STATE OF GUJARAT Vs. BASINDAR SHIVJI CHAUHAN

JUDGEMENT

(1.) Heard Mr.K.C. Shah, learned counsel appearing for the applicant-State. The present application is preferred by the applicant-State under Section 5 of the Limitation Act for condonation of delay, whereby the applicant-State has prayed for condonation of delay caused in preferring the appeal against the judgment and order of acquittal dated 10th February, 2004, recorded by the learned Additional Sessions Judge, Fast Track Court No.6, Porbandar, in Sessions Case No.18 of 2003, whereby the learned Judge acquitted the opponent-accused from the charge of offence punishable under Sections 376, 323 and 452 of the Indian Penal Code. It is contended that for the reasons mentioned in paragraph nos.3,4,5 and 6 of the memo of the application, the delay of 399 days caused in preferring the appeal may kindly be condoned.

(2.) According to us, this is a case of gross delay and the applicant-State is under obligation to convince this Court by assigning sufficient and convincing reasons for causing such an inordinate delay of 399 days. It is averred that the certified copy of the judgment and order was applied for by the learned Public Prosecutor on the very day of the judgment and order i.e. on 10th February, 2004 and it was ready for delivery on 23rd April, 2004. Thereafter, the learned Public Prosecutor had forwarded the proposal for filing appeal to the Legal Department on 25th May, 2004 i.e. after a month. It was received by the said Department on 28th May, 2004 and ultimately, the State decided that the appeal against the judgment and order of acquittal should be filed and the papers of investigation were submitted to the Deputy Secretary Incharge. As per the decision taken by the Deputy Secretary on 25th June, 2004, the concerned Branch was handed over the papers. So it can be said that about a month's time was taken by the officer who was to instruct the concerned Branch to proceed further in the matter. The Government issued necessary resolution and it was sent to the office of the Public Prosecutor in the High Court and ultimately the appeal came to be filed on 23rd August, 2004. The State has preferred appeal after a delay of 399 days. The maximum period of delay is found to have been caused by the learned Public Prosecutor, who was appearing at the trial Court because after receipt of certified copy on 23rd April, 2004, he had sent the proposal after a lapse of about one month and the office of the Public Prosecutor in the High Court took more than one year in preferring the appeal because the papers were received by the office of the Public Prosecutor in the High Court on 25th June, 2004 but the appeal has been preferred on 23rd August, 2005. No reasonable satisfactory explanation is coming forth and we are not convinced with the arguments of Mr.Shah that the office of the Public Prosecutor in the High Court was all throughout waiting for the copies of the documents, including the depositions recorded by the trial Court.

(3.) We are aware that no genuine litigant should be permitted to suffer on account of any lethargy on the part of a lawyer or his clerk and the Court should consider the request for condonation of delay liberally and approach of the Court should be practically liberal in such cases. But the Court is supposed to see that the genuine litigant does not suffer on mere technical ground of limitation. So while dealing with the application under Section 5 of the Limitation Act wherein it is prayed that inordinate delay is also required to be condoned, then the strength in the case of such litigation can be looked into prima facie and the Court can ascertain before exercising discretionary jurisdiction whether the applicant has any fair and strong arguable case and from that point of view, we have gone through the judgment intended to be assailed by filing leave to appeal, and according to us, on merit also there is no strength in the say of the applicant-State.