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2004 DIGILAW 77 (GUJ)

BHARATBHAI DAHYABHAI VAGHARI v. STATE OF GUJARAT

2004-02-12

C.K.BUCH

body2004
C. K. BUCH, J. ( 1 ) RULE. Service of Rule is waived by ld. APP Mr. Pandya for the respondent State. By consent of the parties, this matter is taken up for final hearing today. ( 2 ) THE applicant has preferred this application for condonation of delay caused in preferring criminal appeal against the impugned order of conviction and sentence. The applicant accused is undergoing imprisonment imposed by the ld. Addl. Sessions Judge, Ahmedabad (Rural), Gandhinagar in Sessions Case No. 41/99 vide judgment and order dated 2. 6. 2001. It is submitted by the applicant accused that he is in jail and not aware about his right to file an appeal against the order of conviction and sentence and so he could not prefer an appeal in time. The 2nd ground placed before the Court for praying for condonation of delay is that when he was appraised about his right to file an appeal, he started making arrangements for expenses and he being poor, could not arrange for the amount required for the purpose as he is hailing from a very poor family. Therefore also, the delay caused in preferring appeal should be condoned. So, it can be said that the applicant accused has prayed his physical disablement as he was in jail, intellectual disablement as he was not aware about his right and financial disablement as he was not able to raise funds for the expenses. ( 3 ) THE delay caused in preferring appeal is of 840 days. This period requires to be explained to the satisfaction of the Court and I am of the view that the applicant accused has failed in explaining this period of delay by showing sufficient cause within the meaning of Sec. 5 of the Limitation Act. The jail record produced by ld. APP Mr. Pandya in response to the query raised by the Court reveals that the applicant accused is undergoing imprisonment for a period of 7 years and he was granted parole from 28. 8. 2001 to 14. 9. 2001 i. e. 22 days on the ground and purpose that he can arrange for filing of an appeal in the High Court against the order of conviction. The other ground pleaded by the applicant accused was that he was sick. This alleged sickness is neither pleaded or shown as one of the causes for delay caused. 9. 2001 i. e. 22 days on the ground and purpose that he can arrange for filing of an appeal in the High Court against the order of conviction. The other ground pleaded by the applicant accused was that he was sick. This alleged sickness is neither pleaded or shown as one of the causes for delay caused. So, it would be incorrect to say that he was not aware about his right to file an appeal against the order of conviction till 23. 1. 2004- the day on which he was granted parole on the second occasion. The say is not found acceptable that though the applicant was undergoing imprisonment along with many other such convict persons, nobody had informed or appraised him about his right to appeal. The endorsement in the jail record submitted to the Court falsifies alleged innocence or ignorance of law pleaded in the present application. On the contrary, I am inclined to comment that this application has been preferred on false and created ground. It seems that the accused had accepted the sentence and had decided not to prefer an appeal and that too after some consultation in the year 2001 itself and the present memo of appeal with application for condonation of delay is submitted in the month of November-2003, is an afterthought. ( 4 ) MS. Sadhna Sagar, ld. counsel appearing for the applicant placed reliance in two decisions in support of her say and has submitted that approach of the Court in such cases should be liberal and pragmatic. The first decision is in the case of The Collector, Land Acquisition, Anantnag and another v/s Mst. Katiji and others, AIR 1987 SC 1353 . The Apex Court was dealing with a prayer of condonation of delay advanced by the Collector in land acquisition proceedings against the person who had allegedly granted higher amount of compensation against the land acquired. The High Court had rejected the appeal preferred by the State/ Collector and while dealing with the appeal preferred by the Collector, Land Acquisition, Anantnag, observed that the Court should adopt liberal approach while condoning the delay and similar treatment should be given to the government and his officials and to other litigants. On facts and considering the other contingencies emerging from the cited decision, the ratio enunciated in the above cited decision is not found helpful to the present applicant. On facts and considering the other contingencies emerging from the cited decision, the ratio enunciated in the above cited decision is not found helpful to the present applicant. The second decision relied upon by ld. counsel Ms. Sagar for the applicant is in the case of State of Gujarat v/s Babubhai Madhubhai Makwana and Anr. , 1997 (3) GLR 2224 , also would not help the applicant accused. In the cited decision, High Court was dealing with an application praying condonation of delay caused in preferring acquittal appeal. The Court has said that normally, the delay should be condoned. The ratio of the above-cited decision clearly says that a party can not be put in more vulnerable situation. The present applicant by his conduct put himself in vulnerable position by agitating false grounds for praying condonation of delay even though he has accepted the judgment and order of conviction and sentence since the year 2001. ( 5 ) THE Court is conscious about the well-accepted proposition of law that condonation of delay if requested must be construed liberally for advancing substantial justice. But in a case of inordinate delay, the Court is supposed to evaluate the conduct of a party who approaches Court after such inordinate delay. EVen in case of illness on the part of the applicant, on facts, it should be shown that the applicant was anxious to prefer an appeal and at that stage all attempts to minimise the delay have been made. The Apex Court in the case of vedbai @ Vaijayantabai Baburao Patil v/s Shantaram Baburao Patil and Others, AIR 2001 SC 2582 , has observed in para-5 as under:-". . . . A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to he other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case dserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exeercise the discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause", the principle of advancing substantial justice is of prime importance. No hard and fast rule can be laid down in this regard. The Court has to exeercise the discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause", the principle of advancing substantial justice is of prime importance. " ( 6 ) THE Court is aware that the principle of "waiver" and/or "acquience" has no room to play in the field of criminal jurisprudence, but in a case where conduct of a party praying for condonation of inordinate delay is running contrary to ones bonafide, then conservative approach should be taken otherwise a party who has accepted the order of either conviction or acquittal may be tempated to enter into appellate or revisional proceedings even after several years or months. The convict at one stage accepts the conviction and sentence and starts killing the period of sentence imposed by the trial Court, under the umbrella of sympathy, such party can not be encouraged to initiate appellate and/or revisional proceedings at any time after the order of conviction without placing sufficient cause on record as required under Sec. 5 of the Limitation Act. In the instant case, the applicant accused is supposed to exhibit the steps taken by him to minimise the delay rather than exhibiting falsity of his case or malafide. ( 7 ) IT is true that day to day delay is not required to explain, but total period of delay caused should be explained reasonably and in convincing manner and that too by stating sufficient cause within the meaning of sec. 5 of the Limitation Act. This Court is not satisfied with the cause pleaded by the applicant. ( 8 ) IN view above, there is no substance in this Cri. Misc. Application. Hence, application for condonation of delay is hereby dismissed. Rule discharged. .