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2018 DIGILAW 2528 (BOM)

NANDU v. STATE OF MAHARASHTRA

2018-10-17

T.V.NALAWADE, VIBHA KANKANWADI

body2018
JUDGMENT : T.V. NALAWADE, J. 1. The application is filed for condonation of delay of 11611 days caused in filing criminal appeal against the judgment and order of Sessions Case No.48 of 1986, which was pending before the learned Sessions Judge, Nanded. The Sessions Judge has convicted the present Applicant for the offence punishable under Section 302 of the Indian Penal Code and he is sentenced to suffer imprisonment for life. On the day of decision i.e. on 14th July, 1986, he was taken in custody and he was sent to jail for undergoing sentence. It is the contention of the present Applicant that there was nobody to take care of him and he was not aware of statutory right to file appeal and so he did not file appeal in time. It is his contention that when he learnt about the right, he sent letter to this Court and then as per the Court's direction, the proceeding is filed. 2. The State has filed reply and the application is strongly opposed. It is the contention of the State that when the Applicant was undergoing aforesaid sentence, he was granted death parole leave vide order dated 18th November, 1989 for 15 days. It is contended that he was expected to surrender on 4th December, 1989, but he did not surrender and then he was absconding. It is contended that he came to be arrested on 10th July, 2015 and from that day, he is kept in jail for undergoing the sentence. It is contended that separate action was taken against him as he was absconding and Crime No.1483 of 2004 was also registered in respect of that incident. It is contended that the delay of around 31 years is caused in filing the proceeding and no proper or acceptable explanation is given by the Applicant and so, the application cannot be allowed. 3. Both the sides are heard by this Court. 4. This Court has gone through the reasoning given by the Trial Court also for convicting the Applicant and also to find out as to whether there are other circumstances against the Applicant. 3. Both the sides are heard by this Court. 4. This Court has gone through the reasoning given by the Trial Court also for convicting the Applicant and also to find out as to whether there are other circumstances against the Applicant. From the facts mentioned in the decision, it can be said that when the incident took place on 15th September, 1985 on the say day, on the basis of dying declaration of the deceased crime was registered, the Applicant could not be arrested till 9th May, 1986. Only when he was declared as absconding and order of attachment was made of his property, he became available and he was arrested. 5. The power given to the Court to condone the delay by Section 5 of the Limitation Act, is discretionary power. There is no separate, inherent power with the Court in such case and so, the discretionary power needs to be exercised as per the provisions of the Limitation Act. Thus, for condoning the delay or for refusing to condone the delay, considerations like diligent of the Applicant and his bonafides need to be considered and on that basis, the Court can ascertain as to whether there was sufficient cause to the Applicant for not filing the proceeding in time prescribed by law. The provision of Section 5 of the Limitation Act shows that the burden is on the Applicant to make out sufficient cause to the satisfaction of the Court. 6. It is true that there is no presumption that the delay is caused deliberately, but if the circumstances show that the Court can draw inference against the Applicant that the delay was caused deliberately, on the basis culpable negligence or malafides, then the Court is expected to draw such inference. The circumstance whether the Applicant is really benefited due to filing the proceeding late is relevant circumstance in such a case. 7. The burden to show that there was sufficient case is on the Applicant and he should come to the Court with "bonafide" reasons. If he has not given such reasons, the Court can hold that he is not entitled to be shown indulgence. The case of the Applicant is already mentioned and it does not show that any such reasons are there. If the party lacks bonafides, it must suffer for inaction. If he has not given such reasons, the Court can hold that he is not entitled to be shown indulgence. The case of the Applicant is already mentioned and it does not show that any such reasons are there. If the party lacks bonafides, it must suffer for inaction. The ground given in the application that he did not know that he has statutory right to file appeal, cannot be accepted as ignorance of law cannot be considered by the Court. In the present matter, on the contrary, there are circumstances as mentioned above against the Accused showing that he was not ready to face the trial and after the incident he was absconding for few months. When he was granted parole, he again absconded and for about 30 years he was not available. In such cases, the Court cannot take liberal view. If liberal view is taken in such case, it will be against the public policy on which law of limitation is founded. In such a case, liberal view will defeat the very purpose of limitation. 8. The procedure prepared by this Court for preservation of record of subordinate Courts, which can be seen in Criminal Manual shows that time limit is fixed for which record of evidence needs to be preserved. As per the provisions of Criminal Manual, the record of evidence of sessions case needs to be preserved only for five years. If the appeal is preferred then, the record is preserved for further period, till the final decision of the matter. In the present matter, due to aforesaid circumstances, the record is destroyed. For this reason also, the Court is expected to approach the matter cautiously. Inordinate delay in such case plays important role and due to that the Court is not expected to use the discretionary power. 9. Though there are aforesaid circumstances showing that no case of sufficient cause is made out by the Applicant, this Court has gone through the judgment, only record available to ascertain whether any serious question of law is involved in the matter and whether there is some arguable case to the Applicant. 10. The reasoning given by the Trial Court contains the evidence, which is of following nature: (a) Disclosure made by the deceased on the spot of offence after sustaining injuries caused by Applicant that the Applicant had inflicted those injuries. 10. The reasoning given by the Trial Court contains the evidence, which is of following nature: (a) Disclosure made by the deceased on the spot of offence after sustaining injuries caused by Applicant that the Applicant had inflicted those injuries. The person to whom the disclosure was made, shifted the injured, deceased to the hospital and he has given evidence on the first disclosure made by the deceased; (b) In Government hospital, statement of the injured was recorded by the police and on that basis, crime came to be registered. That record is proved; (c) In the hospital through the Special Judicial Magistrate, the dying declaration was recorded and that record is also duly proved. There is medical evidence to show that the declarant was fit to make the statement; (d) The evidence is given on motive by examining the witnesses on the transaction between the family of Applicant and the family of deceased; (e) The Applicant was absconding for few months after the incident and he became available only when orders were made to attach his property; and (f) The medical evidence shows that three blows were given on the abdomen of deceased by using dangerous weapon and those blows had caused perforation to internal organs. Thus, there is material to infer intention of murder. 11. In view of the aforesaid circumstances, this Court holds that the application filed for condonation of delay cannot be allowed. In the result, the application stands rejected.