STATE Vs. GOUTAM GHOSH AND ORS.

JUDGEMENT

(1.) This order arises out of hearing of a petition under Sec. 5 of the Limitation Act filed by the petitioner, State of West Bengal praying for an order condoning the delay of two months and fifteen days in the filing of its Leave Petition before this Court for preferring an appeal against the Judgment and Order of acquittal of the accused persons dated 21.7.2000 passed by the Ld. All. Sessions Judge, 3rd Court, Alipur in S.T. No. 1(2)/98 (S.C. No. 25(12)/97) wherein all the accused were facing charges under Sections 498- A/34, 306 & 304-B Indian Penal Code The contention of the Ld. Public Prosecutor is that the State wants to challenge that order of acquittal since it is not in accordance with law and is based on misappropriation of facts and law and thereby has caused a total failure of justice.

(2.) The explanation of the delay has been given by the petitioner in its affidavits as follows. The impugned judgment was passed on 21.7.2000. The Ld. Public Prosecutor Mr. J.N. Ray, who had conducted this trial was lying seriously ill on that date and ultimately he expired in Nov., 2000. In the event of any order of acquittal, the conducting P.P. has to pass an opinion over the illegality and/or the infirmities underlying the judgment and to recommend to the Govt. preferring of an appeal against that judgment and order. In the instant case, the P.P. concerned who has also the Chief Public Prosecutor for the District of 24-Parganas (South) having died immediately after the passing of the judgment could not have any scope to have the said exercises. Few months after his death Mr. Sushil Chakraborty was appointed the Public Prosecutor for that district and after taking charge of his office he passed an opinion recommending the preferring of an appeal against the aforesaid judgment of acquittal on perusal of the records of the case. After getting this opinion of the P.P. concerned the department applied for certified true copy of the judgment in the month of Dec. 2000 and obtained the same within few days. As per the standing order of the Govt., for the purpose of preferring an appeal in such a case the District Magistrate of the concerned district has to move the Legal Remembrancer, West Bengal, justifying such prayer and the L.R. in his turn obtains the opinion of the High Court over the same and thereafter ultimately passes order for preferring the appeal. Since the impugned judgment was passed on 21.7.2000, the period of Limitation of 60 days expired on 19.9.2000 in view of the provisions of Sec. 378(5) Code Criminal Procedure After getting the opinion of the P.P. and observing all the formalities as required under the rules the State filed the application for leave to appeal in the month of Feb. 2001 and the delay thus caused was quite beyond the control of the department. Hence, the State has now filed this petition for condonation of the delay to enable it to file the Leave Petition before this Court in view of the complexion and the gravity of the offence.

(3.) The O.Ps. were the accused persons in the criminal case concerned before the trial Court have contested this application under Sec. 5 of the Limitation Act by filing an affidavit-in-opposition. They have denied some of the material allegations of the petitioner-state. But they have not denied or disputed the statements that the erstwhile conducting Public Prosecutor Mr. J.N. Ray was lying seriously ill on the date on which the impugned judgment was delivered by the trial Court and that he ultimately expired immediately thereafter and also that the new Public Prosecutor Mr. Sushil Chakraborty was appointed by the Govt. a few months thereafter and after taking charge of the office and perusing the records of the concerned case he opined that an appeal should be preferred against that judgment and thereafter the department filed application for taking certified copy of the said judgment and then the District Magistrate moved the Legal Remembrancer justifying such a proposal for preferring an appeal against that judgment whereupon the Legal Remembrancer obtained the opinion of the Public Prosecutor of High Court on that question and after that finally passed an order for preferring the said appeal and thus the State filed the application for Leave to appeal in the month of Feb. 2001 after observing the formalities as required under the Rules and in the process the delay for 2 months 15 days took place being quite beyond the control of the department of the Govt. concerned and such delay was totally unintentional. It is the case of the O.Ps. That the applicant-State has not shown any sufficient reason to explain away the delay which was to their knowledge and that it is as late as on 11th Jan., 2001 that the Ld. Public Prosecutor suddenly made a proposal for preferring an appeal and there is no explanation whatsoever as to what happened prior to that. It is further stated by the O.Ps. that they filed a petition under Sec. 340 Code Criminal Procedure in the trial Court in connection with which the Ld. P.P., Sri Sushil Chakraborty, appeared by filing Vakalatnama on 18th Dec., 2000 and this shows that he had full knowledge about the impugned judgment having been passed by the trial Court on 21.7.2000 and the delay thus indulged in by the State to file the appeal in the month of Feb., 2001 cannot be said to have been properly explained away due to such a fact. The further contention of the O.P. is that the applicant-State has not spelt out the particular dates on which they filed petition for certified copy of the judgment or they took action for observing the various formalities as per the rules as have been alleged in its petition. Neither it has explained what it did during the period of first 60 days, that is, the period of limitation after the judgment was delivered. The O.Ps. have cited a host of reported decisions on their affidavit-in-opposition in support of their contention that under the Law of Limitation as settled by those judgments of the apex Court and different High Courts the delay indulged in by the State in the matter of preferring of appeal having not been explained properly is incapable of being condoned. According to the O. Ps., therefore, the petition for condonation of the delay is liable to be dismissed and the proposed appeal cannot be admitted.