STATE OF GUJARAT v. KANTIBHAI DEVABHAI VANKAR — 1994 DIGILAW 200 (GUJ)

SHETHNA, J. ( 1 ) HEARD Mr. Bukhari, learned Addl. P. P. for the applicant-State and Mr. A. J. Patel, learned Advocate for the respondents-accused. ( 2 ) BY way of this application, the State of Gujarat wants this Court to condone the delay of 82 days in filing appeal against the judgment and order of acquittal dated 25th August, 1989 passed by the learned Judicial Magistrate, First Class, balasinor in Criminal Case No. 461 of 1987 whereby the learned Magistrate acquitted all the four accused-respondents of the offences punishable under Secs. 323, 324, 337 and 504 read with Sec. 114 of the IPC for which they were charged and tried. ( 3 ) MR. Patel, learned Counsel, appearing for the respondents, vehemently objected to the grant of this application. He submitted that the State Government has abandoned its right of preferring an appeal, within a period of limitation which was 90 days, against the impugned order of acquittal passed by the learned magistrate. He submitted that it clearly appears from the averments made in para 3 of the application itself that after expiry of the period of limitation, for the first time it was thought and decided to prefer an appeal and accordingly the appeal came to be filed after 82 days after the expiry of period of limitation. He, therefore, submitted that the delay should not be condoned and this application should be dismissed. In support of his submission, Mr. Patel relied upon the judgment of the Supreme Court in Ajit Singh Thakur Singh v. State of Gujarat, air 1981 SC 733 : [1981 GLR 268 (SC)] and heavily relied upon the observations made by the Supreme Court in para 6 which are as under :"6. . . . . . . . . . . . . Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. . . . . . . . " ( 4 ) THERE cannot be any quarrel about the proposition laid down by the Supreme court. In fact, the judgment of the Supreme Court in Ajit Singhs case (supra) is binding to this Court. However, the facts of that case are required to be stated in order to appreciate the submission made by Mr. Patel in its proper perspective. In that case, initially the State Government already took a decision not to file an appeal and it allowed the period of limitation to lapse. Subsequently, on certain observations made by the High Court, while considering a revision petition filed by the private complainant that it was a fit case where the State Government should file an appeal, and on notice being issued by the High Court to the State Government in the matter, the appeal came to be filed. Now, in the case on hand, the facts are glaring and entirely different. Though it was the duty of the learned Public Prosecutor, who conducted the case before the learned Magistrate, to recommend to the State government for filing an appeal in time against the order of acquittal, he failed in his duty. In fact, he retired as Public Prosecutor on 31st December 1989 and his successor in office Mr. A. J. Patel on taking over as District Government Pleader and Public Prosecutor on 19-2-1990 at the earliest point of time, submitted the proposal to the State Government for filing an acquittal appeal and the appeal came to be filed at the earliest point of time. The day on which the proposal was made, obviously, the period of limitation of 90 days in preferring the appeal had already expired. The day on which the proposal was made, obviously, the period of limitation of 90 days in preferring the appeal had already expired. However, the Supreme Court in Ajit Singhs case (supra) has made it very clear that some event or circumstance arising before limitation expired, if it was not possible to file an appeal within time and if the same are satisfactorily explained, then there will not be any difficulty in condoning the delay. The facts of the present case are totally different from the case of Ajit Singh. In Ajit Singhs case, the State government had already considered the case before the period of limitation expired and took a decision not to file an appeal. However, because of some observations made by the High Court on a revision petition filed by the complainant, subsequently, the State Government decided to file an appeal and filed the same, which was timebarred. That is not the case here. As stated earlier, the Public Prosecutor, who ought to have forwarded the proposal, did not forward the proposal till he retired on 31st december, 1989 and on 19-2-1990 his successor in office Shri A. J. Patel took over charge and submitted the proposal immediately at the earliest point of time on the next day, i. e. , on 20-2-1990. Therefore, I do not see any reason not to condone the delay, though it is a delay of 82 days. ( 5 ) BEFORE parting with the judgment, I may state that it is very hazardous not to condone the delay in cases where the proposals are not made by the Public prosecutor within the period of limitation in filing the appeal, because, if any public Prosecutor is approached or for any other reasons the Public Prosecutor is not allowed to make the proposal to the State Government for preferring appeal against the order of acquittal within the period of limitation then the State government would never be in a position to get the delay condoned in filing appeal late which would not be in the interest of justice. At this stage, it will not be improper to refer to the judgment of the Supreme Court in Collector, Land acquisition, Anantnag v. Katiji, AIR 1987 SC 1353 , which is relied upon by Mr. Bukhari, learned Addl. At this stage, it will not be improper to refer to the judgment of the Supreme Court in Collector, Land acquisition, Anantnag v. Katiji, AIR 1987 SC 1353 , which is relied upon by Mr. Bukhari, learned Addl. P. P. In that case, the Supreme Court has held that the court should adopt liberal approach and has further observed that :"the doctirne of equality before law demands that all litigants including the State as litigant, are accorded the same treatment and the law is administered in an evenhanded manner. There is no warrant for according a step-motherly treatment when the state is the applicant praying for condonation of delay. In fact on account of an impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing on the buck ethos, delay on part of the State is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community does not deserve a litigant non grata status. So also the approach of the Courts must be to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. " ( 6 ) IN view of the above discussion, this application is allowed. Delay is condoned. Rule is made absolute accordingly. ( 7 ) AT the request of Mr. Bukhari, learned Addl. P. P. , the office is directed to place the main Criminal Appeal No. 134 of 1990 for admission on 22-8-1994. .