Format additional affidavit before Session Judge

advtanmoy 05/12/2018 5 minutes read

BEFORE THE LD SESSION JUDGE AT HOWRAH

Criminal Appellate Jurisdiction

Cr. Appl NO. 109 OF 2018

IN THE MATTER OF An Additional Affidavit in connection with an Application u/s 5 of the Limitation Act filed on 20.9.2018 along with An application U/S 29 of Domestic Violence Act 2005

Smt xxxxx Bose

….. Applicant

R/o xxxxxx (Office Para) PS Deganga, Dist 24 Pargana(N), Pin 743424

Smt xxxxx Bxxxx

D/o xxxxx

PO: GIP Colony PS: xxx

Howrah-12

……..Respondent

AND

An Additional affidavit in support of an application u/s 5 of the Limitation Act filed on 20.9.2018 along with An application U/S 29 of Domestic Violence Act 2005, for condonation of unintentional one day delay for filing the Memo of Appeal presented on 20.9.2018.

Humble Additional affidavit on behalf of the Smt Krishana Bose-

Most Respectfully:

I Smt Krishna Bose w/o Late Shibranjan Bose R/o Vill Post Devalaya (Office Para) PS Deganga, Dist 24 Pargana(N), Pin 743424, aged around 65 years, by faith Sanatan Dharmin, by Occupation housewife and mother of Manas Bose do hereby solemnly affirm as below :

That I have filed a Memo of Appeal in connection with an Impugned Order dated 01.08.2018 passed by the Ld. 5^th Judicial Magistrate in Misc Case No. 283 of 2015 under Domestic Violence Act, 2005 and thereby the Court rejecting an objection filed by/ on behalf of the respondent for rejection of the Affidavit- in- Chief on the ground mentioned therein.
That at the time of filing on 20.09.2018 it was found that one day period of limitation has been crossed. At the time of filing on 20.09.2018 the dealing lawyer Smt. Tandra Ghatak, Advocate hurriedly drafted an application under section 5 of the Limitation Act for condonation of delay at 3.50 PM. and filed it along with the Memo of Appeal.
That the above said one day delay was unintentional and due care was not out of the place while filing the memo of appeal, so, therefore, some formal and additional facts to be placed for better appreciation of the circumstances of delay.
That the impugned order has been passed on 01.08.2018 and on the very next day that is on 02.08.2018 requisition for a certified copy has been filed which was received on 20.08.2018 and then the Memo of Appeal has been filed on 20.09.2018. Therefore, in the calculation of one day has been detected and objected by the Filing Counter. But when the dealing advocate counted 30 days of limitation it was counted as within the period of limitation.
That on 19.09.2018 at 3.30 PM. when Smt. Tandra Ghatak, Advocate went to file the Memo of Appeal, then at Filing Section Electricity was not available and filing was not taken due to load shedding. Therefore, Smt. Tandra Ghatak thought that till she had one day that is the day (20.09.2018) when statutory 30 days would cross to file the Memo. On 20.09.2018 several cases were in the diary and the law clerk was not available due to his sleekness, therefore, after dealing with the cases before multiple Courts it was only 3.30PM. she could manage to go with the Memo for filing and the filing section objected for one day delay and pressed for a Section 5 application under Limitation Act. By the time it was around 4 O clock Tandra Ghatak hurriedly drafted an Application under Section 5 to save the limitation and filed it.
That again previously on 10.09.2018 a Revision was preferred to challenge the Impugned Order with an understanding that Session Court under Criminal procedure Code is superior above the Magistrate Court, impose ordinary Revisional Jurisdiction against the order of Magistrate. Therefore a revision was filed and the same was heard on 14.09.2018 and the matter was disposed of as rejected. The Court observed that only appeal could be entertained assailing any Order passed by the Ld. Magistrate, with liberty to file a Memo of Appeal to challenge the above said impugned order passed on 01.08.2018.
That in between 14.09.2018 and 19.09.2018 the matter was communicated to the appellant (65 years old lady) over the phone and due to the problem of the tower from Howrah Court Complex she failed to properly understand the matter or re-communicate it to the dealing lawyer and could communicate it by person only on 18.09.2018. That the appellant Smt. Krishna Bose is aged widow and mother of Manase Bose (mentally sick person) could not cope with the situation and the Memo was ready for filing only on 19.09.2018, which was not filed on that very day as mentioned above and filed on 20.09.2018 with one-day limitation.
That, therefore, the original handwritten Section 5 Application would be read with this Additional Affidavit for which the leave has been begged and the Additional Affidavit would be taken to the Record and shortcoming, if any, in the original application would be pardoned along with the Condonation of Delay.
That the Memo of Appeal otherwisely picked up some serious legal issues which if resolved through adjudication would enormously help the development of law and have greater ramification under the ordinary practice of Domestic violence Law.
Therefore in the above circumstances, it is humbly prayed for the following relief/s.