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2006 DIGILAW 652 (RAJ)

Ashok v. State of Rajasthan

2006-02-24

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-Issue notice for final disposal. Mr. J.P.S. Chaudhary, Public Prosecutor is directed to accept the notice for the respondent-State and he accepts the notice. With the consent of the learned Counsel for the parties, the Revision Petition is finally heard and decided at the admission stage. 2. By the instant criminal Revision Petition under Section 397/401 CrPC, the petitioner has challenged the order dated 16.02.2006 passed by the Additional Sessions Judge, Rajgarh, district Churu (for short, "the Appellate Court" hereinafter), whereby the application filed by the petitioner under Section 5 of the Limitation Act seeking condonation of delay in filing the criminal jail appeal, as also the appeal, have been dismissed. Aggrieved by the order impugned, the petitioner has filed the instant revision. 3. I have heard learned Counsel for the parties and perused the order impugned. 4. The petitioner was convicted vide Judgment and order dated 112.2000 passed by the Additional Chief Judicial Magistrate, Rajgarh, district Churu (for short, "the trial Court" hereinafter) in Criminal Case No. 500/1999 for the offence under Section 379, IPC and sentenced to undergo two years simple imprisonment and a fine of Rs. 500/-, in default of payment of fine further to undergo three months simple imprisonment. The Judgment and order of conviction and sentence came to be challenged by the petitioner before the Appellate Court though it was barred by the period of limitation. An application under Section 5 of the Limitation Act was accompanied with the appeal seeking condonation of delay. That application came to be dismissed by the appellate Court and the appeal also came to be dismissed as being barred by the period of limitation. 5. In Apangshu Mohan Lodh & Ors. vs. State of Tripura & Ors., AIR 2004 SC 267 , the Honble Supreme Court held that power to condone delay is discretionary and has to be liberally construed and if sufficient cause is shown for condonation of delay, the delay should be condoned. 6. In Bhagmal vs. M.P. Co-operative Marketing & Consumer Federation Ltd. & Ors., 2003 (11) SCC 727 , an award was passed against the appellant by the Registrar, Co-operative Societies. The appellant preferred a statutory appeal challenging the said award after a delay of about 6 years. The Appellate Authority after being satisfied with the facts stated in the petition condoned the delay and admitted the appeal. The appellant preferred a statutory appeal challenging the said award after a delay of about 6 years. The Appellate Authority after being satisfied with the facts stated in the petition condoned the delay and admitted the appeal. The first respondent challenged the said order before the High Court by filing a writ petition whereby the said order was quashed, against which an appeal was filed before the Honble Supreme Court. Allowing the appeal the Honble Supreme Court held, that there is no doubt that the delay in filling the appeal was apparently very long. But, when the Appellate Authority in exercise of its jurisdiction was satisfied with the facts and reasons stated in the petition for condoning the delay, it was not proper for the High Court to exercise its extraordinary jurisdiction under Articles 226 or 227 of the Constitution and set aside the order of the Appellate Authority, which only enabled the appellant to have the statutory remedy of appeal pursued further. 7. In G. Ramegowda, Major etc. vs. The Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897 , an appeal was filed by the Land Acquisition Officer against the award at the belated stage on account of inaction on the part of Government Counsel. High Court condoned the delay. The Honble Supreme Court held as under ;- "There is, it is true, no general principle saving the party from all mistakes of its Counsel, If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its Counsel, there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression sufficient cause in Section 5 must receive a liberate construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay." 8. In the instant case, the petitioner has been non-suited on the technical ground. There appears no gross negligence or deliberate inaction or lack of bona fides which is imputable to the petitioner. In the instant case, the petitioner has been non-suited on the technical ground. There appears no gross negligence or deliberate inaction or lack of bona fides which is imputable to the petitioner. In view of the law laid down by the Honble Supreme Court referred here-in-above, in my view, the impugned order cannot be sustained. While considering the delay in filing the appeal, the sufficient cause which prevented the petitioner to file the appeal in time, has to be liberally considered. In the circumstances, therefore, the revision petition deserves to be allowed. 9. Consequently, the Revision Petition is allowed. The impugned order dated 16.02.2006 passed by the Appellate Court is hereby set aside. Delay in filing the appeal is condoned and the appeal is restored to its original number. The matter is remanded to the Appellate Court to decide the appeal on its merit after hearing both the parties.