SUDIST JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) A limitation petition which is I.A. No. 1377 of 2008 has been filed under Section 5 of the Limitation Act. The appellants have prayed for condonation of delay in filing the appeal. The judgment and order of the learned Additional Sessions Judge, Sitamarhi has been rendered on 31.7.2007. The appeal has been filed on 8.7.2008, as would be evident from the noting of the Stamp Reporter. Limitation therefore expired in the case on 30.8.2007.

(2.) IN the condonation application it is stated that after the judgment was passed in the case appellants were enlarged on provisional bail on 31.7.2007. The appellants being poor persons went to Punjab to earn their livelihood under the impression that they have been enlarged on regular bail. Under some mistake of fact and law the appeal could not be filed in time nor an application for confirmation of provisional bail could be made. It is only when the police went looking for them on issuance of non -bailable warrant of arrest they have surrendered in the court below on 14.5.2008 and they have decided to file the present appeal now. This according to the appellants is a substantive ground for condoning the delay in the interest of justice. In the normal course of things the Court always adopts a liberal approach in condoning delay. For after all it is the first forum of appeal which is available to a litigant and the Court ought to adopt a liberal approach in such matters. There is a hitch in the present case however. The informant has appeared in the appeal and after due indulgence given in this regard has filed a counter affidavit. He has taken a stand that the conduct of the appellants disentitles them to any indulgence or relief from this Court because the petition filed for condonation of delay suffers from the vice of suppressio veri and suggestio falsi.

(3.) THE stand taken in the counter duly supported by evidence is that after the conviction of the appellants on 31.7.2007 they had been enlarged on provisional bail till 30.8.2007 for filing appeal before the Hon ble High Court. On 30.8.2007 they filed haziri and a petition stating that appeal has been filed before the High Court but the number and the order passed therein is not available, therefore the period of provisional bail should be extended to do the needful. This period came to be extended to 14.9.2007 for producing the order of the High Court. After getting provisional bail initially on 31.7.2007 the appellants had filed petitions before the trial court of Shri Narsingh Prasad, Additional Sessions Judge, Fast Track Court No. VI, Sitamarhi on almost 11 occasions asking for extension of provisional bail for producing the High Court 'sorder. The dates are 31.8.2007, 14.9.2007. 5.10.2007, 5.11.2007, 13.11.2007, 23.11.2007, 3.12.2007, 20.12.2007, 10.1.2008, 6.2.2008 and 4.3.2008. The above fact can be verified from the perusal of order -sheet contained in Annexure -A to the counter affidavit.