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2017 DIGILAW 1083 (JK)

Prem Nath v. State Of J & K

2017-12-22

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : Dhiraj Singh Thakur, J. This Criminal Revision has been preferred against the order dated 15.5.2017, passed by the court of learned Principal Sessions Judge, Kathua, whereby the court below has condoned the delay in filing the Criminal acquittal appeal filed by State. 2. Briefly stated, the material facts are as under: 3. By virtue of judgment and order dated 30.12.2015, the learned Sub Judge Special Mobile Magistrate, Kathua, acquitted the petitioners herein for offences under Sections 323, 147, 148, 447, 382, 325, 201 RPC, in case file No. 83/26. 4. An Acquittal appeal came to be filed against the aforementioned order on 27.1.2017, along with an application seeking condonation of delay. Whereas the period of limitation in filing the acquittal appeal is three months, the appeal, if any, had to be filed on or before 30.3.2016. There was, thus, a delay of 302 days. 5. The learned Principal Sessions Judge, Kathua, by virtue of order impugned dated 15.5.2017, condoned the delay in filing the acquittal appeal subject to payment of Rs. 1000/- as cost primarily on the ground that sufficient cause had been shown to invoke the discretionary powers under Section 5 of the Limitation Act. Reliance was also placed upon the judgments in the case of New India Insurance Co. Ltd. vs. Shanti Misra (1975) 2 SCC 840 , Brij Indar Singh vs. Kanshi Ram ILR (1918) 45 Cal 94, Shakuntala Devi Jain vs. Kuntal Kumari, AIR 1969 SC 575 and O.P. Kathpalia vs. Lakhmir Singh, (1984) 4 SCC 66 , on the point that where refusal to condone the delay results in grave miscarriage of justice, it would constitute a ground to condone the delay. 6. Counsel for the petitioners urged that the view taken by the court below was perverse and the reliance placed upon various judgments on the basis of which the delay was condoned, was also inapt, hence the present petition. 7. With a view to understand as to whether in the application seeking condonation of delay filed by the respondent-State, sufficient cause had been projected or not, it becomes necessary to reproduce the contents of the said application, which are as under:- “1. That the accompanying appeal has been filed by the appellant/applicant herein against the judgment passed by Ld. 7. With a view to understand as to whether in the application seeking condonation of delay filed by the respondent-State, sufficient cause had been projected or not, it becomes necessary to reproduce the contents of the said application, which are as under:- “1. That the accompanying appeal has been filed by the appellant/applicant herein against the judgment passed by Ld. Sub Judge Special Mobile Magistrate Kathua in case FIR No. 250/2011 P/S Kathua titled S/V Prem Nath and others whereby the Hon'ble Court was pleased to acquit the respondents herein of the charges/offence under section 323/147/148/427/325 Ranbir Penal code of P/S Kathua. 2. That after the judgment was announced, an application for issuance of certified copy of the judgment was applied and sought the certified copy. 3. That thereafter the matter was taken up with the Law Department for the grant of sanction for filing acquittal appeal in the competent court of law and it is submitted that the matter was considered in the Law Department at various levels and the sanction was accorded for filing appeal vide Government Order No. 3566-LD(ACQ) of 2016, dated 22.12.2016. 4. That the delay in filing the appeal is not intentional or deliberate. 8. On a perusal of the aforementioned application filed by the respondent-State, it becomes clear that the material averments were conspicuously missing in the application. The said application did not mention the date on which the certified copy of the judgment had been applied for and obtained by the State. It also did not mention the date when the matter had been referred to the Law Department for grant of sanction or the date when the sanction was actually granted and communicated to the office of the Advocate General for filing the appeal. All that was stated in the application was that the delay was caused on account of the fact that the matter was considered in the Law Department at various levels. 9. On a plain reading of the application, therefore, it is clear that the ground on which the delay was sought to be condoned was not properly explained. 10. All that was stated in the application was that the delay was caused on account of the fact that the matter was considered in the Law Department at various levels. 9. On a plain reading of the application, therefore, it is clear that the ground on which the delay was sought to be condoned was not properly explained. 10. While it is true that a discretion is vested in the court to condone the delay in terms of Section 5 of the Limitation Act but only because the litigant is the State does not mean that the discretion has to be exercised m favour of the State in absence of any sufficient cause projected by it. In 2013 (2) Civil Court Cases 296, Amalendu Kumar Bera and Ors. vs. State of West Bengal, the Apex Court held as under:- “10............Merely because the respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in absence of 'sufficient cause' delay shall not be condoned.” 11. Similar view had earlier been taken by the Apex Court in the case reported as 2012 (2) Civil Court Cases 1, Office of the Chief Post Master General and Ors. vs. Living Media India Ltd. and Anr. 12. Having considered the entire matter, I am of the opinion that the application seeking condonation of delay filed by the State lacked material particulars and did not, at all, give any acceptable and cogent reasons, which could be sufficient to condone the delay of approximately 302 days in preferring the acquittal appeal. 13. For the reasons stated above, this criminal revision is allowed and the order impugned dated 15.5.2017, passed by the learned Principal Sessions Judge, Kathua, is set aside. 14. Disposed of accordingly along with the connected MP.