Pushpaben D/O Ravjibhai Makwana vs State Of Gujarat
2022 Latest Caselaw 4625 Guj

     R/CR.MA/1671/2022                                ORDER DATED: 04/05/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 1671 of 2022

                    In R/CRIMINAL APPEAL NO. 165 of 2022

                                       With
                         R/CRIMINAL APPEAL NO. 165 of 2022
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                    PUSHPABEN D/O RAVJIBHAI MAKWANA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MS SHUBHA B TRIPATHI(5597) for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 04/05/2022

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)

1. By way of present application under Section 5 of the Limitation Act, the applicant-Original Complainant seeks to condone the delay of 426 days caused in preferring the captioned appeal under Section 372 of the Code of Criminal Procedure, challenging the judgment and order of acquittal passed in Sessions Case No.49 of 2015 on 10.08.2018 passed by the learned Sessions Judge, Morbi for the offences punishable under Sections 376, 323, 504 and 506(2) of the Indian Penal Code.

2. Since the Court was not satisfied with the causes and reasons for the delay caused in preferring the appeal, learned advocate for the applicant was directed to file affidavit with better particulars as

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per order dated 25.02.2022. Pursuant to the said order, further affidavit on behalf of the original complainant has been placed on record to explain the huge delay of 426 days. On combine reading of the averments made in the application and the further affidavit filed by the applicant - original complainant, it is quite evident that the judgment and order of acquittal was passed on 10.08.2018 and certified copy thereof was applied on 13.08.2018 and certified copy was ready for delivery on 04.09.2018 and actually it was obtained by the original complainant on 04.09.2018. Thus, the original complainant was required to prefer an appeal on or before 01.11.2018; however the appeal came to be filed on 01.01.2020.

3. Learned advocate for the original complainant has explained the delay of 426 days which occurred on account of various reasons and incident took place in the year 2015, more particularly, paragraphs 1 and 2, which read thus:

"1.That the applicant is original complainant submits that she has no knowledge of law and legal right and she is not much educated so she not knowing what to do after she received the judgment.

2. She further submitted that she had son aged 4 year at the time when she filed appeal before this Hon'ble High Court. She further submitted that she had responsibilities of minor son as she is not much educated she is doing labour work and earn bread for his minor son. She further submits that one of social worker inform her about his right and inform her that she challenges judgment before the Hon'ble high Court but she having financial problem because of that reason she not able to arrange private lawyer for this matter. After some time she come to know about the legal aid services and then she decides to approach before the Legal aid services and sub its all papers

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to them. She further submits that earlier she submits xerox copy of judgment and later she submits certified copy and hence time been spent in the process because of circumstances beyond the control of the applicant and the applicant prays that the delay in filing the present appeal may be kindly be condoned."

4. We have heard Ms. Shubha B. Tripathi, learned advocate appearing for the applicant-original complainant.

5. The words 'sufficient cause for not making the application within the period of limitation' should be applied in a reasonable and liberal manner depending upon the facts and circumstances of the case and type of the case. The word 'sufficient cause' in Section 5 of the Limitation Act needs a liberal construction so as to advance substantial justice when the delay is not on account of any dilatory tactics, want of bonafides or deliberate inaction on the part of the applicant. In nutshell, the decisive factor for condonation of delay is not the length of delay but sufficiency and satisfactory explanation.

6. The liberal construction of expression 'sufficient cause' is indicated to advance substantial justice which itself presupposes no negligence and/or no inaction on the part of the applicant. The expression sufficient cause implies the presence of legal and adequate reasons as may be necessary to answer the purpose intended. The sufficient cause should be such as it would be persuade the Court to treat the delay as an excusable one. The applicant invoking discretionary powers of Court under Section 5 of the Limitation Act should show that besides acting bona fide, it had taken all possible steps within its power and control to approach the Court without any unnecessary delay. In other words, in order to give liberal construction to the expression 'sufficient cause', it must

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squarely fall within the concept of reasonable time and proper conduct of the party concerned. Needless to say that the law of Limitation is a substantive law and has definite consequences on the right and obligation of the party to arise. Once a valuable right has accrued in favour of one party, as a result of the failure of the other party to explain the delay by showing sufficient cause and on its own conduct, it will be unreasonable to take away such right on the mere asking of the applicant, particularly, when the delay is directly result of negligence, default or inaction of that party. The Court is required to give or impart justice to both the sides equally. In case, a party throughout remains negligent or careless in persuading the legal remedy/right then it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law.

7. Before the merits of the application is considered, it is also relevant to quote the observations made by the Hon'ble Apex Court in case of Ajit Singh Thakur Singh and another Vs. State of Gujarat [AIR 1981 SC 733], wherein it is observed that sufficient cause for the purpose of condonation of delay must be referable to period prior to expiry of limitation and any event or circumstance arising after the expiry of limitation cannot constitute such sufficient cause. The following observations are required to be quoted below for the purpose of disposal of the present application.

"Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising

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after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay."

8. Similarly, the observations made by the Hon'ble Apex Court in case of Ramlal and others Vs. Rewa Coalfields Ltd. [AIR 1962 SC 361(1)] is relevant for deciding present application and therefore, they are quoted hereinbelow.

"It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by s. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona

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fides or due diligence are always material and relevant when the Court is dealing with applications made under s. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of ss. 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of s. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under s. 5 without reference to s. 14."

9. Bearing in mind the averments made in the application and the principles laid down by the Hon'ble Apex Court in the afore-stated cases, it is specific case of the applicant that it has received the certified copy of the impugned judgment and order of acquittal on 04.09.2018. Thus, the applicant is well aware of such judgment and order passed by the learned Sessions Court. Accordingly, the applicant-State was required to file an appeal within 90 days prescribed period of limitation i.e. on or before 01.11.2018. Whereas, in the case on hand, the applicant chose not to explain as to why the authority allowed the limitation to expire; without showing sufficient cause that because of some event or circumstances arising before the limitation expired 01.11.2018, it was not possible for the applicant to file an appeal. Whatever causes / reasons shown by the applicant in the delay condonation application and in the further affidavit are the events / reasons / grounds arose after the expiry of limitation which does not constitute 'sufficient cause' so as to condone the delay. Whatever explanations / reasons furnished in the application and the further affidavit are not sufficient to construe that due to sufficient cause, the applicant could not approach the Court within prescribed period of limitation. In fact, this is an

R/CR.MA/1671/2022 ORDER DATED: 04/05/2022

application where no any explanation worth the name has been furnished as to why the applicant did not take any steps to file appeal during the period of limitation. Thus, the applicant has filed the present application in a very casual manner without showing any sufficient cause for not filing the appeal because of events arose before the limitation expired. For the sake of repetition, on combine reading of the explanation furnished in the application filed under Section 5 of the Limitation Act, explanation refers to the events took place in the year 2015 only.

10. In view of the above position and considering the principles settled in cases of Ajit Singh (supra) and Ramlal (supra), no case is made out to entertain the present application filed under section 5 of the Limitation Act and therefore, present application stands dismissed. Rule is discharged. Consequent upon the dismissal of delay condonation application, the captioned criminal appeal would not survive and stands disposed of accordingly.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) M.H. DAVE