RAMESH SURAKIYA VASVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS Criminal Misc. Application is filed for condonation of delay of 4569 days in challenging the judgment and order dated 12.7.1999 rendered by learned Additional Sessions Judge, Bharuch, camp at Rajpipala, in Sessions Case No.237 of 1996, whereby, the applicant was convicted for offence under Section 302 of Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for life. Learned Sessions Judge has further ordered fine of Rs.500/- and 10 days imprisonment, in default of payment of fine.

(2.) WE have heard learned counsel for applicant-appellant on the aspect of condonation of delay. As the delay is for the period of more than 10 years, we have also heard learned counsel for applicant on the merits of the appeal against the order of conviction. The question of condonation of delay in statuary appeals in conviction, more particularly the conviction under Section 302 of IPC is viewed very liberally and normally Courts do not refuse to exercise the discretion to condone the delay. However, in the present case, we find that the judgment was rendered on 12.7.1999 recording conviction and sentence of the accused and while serving the sentence, the convict, the present applicant, did not file any appeal for about 2 years. On 21.8.2001, he was released on furlough and he absconded. He was brought back to jail by police on 1.10.2009 i.e. after about eight years. Even thereafter, he did not file appeal for more than two and half years and now on 14.3.2012 the appeal being Criminal Appeal No.286 of 2012 is filed challenging his conviction dated 12.7.1999, and the appeal being barred by limitation, the present application for condonation of delay of 4569 days is filed, which is under consideration. It is stated in the application that initially the certified copy of the judgment was sent to the High Court Legal Aid Committee so as to prefer the appeal but since the applicant absconded for about 2949 days, he could not prefer appeal in time. It is further stated in the application that after he was rearrested on 1st October, 2009, again the copy of the judgment was sent to the High Court Legal Aid Committee and thus, the delay has occurred. In our view, the explanation offered in the application is not satisfactory inasmuch as, one of the relevant aspect while considering condonation of delay is as to whether the applicant has taken any undue advantage in approaching the Court beyond the period of limitation, and in the facts of this case, we find that from 12.7.1999 to 21.8.2001, there is no explanation much less any satisfactory explanation and from 21.8.2001 to 1.10.2009, not only there is no explanation but that is the period of about 8 years, where the applicant has taken undue advantage by not preferring the appeal. Further, even after he was rearrested in October, 2009, there is no explanation, since we find that certified copy annexed with the present appeal is dated 20.7.2011. Under these circumstances, sufficient cause is not shown for delay and therefore, delay does not deserve to be condoned. However, since the applicant is undergoing rigorous imprisonment for life, before refusing to exercise the discretion, to satisfy ourselves on the aspect that refusal to condone delay should not result into miscarriage of justice, we had called for record and proceedings of the sessions case, vide order dated 28.3.2012, for considering the merits of the appeal against order of conviction and as recorded earlier, we have also heard the learned counsel for appellant on merits of the appeal.