THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 20th October, 2023
------------------------------------------------------------------------------------------------------
DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
------------------------------------------------------------------------------------------------------
I.A. No.01 of 2023 in Crl. A./19/2023/(Filing No.)
Petitioner : State of Sikkim
versus
Respondent : Ganesh Dhakal
Application under Section 5 of the Limitation Act, 1963
-----------------------------------------------------------------------------------------
Appearance
Mr. S. K. Chettri, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the Petitioner.
Mr. Rahul Rathi, Advocate for the Respondent.
-----------------------------------------------------------------------------------------
ORDER
Meenakshi Madan Rai, J.
1. A delay of 578 days has occurred on the part of the
Prosecution in filing the Appeal under Section 377(1)(b) and (3) of
the Code of Criminal Procedure, 1973. The instant I.A. has been
filed seeking condonation of such delay.
2. Learned Additional Public Prosecutor submits that the
Appeal assails the Judgment dated 26-08-2021 and Order on
Sentence dated 31-08-2021, as the Respondent was a government
employee and convicted for the offence of rape under Section
376(1) of the Indian Penal Code, 1860, when he ought to have
been convicted and sentenced as per the provisions of Section
376(2)(b) and (c) of said Code. Advancing grounds for the delay,
Learned Additional Public Prosecutor submitted that sixty days
thereafter would be afforded to the Prosecution to file the Appeal
post the pronouncement of the Order on Sentence. Meanwhile, on
16-11-2021, the Respondent filed an Appeal assailing the I.A. No.01 of 2023 in Crl. A./19/2023(Filing No.) 2 State of Sikkim vs.
Ganesh Dhakal
aforementioned Judgment before this Court. When the said matter
was being heard on 10-04-2023 by this Court, it came to the notice
of the Petitioner/Appellant herein, that, the Respondent was a
government employee and was posted in the Indian Reserve
Battalion, at Yangang, Namchi District and by virtue of his
employment he ought to have been convicted under the above
provisions as already agitated. Hence, on 12-04-2023, the
Learned Additional Public Prosecutor forwarded a letter to the
Director General of Police intimating him that in Crl. A. No.14 of
2021 (Ganesh Dhakal vs. State of Sikkim) pending before this High
Court the Additional Public Prosecutor had sought some time to
take steps in the matter for enhancement of sentence. On 13-04-
2023, the Legal Officer of the Police Headquarter was also of the
opinion that Appeal could be preferred. On 06-05-2023, the
Deputy Inspector General of Police was of the same opinion. On
11-05-2023 the File was forwarded to the office of the Advocate
General for necessary opinion. On 17-05-2023, the Additional
Advocate General also opined that an Appeal could be preferred
and the File was thus processed on the same day for obtaining
government approval. On 19-05-2023 the approval of the
government was obtained and the File forwarded to the office of
the Advocate General on 23-05-2023. Thereafter, the Appeal was
filed before this Court on 26-05-2023 by which date a delay of 578
days had ensued. That, in view of the issue involved as argued,
the delay being bona fide may be condoned as it was unintentional
and the grounds put forth sufficiently explain the delay.
3. Learned Counsel for the Respondent objecting to the
prayer for condonation of delay submitted that no indulgence I.A. No.01 of 2023 in Crl. A./19/2023(Filing No.) 3 State of Sikkim vs.
Ganesh Dhakal
should be afforded to the Petitioner/Appellant for the delay caused
as it would seriously prejudice the Respondent. That, the issue of
the government employment of the Respondent was evident during
the trial before the Court of Learned Judge, Fast Track, South and
West, at Gyalshing, however, the Prosecution during the entire trial
failed to take any steps in this context or draw the attention of the
Learned Trial Court to the issue and hence it cannot be raised now
belatedly to the disadvantage of the Respondent. Besides the
Prosecution has failed to explain the delay on a day to day basis
and has put forth only excuses, which thereby deserve no
consideration and the Petition ought to be dismissed outright.
4. We have given due consideration to the submissions
put forth.
5. At the outset, it is relevant to remark that the
Prosecution has almost always delayed in filing Appeals and
thereby inconvenienced not only the Court but also prejudiced the
Respondent in the matter.
6. Be that as it may, having considered the grounds put
forth for the delay, it becomes imperative for this Court to opine
out that there appears to be gross negligence on the part of the
Prosecution for having failed to notice at the trial stage the error
committed which thus had a percolating effect and has led to the
instant Petition being filed. However, while considering the
broader ends of justice, we refer to the decision of the Hon'ble
Supreme Court in Sheo Raj Singh (Deceased) through Lrs. and Others 1 vs. Union of India and Another , wherein it was inter alia held as
follows;
1
2023 SCC OnLine SC 1278 I.A. No.01 of 2023 in Crl. A./19/2023(Filing No.) 4 State of Sikkim vs.
Ganesh Dhakal
"37. Having bestowed serious consideration to the rival contentions, we feel that the High Court's decision to condone the delay on account of the first respondent's inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests.
CONCLUSION
38. For the foregoing reasons and the special circumstances obtaining here that the impugned order reasonably condones the delay caused in presenting the appeal by the first respondent before the High Court, the present appeal is, accordingly, dismissed. Pending applications, if any, also stand disposed of."
7. Consequently, on the ground that a serious question of
law is to considered and should delay not be condoned, travesty of
justice would ensue, we are inclined to and do condone the delay,
subject to payment of costs of ₹ 30,000/-(Rupees thirty thousand)
only, by the Prosecution to be deposited with the Sikkim State
Legal Services Authority, for use in the One Stop Centre, at
Lumsey, Gangtok. The deposit shall be made within ten days from
today failing which the costs shall be enhanced.
8. I.A. No.01 of 2023 stands disposed of accordingly.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
20-10-2023 20-10-2023
sdl
