Karnataka High Court
The State Of Karnataka vs Sri B K Shivanna on 24 March, 2022
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.978/2019
BETWEEN
THE STATE OF KARNATAKA
THROUGH THE INSPECTOR OF POLICE
KARNATAKA LOKAYUKTA P.S.
MADIKERI
KODAGU DISTRICT - 571 201. ... APPELLANT
(BY SRI PRASAD B S, ADVOCATE)
AND
SRI B K SHIVANNA
S/O KARIYAIAH
AGED ABOUT 60 YEARS
BLOCK EDUCATION OFFICER
SRI VIGHNESHWARA GIRLS HIGH SCHOOL
SHANIVARASANTHE
SOMWARPET
R/O L.I.G. 17, HOUSING BOARD COLONY
HUNSUR
MYSURU DISTRICT - 571 105. ... RESPONDENT
(BY SRI S.G. BHAGAVAN, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) AND (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER DATED 06.10.2018,
PASSED BY THE PRINCIPAL SESSIONS JUDGE, KODAGU AT
MADIKERI IN SPL.CASE (CORRUPTION) NO.3/2012 ON HIS FILE
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 7,13(1)(d) READ WITH
SECTION 13(2) OF PREVENTION OF CORRUPTION ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON I.A.NO.1/2019 ON 17.03.2022
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER ON I.A.NO.1/2019
The learned counsel for the appellant filed this
interlocutory application under Section 5 of the Limitation Act for
condoning the delay of 130 days in filing this appeal. The
counsel also filed an affidavit in view of the delay in condoning
the delay in filing the appeal. One Sri.Subramanya, Police
Inspector, Karnataka Lokayuktha, Madikeri (now in Bengaluru)
filed an affidavit stating that the judgment delivered by the trial
court on 06.10.2018 under the Special Case (Corruption)
No.3/2012 by acquitting the respondent for the offence
punishable under Sections 7, 13(1)(d) read with Section 13 (2)
of Prevention of Corruption act, 1988. The certified copy of the
judgment was taken and from the date of receipt of the copy,
within 60 days appeal is required to be filed. Due to the delay in
getting the approval from the Head of the Department and the
Government Order delay was caused. The matter was entrusted
to the special prosecutor on 26.04.2019. Thereafter the appeal
came to be filed and there is no intentional or deliberate delay in
filing the appeal and it was only bonafide administrative reasons.
Hence prayed for allowing the application and condoning the
delay in filing the application.
2. The respondent filed objection contenting that 60 days
time to file the application for seeking leave of the Court, they
may be justified the reasons for condoning the delay. The
memorandum of facts filed by the advocate cannot be
acceptable and even under Section 3 of the Karnataka
Lokayuktha Act, the Police Officers are required to file the
affidavit. The judgment was delivered on 6.10.2018 there is
inordinate delay in filing the appeal. In fact there are 176 days
delay in filing the appeal and not 138 days, Hence prayed for
dismissal of petition. He also relied upon the judgment of this
court in similar case.
3. Having heard the arguments and perused the records,
especially the provisions of Section 378 (5) of Cr.P.C for grant of
special leave to appeal from an order of acquittal it shall not be
entertained by the High Court after expiry of 6 months where
the complainant is a public servant and 60 days in every other
case computed from the date of the order of acquittal. The
learned counsel for the appellant contended that the appeal is
filed within 6 months and therefore there is no delay in filing the
appeal. Which is objected by the respondent counsel.
The provisions of section 378 (5) of Cr.P.C read as under:
"Appeal in case of acquittal:
(5) No application under sub-section (4) for the grant of special
leave to appeal from an order of acquittal shall be entertained
by the High Court after the expiry of six months, where the
complainant is a public servant, and sixty days in every other
case, computed from the date of that order of acquittal."
4. On bear reading of the provisions it is clear that no
application for special leave shall be granted after expiry of 6
months of the judgment or order of acquittal shall be
entertained if the complainant is public servant and for others
two months is prescribed. The Hon'ble Supreme Court in the
case of Amalendu Kumar Bera and Ors Vs State of West
Bengal reported in 2013 (4) SCC 52 has categorically held if
there is no sufficient cause is made out the Court cannot
condone the delay. The co-ordinate bench of this Court in
Crl.A.No.948/2013 dated 30.5.2016 also taken similar view and
dismissed the interlocutory application for condoning the delay,
consequently appeal has been dismissed and the same was not
challenged by appellant-Lokayutha before Hon'ble Supreme
Court. On looking to the cause shown in the affidavit and stated
some administrative reasons the delay was caused, previously
the advocate filed memorandum of facts, subsequently it was
objected by the respondent counsel. Thereafter one
Subramayna police inspector filed affidavit. On calculation of
the delay, the judgment was delivered on 06.10.2018 the
certified copy of the judgment was received on 22.10.2018 but
appeal came to be filed on 29.05.2019 after 7 months of
delivering the judgment than the time prescribed by Section 378
(5) of Cr.P.C and it is mandatory provision that no appeal shall
be entertained after 6 months of the order of acquittal passed.
Therefore, I hold reason was not satisfactorily explained for
condoning the delay and therefore I.A.No.1/2019 cannot be
allowed for condoning the delay.
Accordingly the I..A.No.1/2019 is hereby dismissed.
Consequently, the appeal is also dismissed.
Sd/-
JUDGE
akv
