STATE OF GUJARAT Vs. DINESH KESHAVALA MAHETA

JUDGEMENT

(1.) Present is an application seeking condonation of delay of 115 days in filing the appeal.

(2.) It is to be seen that the impugned judgment was delivered by the learned Additional Sessions Judge, Fast Track Court, Dhrangadhra in Criminal Appeal No. 13 of 2003. The certified copy of the judgment was applied on 18th February, 2005 and was received on 19th February, 2005. It is not in dispute before me that the appeal against acquittal or an application seeking leave to file appeal against acquittal is required to be filed within ninety days including the days spent for obtaining the certified copy of the impugned judgment. It would appear that right from 19th February, 2005 to 26th April, 2005, the learned Public Prosecutor, Surendranagar did not do anything. He was sitting over the matter and for the first time, sent his proposal on 26th April, 2005, which was received in the Legal Department on 28th April, 2005 and in the concerned Branch on 29th April, 2005. The file was prepared by the concerned officer on 30th April, 2005 and the Deputy Secretary took a decision to file an appeal on 2nd May, 2005 and the said approval was approved by the Secretary & R.L.A. on 3rd May, 2005. The Government resolution was prepared on 3rd May, 2005 and was forwarded to the office of the Public Prosecutor, High Court of Gujarat on 3rd May, 2005, the same was received in the office of the Public Prosecutor on 4th May, 2005 with the certified copy of the judgment impugned. The judgment was delivered on 3rd February, 2005. The certified copy, as observed, was applied on 18th February, 2005 and was received on 19th February, 2005. The two days spent for obtaining the certified copy if are added to the period of limitation of ninety days, an appeal could be filed within ninety-two days from the date of the judgment, which would mean that the appeal was required to be filed latest by 6th May, 2005. The Public Prosecutor received the papers on 4th May, 2005, but unfortunately, none in the office of the Public Prosecutor cared to look into the question of limitation. The affidavit only says that on receiving the file, after collecting necessary information and materials, the concerned Assistant Public Prosecutor drafted the Appeal Memo and filed the appeal on 29th August, 2005. Assuming the limitation commences from 4th May, 2005, that is, the date on which the office of the Public Prosecutor received the Government Resolution and the file, then too, the appeal had to be filed within ninety days expiring on 2nd August, 2005. If the office of the Public Prosecutor is absolutely careless and negligent in discharge of its duties in not filing the appeal right in time, then, no Court can help the case and cause of the Public Prosecutor of the State Government. If the State Government appoints such Public Prosecutors, who are at all not interested in doing the Government work, but are interested in earning some money by doing some errand/works, then, the State has to thank itself. How can one digest the lapses on the part of the Public Prosecutor's Office. It is common knowledge that the moment a lawyer receives certain papers for filing appeal or revision, he would count the limitation and would try to file the appeal, revision or any proceedings within the period of limitation. In the present case, the appeal, which could be filed latest by 6th April, 2005, was not filed within limitation, but was filed after delay of 115 days. The entire period is the lapse on the part of the Public Prosecutor. Why the Public Prosecutor does not develop a practise to count the limitation immediately after receiving the papers so that unnecessary delay is avoided. It appears that in the office of the Public Prosecutor, everybody is somebody, therefore, nobody cares for anybody. It is unfortunate that the office of the Public Prosecutor did not look into the period of limitation and has felt content that as and when they will file the appeal, the High Court would be obliged by the appeal and would also be duty-bound to condone the delay. Fortunately, the power to condone the delay is with the High Court and not with the Government's Counsel.

(3.) When the cases of this nature are rejected on the question of limitation/ on the ground of delay, then, many times the person, who is required to be convicted or who could not secure any legal acquittal, is saved. Should this Court believe or record a finding that causing of delay in the matter like this, is purposeful to make the appeal hopelessly barred by limitation so that the guilty is not brought before the Court, and the appeal is dismissed on the ground of delay only. In the office of the Public Prosecutor, there are number of Advocates and other staffs. I had been repeatedly asking the learned Counsel for the State to write to the Government to provide additional and better hands, but it appears that everybody is happy with whatever they have because each of them believes that if there is any delay, the same is to be condoned very lightly.