 5 of the Limitation Act deals with the issue whether any appeal or an application should be admitted or not by the Court ? An application filed under Section 5 of the Limitation Act, thus, cannot exist independently of a memorandum of an appeal or an application. Admittedly, the appeal was filed under Section 341 Cr.P.C. along with an application under Section 5 of the Limitation Act. Therefore, the issue before the Court was whether the appeal filed under Section 341 Cr.P.C. should be admitted or not ? According to the impugned order, since the appeal was hit by limitation, therefore, the appeal has been dismissed. Since the appeal has been dismissed, according to the bar contained in Section 341(2) Cr.P.C., a revision would not lie to this Court. Therefore, the preliminary objection raised by the learned counsel for the respondent No.2 is worthy of acceptance.
(3.) IN this view of the matter, the petition is not maintainable. It is, hereby, dismissed as unmaintainable.;