By way of this application under section 5 of the Limitation Act, the applicant State has sought condonation of delay of 987 days caused in filing criminal appeal.
2. According to the applicant, the trial Court, by judgment dated 31.3.2008 acquitted the opponent accused for the offence under sections 2(1-a)
(a), (c) and (j), 7 and 16(1)A(a)(ii) of the Prevention of Food Adulteration Act. Certified copy of the said judgment was applied for on 10.4.2008 and the same was ready by 17.5.2008 and the applicant State obtained the same on 19.5.2008. Therefore, the appeal was required to be filed on 4.11.2008. However, the same came to be filed on 19.7.2011 and therefore, there is delay on 987 days in filing the criminal appeal. It was also stated in the application that the APP conducting the trial in the trial Court forwarded his proposal by his letter dated 18.6.2011 to the Legal Department, which was received by the department on 24.6.2011. Thereafter, file was prepared and submitted to the Joint Secretary on 27.6.2011, who took the decision to file an appeal on 28.6.2011 and sent the file to the Secretary and RLA for approval, who approved on the same day. Thereafter, GR was prepared on 11.7.2011 and forwarded to the Public Prosecutor of High Court on the same day, which was received by the office of the Public Prosecutor on 13.7.2011 and thereafter, the appeal was filed. It was further stated that there was no inaction or negligence on the part of the applicant and genuine delay has been caused in collecting necessary information and in following administrative procedures and therefore, there is reasonable and sufficient cause for condoning the delay in filing the appeal.
3. The opponent contested the application by filing affidavit stating that the applicant has not explained the huge delay of about 987 days. The applicant has not shown sufficient cause as the applicant was negligent in pursuing the remedy of appeal and the delay has been caused on account of inaction, want of bona fide and negligence. A legal right has accrued in favour of the opponents as except bare statement with regard to delay on account of administrative reasons, nothing is brought on record as to what were the reasons which prevented the applicant from filing the appeal. It is also stated that Criminal Appeal No.24 of 2008 was preferred before the Addl. Sessions Judge, Gondal challenging the impugned judgment and the Additional Sessions Judge, Gondal dismissed the appeal and these facts are not disclosed by the applicant in this application. Therefore, the application is required to be dismissed on the ground of supression of material facts. Therefore, the applicant has not shown sufficient ground to condone the delay and hence, the application is required to be dismissed.
4. I have heard learned APP Miss Shah for the applicant State and learned advocate Mr. Trivedi for the opponents at length and in great detail.
5. It appears from the averments made in the application that the judgment was pronounced on 31.3.2008 and certified copy of the impugned judgment was obtained on 19.5.2008. Thereafter, Public Prosecutor conducting the trial in the trial Court forwarded the proposal to file appeal against the impugned judgment on 18.6.2011. Therefore, almost after about three years of obtaining certified copy of the impugned judgment, a proposal was forwarded to the Legal Department to prefer an appeal. The applicant has in his application not explained reasons for not forwarding the proposal for such a long time. The applicant has in the application assigned reason of following administrative procedure in preferring the appeal. However, there is no explanation with regard to inordinate delay between obtaining certified copy of the judgment and forwarding the proposal to the Legal Department.
6. It also appears from the reply filed by the opponents that criminal appeal was preferred against the impugned judgment before the Additional Sessions Judge, Gondal in the year 2008 and it came to be dismissed. The applicant has not filed any rejoinder controverting the statement made in the reply. Therefore, it is clear that earlier appeal was preferred against the impugned judgment in the year 2008, but it came to be dismissed. These facts have not been disclosed in the application. Therefore, it is difficult to believe that Public Prosecutor in the trial Court forwarded the proposal on 18.6.2011 to the Legal Department to prefer appeal. These material facts have been suppressed in this application. Therefore, in my view, this application requires to be dismissed on the ground of suppression of material facts only.
7. As observed earlier, the applicant has not explained inordinate delay caused in filing the appeal. The cause pleaded by the applicant is not sufficient to grant equitable relief of condonation of delay. In the decision of Improvement Trust, Ludhiana Vs. Ujagar Singh and others reported in (2010) 6 SCC 786, the Hon'ble Supreme Court has ruled that unless mala fides are writ large on conduct of the party, as a normal rule delay should be condoned and attempt should be made to allow the matter to be contested on merits rather than throw it out on technicalities. In the present case, it appears from the averments made in the application that the fact of earlier appeal filed in the Sessions Court was suppressed and Public Prosecutor forwarded the proposal on 18.6.2011 for filing the appeal, which appears to be not correct, as before that, in the year 2008, an appeal was already preferred. Therefore, from the conduct, behaviour and attitude of the applicant, it can be said that the applicant was negligent and not bonafide in prosecuting the matter.
8. In the decision of Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation and another reported in (2010) 5 SCC 459, the Hon'ble Supreme Court has ruled that liberal approach is required to be adopted in condoning the delay of short duration, but stricter approach is required to be adopted in cases of inordinate delay and certain amount of latitude is not impermissible with regard to State. In the present case, as observed earlier, delay is inordinate. It also appears that incorrect statement was made in the application that the Legal Department received proposal by letter dated 18.6.2011 from Public Prosecutor, as before that, a criminal appeal was already filed in the Court of Additional Sessions Judge, Gondal being Criminal Appeal No.24 of 2008. There is suppression of fact of earlier appeal. It is true that certain amount of latitude is not impermissible with regard to State. However, in the facts of this case, the applicant State has not by sufficient reasons explained the inordinate delay. Therefore, liberal approach cannot be taken in this case.
9. In view of above, as the applicant has suppressed material fact and has failed to show sufficient cause for condoning inordinate delay in filing the criminal appeal, this application cannot be entertained.
10. In the result, the application fails and stands dismissed.
11. Consequently, Criminal Misc. Application No.10295 of 2011 also stands dismissed.
(BANKIM N.MEHTA, J.) shekhar* Top