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2007 DIGILAW 249 (GUJ)

STATE OF GUJARAT v. DINESH KESHAVLAL MAHETA

2007-04-13

R.S.GARG

body2007
R. S. GARG, J. ( 1 ) PRESENT is an application seeking condonation of delay of 115 days in filing the appeal. ( 2 ) IT is to be seen that the impugned judgment was delivered by the learned additional Sessions Judge, Fast Track Court, Dhrangadhra in Criminal Appeal no. 13 of 2003. The certified copy of the judgment was applied on 18th February, 2005 and was received on 19th February, 2005. It is not in dispute before me that the appeal against acquittal or an application seeking leave to file appeal against acquittal is required to be filed within ninety days including the days spent for obtaining the certified copy of the impugned judgment. It would appear that right from 19th February, 2005 to 26th April, 2005, the learned Public prosecutor, Surendranagar did not do anything. He was sitting over the matter and for the first time, sent his proposal on 26th April, 2005, which was received in the Legal Department on 28th April, 2005 and in the concerned Branch on 29th April, 2005. The file was prepared by the concerned officer on 30th April, 2005 and the Deputy Secretary took a decision to file an appeal on 2nd May, 2005 and the said approval was approved by the Secretary and R. L. A. on 3rd may, 2005. The Government resolution was prepared on 3rd May, 2005 and was forwarded to the office of the Public Prosecutor, High Court of Gujarat on 3rd May, 2005, the same was received in the office of the Public Prosecutor on 4th May, 2005 with the certified copy of the judgment impugned. The judgment was delivered on 3rd February, 2005. The certified copy, as observed, was applied on 18th February, 2005 and was received on 19th February, 2005. The two days spent for obtaining the certified copy if are added to the period of limitation of ninety days, an appeal could be filed within ninety-two days from the date of the judgment, which would mean that the appeal was required to be filed latest by 6th May, 2005. The Public Prosecutor received the papers on 4th May, 2005, but unfortunately, none in the office of the Public Prosecutor cared to look into the question of limitation. The Public Prosecutor received the papers on 4th May, 2005, but unfortunately, none in the office of the Public Prosecutor cared to look into the question of limitation. The affidavit only says that on receiving the file, after collecting necessary information and materials, the concerned Assistant Public Prosecutor drafted the Appeal Memo and filed the appeal on 29th August, 2005. Assuming the limitation commences from 4th May, 2005, that is, the date on which the office of the Public Prosecutor received the Government Resolution and the file, then too, the appeal had to be filed within ninety days expiring on 2nd August, 2005. If the office of the Public prosecutor is absolutely careless and negligent in discharge of its duties in not filing the appeal right in time, then, no Court can help the case and cause of the Public Prosecutor of the State Government. If the State Government appoints such Public Prosecutors, who are at all not interested in doing the government work, but are interested in earning some money by doing some errand/works, then, the State has to thank itself. How can one digest the lapses on the part of the Public Prosecutor s Office. It is common knowledge that the moment a lawyer receives certain papers for filing appeal or revision, he would count the limitation and would try to file the appeal, revision or any proceedings within the period of limitation. In the present case, the appeal, which could be filed latest by 6th April, 2005, was not filed within limitation, but was filed after delay of 115 days. The entire period is the lapse on the part of the Public Prosecutor. Why the Public Prosecutor does not develop a practise to count the limitation immediately after receiving the papers so that unnecessary delay is avoided. It appears that in the office of the Public Prosecutor, everybody is somebody, therefore, nobody cares for anybody. It is unfortunate that the office of the Public Prosecutor did not look into the period of limitation and has felt content that as and when they will file the appeal, the High Court would be obliged by the appeal and would also be duty-bound to condone the delay. Fortunately, the power to condone the delay is with the High Court and not with the Government s Counsel. Fortunately, the power to condone the delay is with the High Court and not with the Government s Counsel. ( 3 ) WHEN the cases of this nature are rejected on the question of limitation/ on the ground of delay, then, many times the person, who is required to be convicted or who could not secure any legal acquittal, is saved. Should this court believe or record a finding that causing of delay in the matter like this, is purposeful to make the appeal hopelessly barred by limitation so that the guilty is not brought before the Court, and the appeal is dismissed on the ground of delay only. In the office of the Public Prosecutor, there are number of advocates and other staffs. I had been repeatedly asking the learned Counsel for the State to write to the Government to provide additional and better hands, but it appears that everybody is happy with whatever they have because each of them believes that if there is any delay, the same is to be condoned very lightly. ( 4 ) IN the present case, an affidavit has been filed by one Shri B. A. Vaghela, Deputy Section Officer, Legal Department, Sachivalaya, Gandhinagar. The verification of the affidavit is absurd. It only says that "what is stated in Paras 1 to 8 are true information derived from the official record, which i believe to be true". The law relating to verification is clear, the law simply is that what you know personally should be verified on the basis of the personal knowledge; what you receive as information and believe it to be true, then, it should be so verified with a further submission that it is based on the instructions received orally or from the records. Even otherwise, the said Shri B. A. Vaghela would not know as to what happened in the office of the Public Prosecutor between 4th April, 2005 and 29th August, 2005. In a case like the present, when the wrong is with the office of the Public Prosecutor, then, the concerned public Prosecutor was required to file his personal affidavit. On the last date, the matter was adjourned for submission of the additional affidavit. In a case like the present, when the wrong is with the office of the Public Prosecutor, then, the concerned public Prosecutor was required to file his personal affidavit. On the last date, the matter was adjourned for submission of the additional affidavit. On 25th march, 2007, Shri Parakramsinh N. Jhala has filed his affidavit stating as under : "there are norms as well as the instructions of the Legal Department that whenever any appeal, revision or any appropriate remedy is to be taken against the judgment of the Hon ble Fast Track Court, I have to submit all the papers which are exhibited before the Hon ble trial Court as well as before the Hon ble Appellate Court along with the judgments of both the Courts, through the D. G. P. Office at Surendranagar. " I do not understand the meaning of the sentence of Shri Parakramsinh Jhala, whether he wanted to say that everything was to be submitted before him or he was to submit everything before the Court. If he wants to convey that everything is required to be submitted before the Court, then, the documents exhibited or the statements recorded by the trial Court have yet not been filed before this Court, and if he wants to say that everything was to be placed before him, then, at least he should have shown that when he required the concerned officer to obtain the documents and when they were produced before him. Shri jhala further submits that in spite of his repeated requests, the papers were not supplied to him and he had, after spending good money, collected the same from the trial Court, Dhrangadhra. ( 5 ) I will accept this submission of Shri Jhala that the papers were not supplied to him and he was required to obtain the papers at his own expenses, i will rely upon that statement, specially, because the State Government relies upon the said affidavit. ( 6 ) IN a case like the present, if the Government or its representative does not provide necessary assistance and requires the learned Counsel engaged by them to spend money, then, nothing worse can come. A party, whatever it is, has to help and assist the Counsel, impart proper instructions so that the appeal is filed in time. ( 6 ) IN a case like the present, if the Government or its representative does not provide necessary assistance and requires the learned Counsel engaged by them to spend money, then, nothing worse can come. A party, whatever it is, has to help and assist the Counsel, impart proper instructions so that the appeal is filed in time. From the affidavit of Shri Parakramsinh Jhala, it would appear that the State Government and its officers were absolutely negligent. ( 7 ) AN additional affidavit of Shri R. V. Soni, Section Officer, office of the Government Pleader, has been filed to explain the delay. The affidavit is beautifully vague and carries the things from bad to worse. According to him, the copies were received by the office of the Government Pleader. However, because of the burden of work and shortage of staff, no entries were made when those papers were received by the office, whether it was sent personally or through post with a covering letter or not. He is candid in submitting that he is not in a position to mention the exact date of receipt of those documents. However, he further submits that on receipt of the documents, the matter was allotted as per the instructions to some Additional Public Prosecutor for drafting. He even does not say that what documents were received and what documents were needed. In Paragraph 3, he could only submit that what were the particular holidays. If he wants to take advantage of the holidays, then, he must show that at least on the working day he was doing something. It appears that since after 4th May, 2005, every person in the office of the Public Prosecutor was enjoying the holidays either they were on furlough or they were not interested in doing the things. In Paragraph 4, his submission is that in 2005, the work increased because of the orders passed by the Hon ble Fast Track Court and staff and other facilities were not increased in ratio of the increased burden. I do not understand that how the State Government can take advantage of such statement. The State runs its own office. The State has to provide every facility to its office. The State has to provide money, papers and all other facilities. I do not understand that how the State Government can take advantage of such statement. The State runs its own office. The State has to provide every facility to its office. The State has to provide money, papers and all other facilities. The State has to provide peons, clerks, typists, stenographers and all such persons, who are required for taking dictation and typing of the appeal, so also filing of their appeals right in time. If a litigant does not equip the lawyer engaged by him, then, such litigant would not be allowed to take advantage of his wrong, saying that his lawyer was not properly equipped, therefore, the appeal could not be filed right in time. ( 8 ) UNFORTUNATELY, the State Government does not take appropriate steps to see that the appeals are filed right in time. There is no synchronisation between the Legal Department, local staff of the Public Prosecutor s office at the Sessions level and the office of the Public Prosecutor of the High Court. It appears that after writing and sending the letters or papers, everybody feels that he is discharging his burden, he comes along with the records, but does not turn his face and look to the things, he does not enquire from anybody as to what had happened to the proposals, which he sent to the office of the Public Prosecutor. The Public Prosecutor, after asking such officer-in-charge to provide certain instructions or papers, would forget that they have ever issued such instructions, they would not even issue a reminder nor would telephone such officer that limitation is running, and therefore, such documents be brought immediately. The Legal Department would not enquire from the officer-in-charge or the Public prosecutor, High Court of Gujarat, that an appeal in accordance with the proposal/their resolution has been filed or not. Everybody is a king, rather an emperor, in his own field and office. Nobody is answerable to anybody. Nobody is accountable to anybody. Nobody understands his responsibility and everybody would come and say before the Court that there is genuine cause, therefore, the delay be condoned. ( 9 ) TAKING into consideration, the totality of the circumstances and the hopeless stand taken by the State Government, I hold that the appellant has failed in making out sufficient cause for condonation of delay. Misc. Criminal Application no. ( 9 ) TAKING into consideration, the totality of the circumstances and the hopeless stand taken by the State Government, I hold that the appellant has failed in making out sufficient cause for condonation of delay. Misc. Criminal Application no. 8374 of 2006 deserves to, and is, accordingly rejected. Rule is discharged. Consequently, Criminal Appeal No. 1830 of 2005, which in fact is an application seeking leave to appeal, is also dismissed as barred by limitation. ( 10 ) LET a copy of this order be sent to the learned Advocate General, learned public Prosecutor and learned Secretary, Legal Department and Hon ble Law minister, Hon ble Chief Minister so that they may look into the things, may frame some rules, may impart instructions that certain registers are required to be maintained and unnecessary delay is avoided and the cause is brought before the Court right in time. Appeal dismissed.