STATE OF GUJARAT Vs. MUSTAQ MUSA DUNGARIA

JUDGEMENT

(1.) . The short but important question that arises for consideration in this Miscellaneous Criminal Application is, whether the default committed by the Public Prosecutor in charge of the case in the first instance, in not applying for the certified copy of the impugned judgment and order in time, that is to say within the prescribed period of limitation, and thereafter, in the second instance, not forwarding his candid opinion whether to file appeal or not to the legal Department and thereby allowing the entire period of limitation to expire, can be said to be just and proper circumstance constituting 'sufficient cause' referable to the period prior to the expiry of the limitation for the purposes of condoning the delay ? In other words, whether in a case wherein the entire period of limitation having already been expired, the State can still be permitted to file an appeal more particularly when the Public Prosecutor in charge of the matter was not that prompt and duty conscious enough to apply for the certified copy of the impugned judgment within the time prescribed and also did not propose an acquittal appeal, and/or accordingly, forward even a negative report to the said effect to the Legal Department ?

(2.) . To state few relevant facts briefly, as far as they are imminently necessary to decide the question raised above, respondent Mustaq Musa Dungaria, who came to be tried for the alleged offences punishable under Sec. 302 of the Indian Penal Code read with Sec. 135 of the Bombay Police Act, 1951, by the learned Additional Sessions Judge, Vadodara in Sessions Case No. 93 of 1993, was at the end of the trial, by a judgment dated 30-3-1993 ordered to be acquitted. Feeling aggrieved by the same, the State of Gujarat preferred a Criminal Appeal, the same being Criminal Appeal No. 401 of 1994 before this Court, wherein office has raised an objection that the same was beyond time by 110 days, giving rise to the present Misc. Criminal Application under Sec. 5 of the Limitation Act, inter alia praying for the condoning the delay in question.

(3.) . Making out a case for "sufficient cause" to condone the delay in question, Mr. R. L. Raval, Legal Assistant, Legal Department, Gandhinagar on affidavit has stated that the impugned judgment and order of acquittal was pronounced on 30-9-1993 and the certified copy of the same was applied quite belatedly as long back as on 5-3-1994 by the Additional Public Prosecutor, Vadodara, that is to say, after the period of limitation had already expired . This copy was ready and made available to the learned Public Prosecutor on 5-4-1994, who in his turn forwarded the Same to the legal Department vide his letter on the very day. Further, according to the deponent Mr. R. L. Raval, Mr. T. S. Nanavati, learned Advocate appearing for the original complainant, on filing the Criminal Revision Application in this Court challenging the impugned order of acquittal, also forwarded a copy of the same alongwith his letter dated 29-12-1993, requesting the Secretary, Legal Department to file an acquittal appeal in the High Court on behalf of the State. On receipt of a copy of the said Criminal Revision Application by the Office of the Public Prosecutor, High Court, the said office also in its turn addressed a letter to the Legal Department on 10-1-1994 inquiring as to whether the State was inclined to file an acquittal appeal or not. On the basis of this letter, according to the deponent, the Legal Department wrote a letter on 17-1-1994 to the Additional Public Prosecutor, Vadodara requesting him to send the case papers to the Legal Department alongwith the copy of the impugned judgment and order of acquittal. Since this was not responded to, the Legal Department was once again constrained to send reminder telegrams after telegrams on 3-3-1994, and thereafter on 15-3-1994 and 31-3-1994. This also was quite surprisingly not responded to and as a result whereof the Legal Department was further constrained to file an acquittal appeal on the basis of the memo of Criminal Revision Application and copy of the impugned judgment and order of acquittal supplied by the original complainant, and accordingly the G. R. was forwarded to the Office of the Public Prosecutor, High Court on 16- 4-1994 to file acquittal appeal, which ultimately came to be filed on 18-4-1994 as 17th was a holiday being Sunday.