Delhi High Court
The Govt. Of Nct Of Delhi vs Malay Kumar Ghosal & Ors. on 10 October, 2017
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 10 th October, 2017
+ CRL.L.P. 658/2016 and Crl.M.A.19585/2016
THE GOVT. OF NCT OF DELHI ..... Petitioner
Through: Ms.Radhika Kolluru, APP for State.
WSI Anita, PS Paschim Vihar.
versus
MALAY KUMAR GHOSAL & ORS. ..... Respondents
Through: Ms.Nandini Sen, Adv. for
Respondents no.1, 2 and 3.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J. (ORAL)
Crl.M.A.19585/2016 (delay)
1. This is an application filed by the petitioner seeking condonation of
130 days delay in filing this petition.
2. At the outset, we may notice that vide order dated 30.03.2017,
limited notice to show cause was issued to the respondents as far as it
relates to the charge under Section 498A IPC.
3. Learned counsel for the petitioner has drawn the attention of this
Court to paragraphs 3 to 8 of the application wherein reasons for the delay
have been explained. It is submitted by the counsel for the State that the
judgment was delivered by the trial court on 26.04.2016. Thereafter the
Additional Public Prosecutor (APP) obtained a certified copy of the order
and forwarded the same along with his opinion on 26.05.2016 to Law
Department. Since the file was incomplete, the Law Department returned
the file to APP with a request to send a complete file. After receipt of the
complete file and after the opinion was formed, the file was forwarded to
the Department of Law, Justice and Legislative Affairs on 02.06.2016 for
seeking opinion and necessary permission from the Lt. Governor of Delhi.
After the necessary permission was obtained from the Lt. Governor of
Delhi, the file was forward to the Director of Prosecution, Delhi High
Court, which was received in the office of Director of Prosecution on
13.7.2016 for filing an appeal in the matter. In the last week of September,
2016, the APP was requested to prepare the appeal and file the same in the
Court. The then APP prepared the appeal on 20.12.2016 and sent to the
concerned department for perusal and approval. The approved appeal was
received on 04.12.2016, which resulted in delay of 130 days. It is
contended by learned counsel for the petitioner that the delay was not on
account of any negligence or inaction, but on account of technical reasons,
which were beyond the control of the petitioner. It is further contended that
the Courts have taken a liberal view while dealing with applications
seeking condonation of delay. It is, thus, prayed that the delay be
condoned.
4. The present application is strongly opposed by learned counsel for
the respondents. It is contended by the counsel for the respondents that the
application does not disclose cogent grounds for condonation of delay.
Learned counsel contends that the delay has not been satisfactorily
explained. There are large gaps in the movement of the file which has not
been explained and which would show that the petitioner was highly
negligent and, thus, the delay should not be condoned as a valuable right
has accrued in favour of the respondents. Counsel relies on a decision
rendered by this Court in Crl.L.P.566/2016 titled as State vs. Tammane
delivered on 07.09.2017. Reliance is placed on paragraphs 6 to 9, which are
reproduced below:
"6. Article 114 of the Schedule to the Limitation Act, 1963
provides that an appeal from an order of acquittal by the State
will have to be filed within a period of ninety days from the
date of the order appealed from. While inserting the provision
the Legislature, of course, had the internal administration of
the State in mind. We may also notice that previously the
limitation period was 6 months, which was consciously
decreased to 3 months. The Law Commission of India in its 3 rd
Report, on which the Limitation Act, 1963 was based and
introduced in Parliament, had observed that even this period is
too long. The relevant portion reads as under:
"166. Article 157 provided a period of 6 months
limitation for an appeal against an order of acquittal. The
recent Act amending the Criminal Procedure Code has
substituted a period of 3 months for 6 months. We do not
propose any alteration of that period though we think that
even the present period is too long to enable the State to
make up its mind to file or not to file an appeal against an
order of acquittal. ..."
(Emphasis Supplied)
7. We may also notice the following observations of the
Apex Court in Postmaster General v. Living Media India Ltd.,
(2012) 3 SCC 563:
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 the 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."
(Emphasis Supplied)
8. The same rationale was extended to petitions seeking
leave to appeal by a coordinate bench of this Court, of which
one of us (G.S. Sistani, J.) was a member, in State v. Harihar,
2016 SCC OnLine Del 2354: (2016) 230 DLT (CN A) 12 (DB)
(paragraphs 5-9) while dismissing a petition on the ground of
delay as the reasons were mechanical and stereotyped.
9. The Courts must also remember that the very purpose of
the law of limitation is exemplified in such appeals. Simply put,
the statute of limitation is a statute of repose, peace and justice.
It enables the sword of Damocles to be put to rest. The
respondent in such appeals has already faced the cumbrances
of trial and been exonerated. The presumption of innocence
has been strengthened. His mind is put to rest by the expiry of
the period. Can the State be then allowed to wake up from its
slumber one day and file an appeal? We think not. Unless the
State is able to satisfactorily able to explain the delay, it would
not be proper for the Court to condone it."
5. Learned counsel submits that the present case is fully covered by the
decision rendered by this Court in Tammane (supra). It is, thus, prayed that
the application be dismissed.
6. We have heard learned counsel for the parties and also considered
their submissions and examined the grounds set out in paragraphs 3 to 8 of
the application.
7. Having regard to the submissions made and taking into consideration
the grounds raised in the application seeking condonation of delay in filing
the present petition by the applicant, we find force in the submissions made
by counsel for respondents that the delay has not been satisfactorily
explained. As per the grounds seeking condonation of delay after the
judgment was passed on 26.04.2016 the file was in transit from one desk to
another till it reached the office of the Additional Public Prosecutor in the
month of September, 2016. The application is silent as to why there was
delay in filing the leave petition appeal between September, 2016 to
08.12.2016 when the appeal was filed. There is not even a whisper with
regard to the reasons for the delay in filing the leave to appeal post-
September, 2016. Resultantly, we find no grounds to condone the delay.
8. The application is accordingly dismissed.
CRL.L.P. 658/2016
9. In view of the order passed in Crl.M.A.19585/2016, the leave to
appeal petition stands dismissed.
G.S.SISTANI, J
CHANDER SHEKHAR, J
OCTOBER 10, 2017
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