STATE OF SIKKIM Vs. RUP NARAYAN RAI

JUDGEMENT

(1.) This is to consider an application under Sec. 5 of the Limitation Act, 1963 for condonation of delay of 273 days in preferring criminal appeal against the judgment dtd. 30/6/2022, passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 at Namchi in Sessions Trial (POCSO) Case No. 27 of 2020 in the matter of State of Sikkim vs. Rup Narayan Rai (Chamling) and Others. The Stamp Reporter's computation suggests that the delay is 274 days.

(2.) The delay is sought to be explained on various grounds. According to the Applicant, on 28/9/2022 the learned Public Prosecutor having received a copy of the judgment on 26/9/2022 opined that there were very few and trivial grounds to prefer an appeal but nevertheless, opinion may be sought from the learned Advocate General's Office. The time taken by the learned Public Prosecutor to give his opinion is explained on the ground that the case involved a lot of evidence and further that he had his personal and other professional engagements. On a chance meeting on 9/12/2022 by the learned Public Prosecutor with the learned Additional Public Prosecutor of this Court, it is said, he inquired about the status of the opinion but the learned Additional Public Prosecutor had no knowledge. The learned Additional Public Prosecutor was, however, attending to his ailing mother at Gyalshing. In February 2023 on the reopening of this Court, the learned Additional Public Prosecutor inquired about the legal opinion and found that there was no opinion sought. The learned Additional Public Prosecutor on learning that the testimony of the victim had not been demolished, sought for a copy of the judgment for preferring an appeal. The copy of the judgment was received on 28/3/2023, after which it was examined, discussed and opined that there was sufficient grounds for preferring an appeal. Thereafter, the learned Additional Public Prosecutor on 29/3/2023 sought for approval from the Director General of Police to file the appeal. The Files, thereafter, moved from one Officer to the other on various dates, back and forth, numerous times. A certified copy of the judgment was obtained on 12/4/2023. On 19/5/2023, the Director General of Police forwarded the File to the Chief Secretary, Government of Sikkim, for approval and finally to the Hon'ble Chief Minister on 24/5/2023, who eventually sanctioned the filing of an appeal on 30/5/2023. Even thereafter, it was only on 15/6/2023, the Legal Officer, Police Headquarter, forwarded the File to the learned Advocate General for preferring an appeal. The Office of the Advocate General, thereafter took further time to prepare the appeal and finally filed it on 29/6/2023. According to the Applicant, delay was caused due to sufficient and bona fide reasons and the State had been vigilant and diligent.

(3.) The respondents have filed a reply to the application for condonation of delay. It is contended that the application is vexatious, harassive and based on misconceived facts. It is alleged that it has been made with mala fide intention and ulterior motives. It is pointed out that as per the copy of the judgment annexed with the appeal, the judgment was ready on 1/7/2022 and therefore no explanation is forthcoming from the Applicant for the period 1/7/2022 to 26/9/2022. It is also submitted that the explanations made by the Applicant do not reflect that the prosecution was diligent. The respondents contend that the applicant had any substantial merits in the appeal which was filed after a delay of 275 days and not 273 days as pleaded by the Applicant.