The applicant - State has moved this application for condonation of its delay in preferring its appeal against the judgment and order of acquittal passed by the learned Chief Metropolitan Magistrate on 2nd/3rd March 1994 in Criminal Case No.1663 of 1990.
2.The delay is of nearly 225 days. The delay is attributed to the fact that the learned Assistant Public Prosecutor, named, Shri R.R.Brahmbhatt, was on the verge of retirement at the relevant time and he actually retired on 31st March 1995 and he might have possibly forgotten to apply for a certified copy of the judgment and order in question and might have forgotten to give his opinion with respect to whether or not any appeal was required to be filed. It has been stated in this application that the Legal Department of the State Government came to know of the judgment and order of acquittal in question through some other source and thereupon directed the new Assistant Public Prosecutor, named, Shri Laxmansingh Gohel, to give his opinion and send his proposal for filing an appeal. Thereupon, an application for a certified copy of the judgment and order in question was made on 23rd December 1994 and it was received on 29th December 1994. It was received by the Legal Department of the State Government in the first week of January 1995 and the papers were forwarded to the office of the Government Pleader of this court with the forwarding letter on 11th January 1995. An affidavit in support of this application has been filed by said Assistant Public Prosecutor Shri Laxmansingh Gohel. On behalf of the opponents herein, opponent No.2 has filed his affidavit-in-reply and has resisted this application on various grounds. It has been stated that the grounds given for condonation of delay are not tenable in law.
3.It is true that the affidavit of the earlier Assistant Public Prosecutor, named, Shri R.R.Brahmbhatt, has not been filed in this case. It is possible that he might not have been available for filing such affidavit after his retirement as Assistant Public Prosecutor. Absence of his affidavit should not come in the way of the applicant - State in getting the delay condoned in this case if it is found to be condonable.
4.It often happens that the approach of a man on the verge of retirement from service becomes casual, cavalier and cursory. He often develops tendency to lose interest in matters on hand and tackle problems arising therefrom. Such approach and attitude on his part would develop in him something like forgetfulness. In that view of the matter, the possibility of the concerned Assistant Public Prosecutor's forgetting to apply for a certified copy and to send his proposal, if any, for preferring appeal against the judgment and order in question cannot altogether be ruled out. In that view of the matter, I am of the opinion that the applicant State can be said to have made out a sufficient cause for condonation of its delay in preferring the appeal in question.
5.In the result, this application is accepted. The delay in preferring the appeal in question is condoned. Rule issued on this application is accordingly made absolute.
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