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Himachal Pradesh High Court · body

2023 DIGILAW 243 (HP)

Parvesh Kumar v. State of H. P.

2023-05-01

AJAY MOHAN GOEL

body2023
JUDGMENT : By way of this petition, the petitioner has challenged order dated 19.02.2022, passed by the Court of learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., in terms whereof, an application filed under Section 5 of the Limitation Act by the State, for condonation of delay in filing the appeal stood allowed by learned Appellate Court. 2. Brief facts necessary for the adjudication of the present petition are that the petitioner herein faced a trial in FIR No.216/2012, dated 02.10.2012, registered at Police Station Dharamshala, District Kangra, H.P., under Sections 452, 354 and 323 of the Indian Penal Code. In terms of judgment dated 08.09.2016, passed by the Court of learned Judicial Magistrate, 1st Class, Dharamshala, District Kangra, H.P., the petitioner was acquitted of the offences alleged to have been committed by him. Against this judgment, an appeal was preferred by the State alongwith an application filed under Section 5 of the Limitation Act, praying for condonation of delay in filing the appeal. A copy of the application filed under Section 5 of the Limitation Act is appended with the present petition as Annexure P3. Copy of order dated 19.02.2022, passed by learned Trial Court is on record as Annexure P5. The grounds taken in the application filed under Section 5 of the Limitation Act, praying for condonation of delay in filing the appeal, inter alia, were that after receiving the copy of the judgment, an appeal was filed by the State in the High Court of Himachal Pradesh. Thereafter, on 27.03.2017, letter dated 23.03.2017, of Secretary (Home) to the government of Himachal Pradesh was received in the office of District Magistrate, Kangra at Dharamshala, H.P., in which it was stated that the case stood examined by the Law Department and the opinion was that as the offence punishable under Section 452 of the Indian Penal Code was cognizable and non bailable, therefore, the appeal was to be filed before learned Sessions Judge and for this reason the appeal could not be filed in time. In terms of contents of the application, delay in filing the appeal was caused due to “lengthy official procedure”, which was not deliberate. This application is stated to have been filed on 26.04.2017. In terms of contents of the application, delay in filing the appeal was caused due to “lengthy official procedure”, which was not deliberate. This application is stated to have been filed on 26.04.2017. Incidently, this application though was signed by learned District Attorney, Kangra at Dharamshala, the same was not supported by any affidavit of the competent authority, on whose instructions the application was being filed, i.e. the District Magistrate Kangra at Dharamshala. 3. Though the application was opposed by the accused, yet in terms of order dated 19.02.2022, the same was allowed by learned Appellate Court, i.e. the Court of learned Additional Sessions Judge-II, Kangra at Dharamshala. 4. In terms of this order, dated 19.02.20222, copy whereof is appended with the petition as Annexure P5, learned Appellate Court allowed the application by assigning the reasons that the application disclosed that delay occurred due to “misconception” and the file was moved for filing the appeal in the High Court and on perusal of record, the opinion by Deputy Secretary to the Government of Himachal Pradesh was found, wherein it was clarified to learned Magistrate that the appeal has to be filed before learned Sessions Judge and directions were issued to take necessary steps. Learned Appellate Court also observed that the Government Department takes time to reach conclusions in each matter since the files move from one table to another table with “tortoise pace”. Thereafter, learned Appellate Court observed that though there is no rule that the Government machinery has the immunity from Law of Limitation, but for the latches of the Government, public cannot be made to suffer. Learned Appellate Court further went to observe that the victim had filed the complaint on which FIR was registered and in the trial emanating therefrom the accused stood acquitted, but as the process of filing the appeal had resulted in the occurrence of delay, the fault could not be attributed to the victim. Learned Appellate Court further observed that no meritorious claim should be defeated on mere cause of delay especially in situation where delay was sufficiently explained and the case fell in the said category as the State had explained the delay and by assigning these reasons, the application was allowed. 5. I have heard learned counsel for the petitioner as also learned Additional Advocate General and have also gone through the impugned order. 6. 5. I have heard learned counsel for the petitioner as also learned Additional Advocate General and have also gone through the impugned order. 6. To say the least, the impugned order has been passed by learned Appellate Authority without any due application of mind, leave aside any due application of judicial mind. Despite the fact that nothing was produced by the State to demonstrate that any appeal indeed was filed at the first instance by the State in the High Court of Himachal Pradesh, yet the averments made in this regard in the application filed under Section 5 of the Limitation Act were taken to be a gospel truth by learned Appellate Court below without caring to decipher from the record as to whether any such appeal actually stood filed in the High Court or not, because fact of the matter is that no such appeal was ever filed by the State in this Court. Had any appeal been filed, then obviously the same would have been withdrawn by the State with liberty to file a fresh appeal before the Court of learned Sessions Judge concerned. Otherwise also, had that been case, then an appropriate application under Section 14 of the Limitation Act would have been filed by the appellant, seeking condonation of the period which was bonafidely spent by the party pursuing the remedy in some other Court. 7. Be that as it may, the manner in which the application stands decided by learned Court below, leaves much to be desired. Whereas, learned Court below had empathy for the cause of complainant at whose behest the FIR was registered, but it lose sight of the fact that with the expiry of period of limitation, a valuable right stood accrued upon the present petitioner, which could not have been taken away until and unless the party which was approaching the Court beyond the period of limitation had sufficiently explained the delay. Though, it stands mentioned in the impugned order by learned Appellate Court that a meritorious claim cannot be defeated on mere cause of delay when the situation was sufficiently explained, however, what to talk of sufficient explanation, there is no explanation worth its name in the application which was filed under Section 5 of the Limitation Act, explaining the delay in filing the appeal. In fact, least to say, a false averment was made in the application with regard to filing of an appeal in the High Court of Himachal Pradesh and learned Appellate Court fell in the said trap of the averments made in the application without caring to ascertain as to whether said averment was borne from the record or not. 8. Accordingly, in view of the above discussion, this petition is allowed and as impugned order, i.e. order dated 19.02.2022, passed by the Court of learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., in terms whereof, application filed under Section 5 of the Limitation Act by the respondent herein was allowed by learned Court below, is not sustainable in the eyes of law, the same is accordingly set aside. 9. The petition stands disposed of. Pending miscellaneous applications, if any, also stand disposed of.