Delhi High Court
State (Nct Of Delhi) vs Jai Prakash & Ors on 24 May, 2017
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing and order: May 24th 2017
+ CRL.L.P. 323/2017
STATE (NCT OF DELHI)
..... Petitioner
Through: Mr. Kewal Singh Ahuja, Additional
Public Prosecutor for the State
versus
JAI PRAKASH & ORS
..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
ORDER
%
P.S. TEJI, J. (ORAL)
Crl. M.A. No.8868/2017 (Exemption)
Exemption allowed subject to all just exceptions.
Application stands disposed of.
Crl. M.A. No.8867/2017 (Condonation of delay) & Crl. L.P.
No.323/2017
1) By this application filed under Section 5 of Limitation Act read
with Section 482 of Cr. P.C., the petitioner seeks condonation of delay
of 195 days in filing the accompanying petition for seeking leave to
appeal under Section 378(1) of Cr. P.C. against the order dated
13.07.2016 whereby the accused have been acquitted from the offence
under Section 354, 354A, 354D, 323, 506 of IPC.
2) Heard the submissions made on behalf of the State.
3) In the application for condonation of delay, the ground taken is
that after the passing of impugned judgment, the matter was sent to the
various authorities and after passing through various channels the file
of the case alongwith opinion was sent to Department of Law, Justice
and Legal Affairs. The APP of the trial court gave opinion dated
16.08.2016 that the case was not fit for appeal, to which the Chief
Prosecutor (West) has also endorsed followed by the endorsement
dated 19.08.2016 of the Directorate of Prosecution. However, after
examining the matter in detail, it was considered by the office of the
Hon'ble Lt. Governor to file an appeal in the matter. Accordingly
proforma for appeal was attached on 02.02.2017 and forwarded to the
Directorate of Prosecution and then to the office of the Standing
Counsel, Delhi high Court on 07.02.2017. certain documents got
translated and due to other personal difficulties of the Public
Prosecutor including medical treatment of family member in the
month of March, change in roster in the month of April the appeal
could not be drafted on time. The ground taken causing delay was that
there was procedural delay which was beyond the control of the State.
4) Apparently, there is delay of 195 days in filing the instant
appeal. The aforesaid submissions made by the learned APP for the
State is that the matter took time to take approval from various
authorities and due to change in opinion with regard to filing the
appeal against the impugned judgment by the authorities, which
caused the delay in filing the appeal.
5) While dealing with the application on behalf of the State for
condonation of delay, this court deems it fit to scrutinise the impugned
judgment to find out the merit in the appeal preferred by the State.
6) On perusal of the impugned judgment/order dated 13.07.2016,
this court observes that the learned Additional Sessions Judge in para
38 of the judgment recorded that in the cross examination of the
prosecutrix conducted by learned defence counsel on 10.11.2015 she
had admitted that due to meetings between her and accused Jai
Parkash, physical relations were made with her consent. She has also
admitted in her cross-examination that she did not raise any alarm or
shout for help in November 2012 and on 03.01.2013 when accused Jai
Parkash had allegedly beaten her or threatened to defame her. She had
also admitted that even in February 2013, when accused Jai Parkash
had raped her, she had not shouted for help. This itself shows that
there was consent between the parties for having physical relationship.
She has also admitted in cross-examination that co-accused Rajan,
Sagar and Sajan have never beaten her or have threatened her. More
so, the prosecution has not examined the mother of the prosecutrix,
who had witnessed the incident of 28.03.2013. Consequently, the
learned Additional Sessions Judge has observed that from the
testimony of all the prosecution witnesses taken together, no such
offence is proved beyond reasonable doubt against the accused. Even
the incident dated 02.04.2013 does not prove that accused had any
intention of sexual harassment i.e. physical contact and advances
involving unwelcome and explicit sexual overtures or demand or
request for sexual favour, repeatedly despite a clear indication of
disinterest by prosecutrix, which could fall within the purview of
Section 354A and 354D. Ultimately the learned Additional Sessions
Judge has acquitted the respondents from the offence with which they
were charged.
7) In view of the above facts, this court does not find any illegality
or infirmity in the judgment passed by learned Additional Sessions
Judge and finds no merit in the appeal.
8) Now coming to the application for condonation of delay, it has
been seen in various cases that the State does not prefer appeal within
the stipulated time and takes defence of tedious procedural delay in
obtaining approval. The State does not have the right to file the
appeals at belated stage seeking ground that of a procedural delay.
The State is expected to expedite the matter in case they want to prefer
against the order/judgment of acquittal or conviction. In the
considered view of the Court, no proper explanation has been given by
the State which caused the delay in filing the instant appeal.
9) The legislature was wise enough while enacting Section 378
Cr.P.C. by giving six months time to the State to prefer an appeal
against the judgment of conviction or acquittal, as the case may be.
The procedural delay as claimed by the prosecution cannot be a
ground to condone the delay. The State is expected to file the appeal
well within the time prescribed in the statute. If any delay is caused,
the person responsible for the same is to be enquired and
departmental action is required to be taken against him. Only in
exceptional circumstances, the delay, if any, caused by the State in
filing the appeal is to be condoned, that too by explaining the delay of
each and every day supported by documentary evidence.
10) In view of the above mentioned facts and circumstances, this
Court is of the considered opinion that the prosecution has failed to
make out any ground for leave to file the appeal against the acquittal
of the accused/respondent and the same is dismissed being barred by
limitation.
11) Application is accordingly dismissed.
12) As a result, leave petition bearing Crl.L.P. No.323/2017 is also
dismissed being barred by limitation.
P.S.TEJI, J
MAY 24, 2017
pkb
