Delhi High Court
State vs Harihar @ Chitu & Ors on 19 April, 2016
$~11.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 27/2014
STATE ..... Petitioner
Through : Ms.Aashaa Tiwari, APP for the State.
Inspr.Rajendra Prasad, SHO, Aman
Vihar.
versus
HARIHAR @ CHITU & ORS ..... Respondents
Through : Mr.O.P. Saxena, Adv. for R-1.
Mr.Azhar Qayum, Adv. for R-2.
Mr.Rajender Chhabra, Adv. for R-5.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
ORDER
% 19.04.2016
CRL.M.A. 604/2014
1. This is an application filed by the appellant seeking codonation of 423
days‟ delay in filing the present criminal leave to appeal petition.
2. Learned counsel for the petitioner submits that the leave to appeal could
not be filed within the time allowed for bona fide reasons. Counsel further
submits that while dealing with application for condation of delay the
Court must take a liberal view in the matter.
3. Present application has been vehemently opposed by learned counsel for
the respondents, who submit that the affidavit filed by the then APP
explaining the reasons for delay are not bona fide. It has been stated in the
affidavit that the leave petition could not be filed within the period of
limitation as the file of this case got mixed up with the other files and also
citing the illness of the clerk is an afterthought, which is evident from the
fact that no such grounds were raised in the application filed by the State
seeking condonation of delay. It is also contended that the application is
not bona fide and, thus, should be rejected.
4. We have heard learned counsel for the parties and also perused the
application seeking condonation of delay. The grounds, as set out in this
application, read as under:
"4. That the filing of the Leave to appeal against the impugned
judgment has been delayed on account of many factors. The
judgment was pronounced on 26.07.2012 and considerable time
was taken in procuring the certified copy of the judgment. After
procuring all the documents Public Prosecutor prepared its report
recommending filing of appeal against the impugned judgment and
sent the file to the Chief Public Prosecutor concerned, and
therefore considerable time was taken for discussions on filing of
the appeal. Thereafter, the file was forwarded to Director of
Prosecution for appropriate legal action for filing of appeal.
5. That after perusal of file by the Director of Prosecution, he
found the case fit for filing the appeal and the file was forwarded to
Secretary (Law & Justice). The Secretary (Law & Justice) went
through the file and sent the same to Director Prosecution through
Deputy Secretary Home Govt. of NCT of Delhi. File was also sent
to competent authority, i.e. Lt. Governor Delhi for obtaining
approval for filing this appeal.
5A. That Director of Prosecution further forwarded the file to
Deputy Commissioner of Police, concerned for taking necessary
action for filing appeal in the Hon'ble High Court. Subsequently
file was sent to the Standing Counsel (Criminal) in the High Court.
6. That the appeal was drafted and the same is being filed
alongwith the supporting affidavit."
5. A perusal of the aforestated grounds would show that the grounds are
completely devoid of particulars. No dates have been mentioned as to
when the certified copy was applied and when the same was delivered.
The grounds also do not give the dates as to when the file was marked and
when was the same returned.
6. We may also notice that an additional affidavit has also been filed by the
then APP for the State wherein it has been stated that the judgment was
pronounced on 26.7.2012. On 12.10.2012 after passing through „various
concerned authorities‟, the file was sent from the office of the concerned
DCP to the office of Standing Counsel (Criminal) to file criminal leave to
appeal petition. The said file was received in the office of the then APP on
31.10.2012. After the file was received, the clerk of the then APP fell ill
and he remained on leave for a period of one week. It is also stated that
during this period of one week, file of this case got mixed up with other
files in the office of APP due to which the leave petition could not be filed
within the time allowed.
7. The law with regard to dealing with application seeking condonation of
delay is well-settled. It has repeatedly been held by the Supreme Court of
India that a liberal approach should be followed while dealing with such
applications, provided the grounds seeking condonation of delay are bona
fide and the delay is not caused either on account of inaction or
carelessness.
8. In the case of Postmaster General & Ors. v. Living Media India Limited
and Anr., reported at (2012) 3 SCC 563, it was held as under:
"29. In our view, it is the right time to inform all the government
bodies, their agencies and instrumentalities that unless they have
reasonable and acceptable explanation for the delay and there
was bona fide effort, there is no need to accept the usual
explanation that the file was kept pending for several
months/years due to considerable degree of procedural red tape
in the process. The government departments are under a special
obligation to ensure that they perform their duties with diligence
and commitment. Condonation of delay is an exception and
should not be used as an anticipated benefit for government
departments. The law shelters everyone under the same light and
should not be swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation
offered by the Department for the delay except mentioning of
various dates, according to us, the Department has miserably failed
to give any acceptable and cogent reasons sufficient to condone
such a huge delay. Accordingly, the appeals are liable to be
dismissed on the ground of delay."
9. Upon examination of the present application and the affidavits filed, to
say the least, the same do not disclose bona fide grounds to condone the
delay of 423 days‟ in filing the present criminal leave to appeal petition.
The reasons so stated in the application as also in the affidavits are not
only mechanical but are stereotype in nature. We also find merit in the
submissions made by the counsel for the respondents that in case the file
of this case was misplaced in the office of the then APP and the clerk of
the then APP was ill, these grounds would have been urged at the very
first instance when along with the criminal leave to appeal petition
Crl.M.A.604/2014 was filed. In view of above, we are of the opinion that
the delay has not been satisfactorily explained.
10. Accordingly, in the facts of such a case and having regard to the
observations made by the Supreme Court in the case of Postmaster
General & Ors. (supra), we are unable to condone the delay. The
application is accordingly dismissed.
CRL.L.P. 27/2014
11. Criminal Leave to appeal petition stands dismissed in view of the order
passed in the application.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
APRIL 19, 2016
msr
