Gujarat High Court
Subhashbhai Ghundarabhai Nayaka vs State Of Gujarat on 15 September, 2022
Bench: A. P. Thaker
R/CR.MA/16898/2022 ORDER DATED: 15/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16898 of 2022
In
R/CRIMINAL APPEAL NO. 1814 of 2022
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SUBHASHBHAI GHUNDARABHAI NAYAKA
Versus
STATE OF GUJARAT
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Appearance:
MS KIRAN D PANDEY(3337) for the Applicant(s) No. 1
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE DR. JUSTICE A. P. THAKER
Date : 15/09/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. Rule. Learned APP, Mr.Hardik Soni, waives service of rule
on behalf of the respondent-State.
2. This application is filed under Section 5 of the Limitation
Act for condonation of delay of 1596 days in preferring
Criminal Appeal.
3. Heard learned advocate for the applicant. She has
referred to the averments made in the memo of the application
and submitted that the applicant is in jail since 2013 and
concerned trial Court has passed judgment and order of
conviction on 22.1.2016. It is further submitted that papers
were received by the Legal Services Committee and the
original copy of the judgment was called for. The matter was
R/CR.MA/16898/2022 ORDER DATED: 15/09/2022
allotted to learned advocate on 29.10.2021. It is submitted
that the applicant is very poor and there is no one in the
family, who could collect the papers and judgment and order of
conviction passed by the trial Court. It is further submitted that
there is no inaction on the part of the applicant in preferring
Criminal Appeal and the applicant is having strong case on
merits. Learned advocate, therefore, urged that this
application be allowed and the appeal filed by the applicant be
heard on merits.
4. Learned advocate for the applicant has placed reliance
upon the decision rendered by Honourable Supreme Court in
the case of State of Odisha v. Surendra Munda reported in
(2020) 16 SCC 443.
5. On the other hand, learned APP has opposed this
application and submitted that the applicant has not properly
explained delay caused in preferring appeal and, therefore,
this application may not be entertained.
6. We have considered the submissions advanced by
learned advocates appearing for the parties. We have also
perused the averments made in this application. In the case of
Surendra Munda (supra), the Honourable Supreme Court has
observed in paragraphs 3, 4 and 5 as under:-
"3. The original appellant before this Court was
convicted for the offence punishable under Section
302 IPC and was sentenced to suffer life imprisonment.
The appeal preferred by him was dismissed by the High
Court on the ground of delay of 1192 days in preferring
R/CR.MA/16898/2022 ORDER DATED: 15/09/2022
the appeal. The matter was thus not considered on
merits. That order was set aside by this Court and the
Signature Not Verified matter was remitted to the High
Court to consider the appeal on merits.
4. In a criminal matter, where the life and liberty of a
person is in question, one's right of appeal has always
been accepted and appropriate steps must be taken to
effectuate that right. The considerations on account of
delay and limitation ought not to negate the right of
appeal inhering in an accused.
5. In the circumstances, the order passed by the High
Court was set aside and the matter was remitted. In the
present Review Petition, the ground taken is as under:-
"4. That the State-petitioner believes that the view
taken by this Hon'ble Court in the impugned
judgment will have far reaching consequences on
the outcome of other cases, and thus petitioner
intends to review of the order passed by this
Hon'ble Court."
7. Keeping in mind aforesaid decision, if the submissions
canvassed by learned advocate for the applicant and the
averments made in this application are considered, this Court
is of the view that the appeal filed by the applicant is required
to be heard on its own merits, as the question of life and
liberty of a person is involved. The applicant is in jail since the
year 2013 and, therefore, he has not gained any benefit by
filing the appeal after period of limitation.
8. Looking to overall facts and circumstances of the case,
we are inclined to consider the case of the applicant. We are of
the view that the applicant has shown sufficient cause for not
R/CR.MA/16898/2022 ORDER DATED: 15/09/2022
filing the appeal within period of limitation. Hence, this
application is allowed and delay of 1596 days caused in
preferring the Criminal Appeal is condoned. Rule is made
absolute accordingly.
(VIPUL M. PANCHOLI, J)
(DR. A. P. THAKER, J)
R.S. MALEK
