Heard the Learned Counsel for the Petitioner/Appellant and Mr.K.Mathan, Learned Government Advocate (Crl.Side) for the Respondent.
2.The Petitioner/Appellant/Sole Accused has focused the instant Criminal Miscellaneous Petition before this Court praying for passing of an order to condone the delay of 866 days in filing the Criminal Appeal in Sr.No.13659 of 2017.
3.It comes to be known that the Petitioner/Appellant (as an aggrieved person) has preferred the instant Criminal Appeal as against the Judgment and Conviction passed by the Learned Sessions Judge, (Fast Track Mahila Court), Tiruppur in S.C.No.37 of 2013 dated 09.09.2014, whereby and whereunder, he was convicted in respect of an offence under
Section 376(1) I.P.C. and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act and was sentenced to undergo 10 years Rigorous Imprisonment and was directed to pay a fine of Rs.20,000/-, in default of payment of fine, he was directed to undergo one year Rigorous Imprisonment as default sentence. Further, he was directed to undergo a Rigorous Imprisonment for three years in respect of an offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act and further, he was directed to pay a fine of Rs.10,000/-, in default of payment of fine, he was directed to undergo three months Rigorous Imprisonment.
4.According to the Learned Counsel for the Petitioner/ Appellant, owing to poverty, the Petitioner/Appellant could not engage an Advocate at the earliest point of time and further, the copy of Judgment of the trial Court in S.C.No.37 of 2013 dated 09.09.2014 was misplaced by him and in that process, there has occasioned a delay of 866 days in preferring the instant Criminal Appeal. As such, the delay is neither willful nor wanton, but due to the aforesaid reasons.
5.In response, the Learned Government Advocate (Crl. Side) for the Respondent/Complainant submits that the Petitioner/ Appellant has not assigned proper and good reasons for the delay of 866 days (more than 2 = years) in projecting the present Criminal Appeal before this Court.
6.In short, it is the stand of the Respondent that the reasons assigned by the Petitioner that owing to poverty, he could not engage an Advocate at earliest point of time and further, the trial Court Judgment was misplaced by him, are all invented for the purpose of the present case. Moreover, there is no bona fide in this regard. Therefore, the delay, which is of 866 days not properly explained, need not be condoned by this Court in the interest of Justice.
7.Admittedly, the Judgment of the trial Court in S.C.No.37 of 2013 was delivered on 09.09.2014 and it appears that the Petitioner /Appellant has not exercised the option of approaching the Legal Aid being provided to the needy person at Taluk, Districts and State Level. Even in regard to the reason viz., misplacement of certified copy of Judgment, it is the stand of the Respondent that the Petitioner/Appellant could have filed an Appeal seeking to dispense with the production of the certified copy of the Judgment, as he had filed Crl.M.P.No.4564 of 2017 in Crl.A.Sr.No.13659 of 2017, which was ordered on 28.03.2017 by this Court.
8.It is to be noted that when a 'Court of Law' ordinarily, deals with a 'Petition for Condonation of Delay' is to adopt a practical, purposeful, liberal, pragmatic and a rational approach with a view to deliver substantial Justice to the parties concerned. If the 'Condonation of Delay Petition' is allowed at the earliest stage, the Petitioner will have an opportunity to take part in the main arena of proceedings. However, if the 'Condonation of Delay Petition' is dismissed at the nascent stage itself, there is a possibility that even a meritorious case being thrown out at the threshold. Generally, no litigant would file an Appeal proceeding with a deliberate delay. In fact, he or she runs a serious risk in doing so.
9.At this stage, this Court aptly recalls and recollects the decision of the Hon'ble Supreme Court in H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and another, (2015) 1 Supreme Court Cases 680 at Special page 681, wherein in paragraph Nos.19 & 24, it is observed as follows:
19.It is true that the delay in filing the appeals was only 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refiling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is condoned. Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be found with anyone much less with the party concerned or whomsoever was entrusted with the filing of the papers into the Registry. But when an enormous delay of nearly five years occurred in the matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the party concerned from refiling the papers in time to enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals.
24.The failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the respondents from not paying the court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bona-fides in its approach.
10.Also, in the aforesaid decision, at page 682, in paragraph 25, it is held as follows:
25.Thus, there is total lack of bona fides in its approach and the impugned order of the High Court in having condoned the delay in filing as well as refiling, of 9 days and 1727 days respectively, in a casual manner without giving any reason, much less acceptable reasons, cannot therefore be sustained.
11.As far as the present case is concerned, even though the Petitioner/Appellant has assigned reasons like, he could not engage an Advocate at earliest point of time and further, the copy of the Judgment of the trial Court was misplaced by him etc., this Court is of the considered view that these are not proper, adequate and justifiable reasons so as to enable this Court to lend its helping hand by exercising its Judicial generosity. Suffice it for this Court to make a significant mention that the reasons assigned by the Petitioner at para 3 of the Affidavit in Crl.M.P.No.4771 of 2017 as stated supra, do suffer from lack of bona fides and devoid of merits. Viewed in that perspective, the Criminal Miscellaneous Petition fails.
12.In the result, the Crl.M.P.No.4771 of 2017 is dismissed.