Delhi High Court
State vs Tammane on 7 September, 2017
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 7th September, 2017
+ CRL.L.P. 566/2016
STATE ..... Appellant
Through : Ms.Radhika Kolluru, APP for the
State alongwith SI Ramesh Chand,
PS Nabi Karim
versus
TAMMANE ..... Respondent
Through : Mr.Rajat Srivastava, Advocate
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J. (ORAL)
Crl.M.A. 16575/2016 (Condonation of Delay)
1. This is an application filed by the petitioner/State seeking
condonation of 119 days' delay in filing the present leave petition.
This application is vehemently opposed by the learned counsel for
the respondent. It is contended that the delay is unexplained and it is
not on account of any bona fide reasons.
2. Learned counsel for the petitioner, however, submits that after the
order was pronounced on 29.02.2016, the complete file was prepared
and forwarded to APP Delhi for his opinion. Thereafter, the file was
forwarded to the Chief Prosecutor on 18.03.2016. Thereafter, vide
noting dated 29.03.2016 by the Principal Secretary (Law and Justice)
approved the file for filing and preparation of an appeal against the
order of acquittal. Thereafter, a decision was taken by the Lt.
Governor.
3. We have heard the learned counsel for the parties and considered the
submissions so made.
4. Paragraphs 2 to 4 of this application set out the reasons for the delay
in filing the present leave to appeal. The same are reproduced as
under:
"2. That after the pronouncement of order dated 29.02.2016,
the complete case file was prepared along with the impugned
judgment thereafter the file was forwarded to Ld. APP Delhi
for his opinion and the Ld. APP examined the matter in detail
and gave his opinion for filing an appeal against the said
judgment/order vide its file acquittal report dated
16.03.2016. That thereafter vide file noted 17.03.2016, the
office of Director of Prosecution concurred with the opinion
of Ld. APP and forwarded the file to the office of Chief
Prosecutor on 18.03.2016. That thereafter vide file noting
dated 29.03.2016, Principal Secretary(Law and Justice)
approved filing of the appeal against the order of acquittal.
3. That thereafter the Law & Justice Ministry, GNCT vide its
communication dated 25.05.2016 addressed to Director of
Prosecution, GNCT conveyed that the instant matter has been
considered by the Hon'ble Lt. Governor and decision is taken
to file an appeal against the aforesaid judgment and
therefore requested that further steps for filing appeal in this
case may be taken.
4. That thereafter the file was sent to Standing
Counsel(Criminal), GNCT for filing of appeal on 03.06.2016.
Then the case was marked to the undersigned counsel. It is
respectfully submitted that office of the Ld.APP took some
time to prepare and finalize the present petition after taking
necessary instructions from the department."
5. Perusal of aforesaid grounds would show that after the
pronouncement of order on 29.02.2016, the file was pushed from one
Branch to another and finally a noting was made for filing an appeal
by the Principal Secretary (Law and Justice) on 29.03.2016. Finally,
the consent was given by the Lt. Governor and a communication was
addressed by the Law and Justice Ministry, GNCT of Delhi on
25.05.2016 to the Director of Prosecution, GNCT conveying the said
decision. We are of the view that the file has moved in an extremely
casual manner without taking into consideration that the Legislature
in its wisdom had enacted a law known as Law of Limitation.
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, ofcourse, 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 3rd 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.
10. In the present case, the delay, in our view, has not been satisfactorily
explained. The attitude of the petitioner is highly casual in nature.
There is no explanation for the time taken from 29.03.2016 to
25.05.2016 and from 03.06.2016 to 06.10.2016, when the leave
petition was filed.
11. The application is accordingly dismissed.
12. We may also notice that we have carefully perused the grounds of
the leave petition on merits and find no infirmity or illegality or any
ground to interfere with the order passed by the Trial Court.
13. Accordingly, both the application and the leave to appeal are
dismissed.
G. S. SISTANI, J.
CHANDER SHEKHAR, J.
SEPTEMBER 07, 2017
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