STATE OF GUJARAT Vs. RAMESH LAXMANBHAI CHAUHAN

JUDGEMENT

(1.) In a delay condonation application, filed in any appeal or application, under Sec. 5 of the Limitation Act, 1963, whether it is always incumbent upon the Court to mechanically issue notice to the other side before deciding the same, one way or the other, or in a given case, depending upon the gravity and seriousness of the offence and the question of "substantial justice" involved, applying the test of exercising discretion by a right -minded man, the delay in question can be condoned even without issuing notice to the respondents - This, in short, is the question of quite great importance which has been taken up for consideration in the back -drop and context of the following facts :

(2.) To briefly narrate few relevant facts as far as they are necessary to decide the question raised above, it may be stated that the State of Gujarat has filed an appeal for enhancement of sentence against the impugned judgment and order of sentence dated 18 -7 -1992, rendered in Sessions Case No. 79 of 1991, wherein respondent Ramesh L. Chauhan who came to be tried for the alleged offences punishable under Secs. 376, 323, 506 of the I.P.C., was at the end of trial ordered to be convicted for the same and sentenced to rigorous imprisonment for 2 years and fine of Rs. 200.00, etc., etc., as stated in detail in the impugned cider. While screening and processing the appeal papers, according to the office objection, the same ought to have been filed on or before 19 -9 -1992 as the period of limitation provided for the enhancement of sentence is 60 days from the date of impugned order of sentence. Accordingly, the office raised objection that since the appeal was filed en 1 -10 -1992, there was a clear delay of 11 days. It is under this circumstances that the State of Gujarat has filed the present Misc. Criminal Application for condonation of delay. While explaining the alleged delay of 11 days, it is the case of the petitioner -State that the impugned judgment and order of conviction and sentence was passed on 18 -7 -1992 and the certified copy of the same was applied for on 1 -8 -1992. This was ready for delivery on 4 -8 -1992 and was ultimately collected on 5 -8 -1992. Thereafter, the learned P.P. vide his letter dated 17 -8 -1992 addressed to the District Magistrate, Sabarkantha endorsing also a copy of the same to the Secretary, Legal Department, Gandhinagar forwarded the proposal for filing appeal for enhancement of sentence. A copy of the said proposal was received by the Registry of the Legal Department on 24 -8 -1992. It further appears that the Registry by mistake sent the said proposal to the Civil Branch which in turn ultimately directed the same to the Criminal Branch, which was received by it on 26 -9 -1992. Immediately thereafter, the concerned Assistant placed the said proposal before the Deputy Secretary on 29 -9 -1992 for appropriate order, who in his turn on the very day took decision to file appeal for the enhancement of sentence. The resolution to the said effect was thereafter immediately forwarded to the learned P.P., High Court of Gujarat, Ahmedabad which was received in his Office in the late evening of 30 -9 -1992 and the Office in its turn on the very next day, i. e., 1 -10 -1992, preferred the present appeal for enhancement of sentence which, as stated above, suffers from delay of 11 days.

(3.) Now, at this admission stage, the important question which has arisen for consideration is - "Whether it is always necessary to issue rule to the other side before condoning the delay of 11 days in filing the present appeal for enhancement of sentence or that to put it otherway, this Court without issuing the rule can as well straightway, scrutinising the facts and circumstances occasioning delay in question, liberally construing the same so as to advance the substantial cause of justice condone the delay ? Incidentally, the very same question arose for consideration before this Court, wherein one of us (K. J. Vaidya, J.) in group of two applications, the same being Misc. Criminal Applications Nos. 237 and 238 of 1994, decided on 19 -4 -1994 was a party, which now rests concluded holding that in cases where there is any delay in filing of appeal or application, it is indeed not necessary for this Court to always issue notice to the other side before either condoning or not condoning the delay, and that it can certainly exercise its judicial discretion one way or the other, on the basis of facts and circumstances of that particular case and settled legal position, by applying three basic tests, such as : (i) Whether on scrutinising facts and circumstances occasioning delay and construing the same liberally "sufficient cause" for condoning the delay was made out or not ? (ii) Whether bearing in mind the question of "substantial justice" involved, delay howsoever gross, deserves to be condoned in the overall interest of justice ? or to put it otherway, (iii) Whether not condoning the delay would in way seriously undermine the cause of justice, resulting into miscarriage of justice ? In this application also, since we have decided to broadly follow the very same view and the reasoning as given in Misc. Criminal Applications Nos. 237 and 238 of 1994 (supra), we for the sake of convenience reproduce the same in verbatim from para 4 onwards of the said judgment, which reads as under :