STATE OF GUJARAT Vs. GANPATLAL SAVABHAI GODHANIA

JUDGEMENT

(1.) BY this application under section 5 of the Limitation Act, 1963, the applicant-State of Gujarat seeks condonation of delay of 1287 days caused in preferring the application seeking leave to appeal against the judgement and order dated 19th March, 2008 passed by the learned Special Judge (ACB), Court No.5, Ahmedabad city in Special Case No.1 of 2003, whereby the respondent-accused came to be acquitted of the offences under sections 7, 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988.

(2.) MR . H. K. Patel, learned Additional Public Prosecutor drew the attention of the court to the averments made in the memorandum of application as well as in the additional affidavit dated 23rd November, 2012 made by Mr. M. D. Mogal, In-charge Under Secretary, Legal Department, Gandhinagar as well as the affidavit in support of the said additional affidavit made by Mr. Bhaveshkumar S. Patel, Additional Public Prosecutor, City Sessions Court, Bhadra, Ahmedabad, to submit that the applicant has duly explained the delay caused in preferring the appeal. It was submitted that during the course of trial, the State was represented by one Shri R. N. Modi, learned Additional Public Prosecutor, who was due to retire at the relevant time. After the judgement came to be rendered on 19th March, 2008, the said Additional Public Prosecutor did not apply for a certified copy of the said judgement, as a result of which the office of the Public Prosecutor did not receive a copy of the judgement. Since the said Additional Public Prosecutor did not submit a certified copy of the said judgement at the relevant time, there was a delay in preferring the appeal. It was pointed out that after the resignation of Shri Modi, when it came to the knowledge of the learned Additional Public Prosecutor, City Sessions Court, Bhadra, Ahmedabad that the certified copy of the judgement had not been applied for, on the instructions of the learned Public Prosecutor, an application for obtaining a certified copy was made and thereafter, steps were taken for preferring the appeal. However, the concerned Public Prosecutor, who was handling the matter, was assigned additional work and as such, the present case had gone out of his sight and hence, there is some delay in rendering the opinion and sending the same to the Legal Department. It was pointed out that the concerned Additional Public Prosecutor has, by filing an additional affidavit before this court stated that the said fact and has pointed out that there was a delay in sending the opinion on account of oversight and overburden of work and that, henceforth, in future, he would take care to see that the opinions are forwarded to the Legal Department within the prescribed time limit. Under the circumstances, on account of default on the part of the concerned Additional Public Prosecutor, the applicant should not be penalized. It was submitted that it is settled legal position that in cases where there is a delay on the part of the Government, a certain amount of latitude is permissible. In the present case, there is no deliberate negligence on the part of the applicant in prosecuting the matter and as such, the delay deserves to be condoned.

(3.) THIS court has considered the submissions advanced by the learned counsel for the respective parties and has perused the decisions cited at the bar. A perusal of the averments made in the memorandum of the application seeking condonation of delay reveals that the impugned judgement and order acquitting the respondent was passed on 19th March, 2008, an application for certified copy thereof was made on 23rd November, 2011, the same was ready for delivery on 1st December, 2011 and was actually obtained on 5th December, 2011. Thereafter, the learned Additional Public Prosecutor, Ahmedabad city forwarded the proposal to the Legal Department by a letter dated 9th December, 2011 which was received on 16th December, 2011 and the concerned Branch received it on 19th December, 2011. Thereafter, necessary file was prepared and put up by the Deputy Section Officer before the Joint Secretary on 20th December, 2012 who took a decision to prefer an appeal on 22 nd December, 2011 and submitted the same before the Secretary and R.L.A. for approval thereof. Thereafter, instructions were issued to the Office of the learned Public Prosecutor, Gujarat High Court on 22nd December, 2011. However, since in the memorandum of application, the period between 19 th March, 2011 to 23rd December, 2011 had not been explained, an additional affidavit came to be made by Shri M. D. Mogal, In-charge Under Secretary wherein it is stated that under the Law Officers Rules, the concerned Public Prosecutor is required to send a copy of the judgement with his opinion. In the present case, the concerned Public Prosecutor did not apply for the certified copy and did not send his opinion to the Legal Department; hence, the Legal Department was not aware of the passing of the impugned judgement. Subsequently, the aforesaid fact came to the knowledge of the learned Public Prosecutor who applied for a certified copy and forwarded the same along with his opinion on 9th December, 2011 which was received by the Registry of the Legal Department on 16th December, 2011. Another affidavit has been filed by Shri Bhaveshkumar S. Patel, Additional Public Prosecutor, wherein the facts are slightly differently stated. In the said affidavit, it is stated that the learned Additional Public Prosecutor who had conducted the case, gave his resignation vide letter dated 19.8.2008. He did not apply for the certified copy of the judgement dated 19.3.2008. Subsequently when it came to the knowledge of the Office of the learned Additional Public Prosecutor that the certified copy had not been applied for, on the instructions of the main Public Prosecutor, an application for certified copy was made on 20.1.2009 and a copy of the judgement was obtained on 24.4.2009. Thus, while in the memorandum of application as well as in the affidavit filed by the In-charge Under Secretary, it has been stated that the application for certified copy came to be made on 23rd November, 2011, in the affidavit filed by the concerned Additional Public Prosecutor, it is stated that an application for obtaining the certified copy was made on 20th January, 2009. The learned Additional Public Prosecutor has further stated that he is working as an Additional Public Prosecutor since 17.9.2008 and that he has been assigned additional work to give opinions in a number of matters and that at the relevant time, many sessions cases were required to be conducted before the learned Additional City Sessions Judge and as such, he was overburdened. That in addition to his normal work, he was also required to conduct cases in the Evening Court due to which, his work load has increased, and therefore, due to being overburdened, he had lost sight of the receipt of the judgement in the present case. Later on, when it came to his knowledge, he gave his opinion on 9th December, 2011.