Nilay @ Nilesh S/O Navinchandra ... vs State Of Gujarat
2022 Latest Caselaw 8265 Guj

   R/CR.MA/17267/2022                                ORDER DATED: 21/09/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL MISC.APPLICATION NO.              17267 of 2022

               In R/CRIMINAL APPEAL NO. 1851 of 2022

                            With
            R/CRIMINAL APPEAL NO. 1851 of 2022
                            With
  CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE)
                       NO. 1 of 2022
           In R/CRIMINAL APPEAL NO. 1851 of 2022
==========================================================
              NILAY @ NILESH S/O NAVINCHANDRA MAHETA
                              Versus
                         STATE OF GUJARAT
==========================================================
Appearance:
MS KIRAN D PANDEY(3337) for the Applicant(s) No. 1
MR HARDIK SONI, APP for the Respondent(s) No. 1
==========================================================

  CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
        and
        HONOURABLE DR. JUSTICE A. P. THAKER

                              Date : 21/09/2022

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

Order in Criminal Misc. Application No.17267 of 2022

This application is filed under Section 5 of the Limitation Act for condonation of delay of 557 days caused in preferring Criminal Appeal.

We have perused the averments made in this application and also considered the submissions canvassed by learned advocate for the applicant.

R/CR.MA/17267/2022 ORDER DATED: 21/09/2022

At this stage, we would like to refer to the judgment of the Hon'ble Supreme Court in case of State of Odisha Vs. Surendra Munda, reported in (2020) 16 SCC 443, wherein, the Hon'ble Supreme Court has observed in Paragraph Nos. 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 the appeal. The matter was thus not considered on merits. That order was set aside by this Court and the 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 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. 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.

     5.        We   do  not find  any            merit in   the
               submission so advanced.           We, therefore,





     R/CR.MA/17267/2022                                   ORDER DATED: 21/09/2022

dismiss this Review Petition and affirm the Order under review."

Thus, in the facts of the present case, we are inclined to consider the case of the present applicant. Accordingly, this application is allowed. Delay is condoned.

Order in Criminal Appeal No.1851 of 2022

Admit.

Learned APP waives service of notice of admission on behalf of the respondent - State.

Order in Criminal Misc. Application (For Suspension of Sentence) No.1 of 2022

Learned advocate for the applicant seeks permission to withdraw this application.

Permission as prayed for is granted. Application stands disposed of as withdrawn.

(VIPUL M. PANCHOLI, J)

(DR. A. P. THAKER, J) LAVKUMAR J JANI