Baljeet Singh Malik vs State
2012 Latest Caselaw 4893 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      Crl.Appeal No. 1385/2011

                                      Decided on : 22nd August, 2012


BALJEET SINGH MALIK                ..... Appellant
               Through:            Counsel (name not given)

                             versus

STATE                              ..... Respondent
                        Through:   Mr. Sunil Sharma, APP

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

Crl.M.A.17662/2011

1. This is an application filed by the appellant under Section 5 of

the Limitation Act, 1963 seeking condonation of 170 days'

delay in filing the appeal.

2. Briefly stated, the facts of the case are that on 30.9.2008, an

information was received vide DD No.6-A at 3:45 A.M. by

PS:Vasant Kunj, New Delhi that one Ms. Soumya

Vishwanathan was found murdered in her Maruti Zen car,

bearing the registration No.DL-2CR-5801 at Nelson Mandela

Marg, Vasant Kunj, New Delhi, who was shot in her head by a

gun. An FIR No.481/2008 under Section 302 IPC was

registered on the same date at PS:Vasant Kunj, New Delhi.

The investigation of the said case was carried out by Inspector

Shakir Hassan, the then SHO, Vasant Kunj, New Delhi. In the

meanwhile, the accused Ravi Kapoor along with his

associates, Amit Kumar Shukla and the present

appellant was arrested in FIR No.69/2009 under Sections

302/365/397/201/411/403/412/468/471/482/120B/34 IPC

and Section 25 of the Arms Act registered by PS:Vasant Vihar,

New Delhi. In the said case, the abovenamed persons had

kidnapped one Ms. Jigeesha Ghosh from near her house in

Vasant Kunj area and after robbing her of valuables and

using her ATM card, killed her and threw her body near

Faridabad, Haryana. All the above-mentioned persons were

apprehended by the Police. The Police recovered from the

possession of Ravi Kapoor one santro car bearing No.HR 18-

C-3409, one loaded country made pistol along with three live

cartridges and one empty/fired cartridge. The said accused

disclosed that he and his associates were also involved in the

killing of a girl at Nelson Mandela Marg, New Delhi on

30.9.2008, besides other heinous cases of kidnapping,

murder, theft etc. It was on this basis that the

abovementioned persons were arrested in FIR No.481/2008.

3. A charge under Maharashtra Control of Organized Crime Act,

1999 (hereinafter referred to as 'MCOCA') was framed against

the appellant by the learned ASJ-01, Saket, New Delhi vide

order dated 9.5.2011. Apart from the charges under MCOCA,

the appellant was charged for various other heinous offences

under Sections 302 and 411 IPC.

4. The appellant, feeling aggrieved, has filed the present appeal

against the charges framed under MCOCA as Section 12 of

MCOCA enables an accused to file an appeal against all the

orders not being interlocutory orders. The reason given by the

appellant for the delay of 170 days in filing the appeal is that

his father, Dharambir Singh Malik, who was acting as a

Parokar for the purpose of filing the appeal, is a senior citizen

and has been suffering from heart diseases. It has been

stated that there is no other male member in his family who

could look after the case of the appellant. Consequently, his

father, on account of being sick, could not file the appeal on

time. Another reason given by the appellant for delay in filing

the appeal is that his father had to arrange for the funds

which also entailed some time and, therefore, the delay, being

neither intentional nor willful, the same was sought to be

condoned. The application is supported by the affidavit of

Dharambir Singh Malik, the father of the appellant.

5. The State has filed reply to the application and has contested

the claim of the appellant that his father was not having

sufficient funds or that he was unable, on account of his ill-

health, to attend to the matter. It has been stated by the

State that the appellant was, at all times, represented by a

counsel and even after framing of the charge for the offences

under MCOCA, the father of the appellant continued to appear

before the learned Trial Court during the course of

examination of the witnesses and kept on pursuing the matter

by the instructing counsel who have been defending the

appellant, which clearly shows that the plea of illness of the

father or lack of funds is not a genuine reason for not having

filed the appeal on time. It has, accordingly, been prayed that

the appellant has not been able to show any genuine and

'sufficient cause' for condoning the delay in filing the appeal.

On the contrary, it has been stated that the evidence has

already been recorded and the appellant has been charged for

an offence of murder of Soumya Viswanathan, a Journalist, on

the night of 30.9.2008 while she was going home in her

Maruti Zen Car, bearing registration No. DL-2CR-5801.

Accordingly, it has been prayed that the appeal of the

appellant deserves to be dismissed on the ground of its being

time barred.

6. I have heard the learned counsel for the appellant as well as

the learned APP and have also gone through the record.

7. The allegations levelled against the appellant are various in

nature inasmuch as he is alleged to have killed a young

journalist in the middle of the night while she was going

home. Keeping in view the criminal proclivities, a charge

under MCOCA was also framed. An appeal against the order in

terms of Section 12 of MCOCA has to be filed within a period

of 60 days. No doubt, the law regarding the condonation of

delay has been interpreted by the Hon'ble Supreme Court

very liberally and it has been observed that what is important

to be seen by the Court is not the quantum of delay but the

bonafides of the person who is seeking the condonation. It is

in this context that the Apex Court has also observed that

while considering the prayer for condonation of delay, the

Court must also prima facie see the bona fides of the person.

Reliance in this regard can be placed on N. Balakrishnan -vs-

M. Krishnamurthy, AIR 1998 SC 3222.

8. Keeping these two broad parameters in view, so far as the

prima facie case against framing of the charge is concerned, a

perusal of the order of framing of charge does not show any

infirmity in framing of the charge against the appellant as, at

the stage of the framing of charge, only prima facie evidence

has to be seen, which may show complicity of the appellant.

9. So far as the condonation of delay is concerned, the

explanation, which has been given by the appellant, is vague

and uninspiring. This is on account of the fact that the

appellant has stated that his father is an old person and

suffering from heart ailments, but no documentary proof of

the same has been annexed. It has been the case of the

appellant that his father was acting as a Parokar and because

of the heart ailments, he was not in a position to file the

appeal. This ground has been refuted by the State by way of a

reply by stating that he was present in Court after framing of

the charge and was instructing the counsel. The appellant has

not chosen to file a rejoinder to this. Therefore, the plea taken

by the State cannot be brushed aside without any merit. The

appellant's application for condonation of delay is so sketchy

that even the word 'sufficient cause' has not been used in the

application, which is sine qua non for the condonation of

delay, as the delay, which occur in such cases, should be

because of some reason/cause beyond the control of a party.

On the contrary, what has been urged is that the delay was

unintentional. This, in my view, is not sufficient 'averment'

to bring the case of the appellant within the four corners of

Section 5 of the Limitation Act. The second plea of the

appellant that want of funds was another constraint which

prevented his father from filing the appeal on time also does

not inspire confidence and does not seem to be bona fide. The

appellant is represented by a private counsel. If there was

lack of funds, he could have got legal aid and sought a

counsel from the Court concerned.

10. I feel since the recording of evidence has already started, this

is only a belated attempt on the part of the appellant to delay

the proceedings of the Trial Court. I consider this application

seeking condonation of delay as without any merit and the

same is accordingly dismissed.

V.K. SHALI, J.

August 22, 2012 tp