Prakash vs State

A.S. Pachhapure, J.—Though the matter is posted for admission, with consent of the learned Counsel for the petitioner and the learned Government Pleader, taken up for final hearing.

The petitioner heroin was charge sheeted for the offence punishable under Sections 279, 337, 338 and 304-A IPC and was convicted and ordered to undergo simple imprisonment on various counts and to pay the fins.

Aggrieved by the conviction and sentence, the petitioner preferred an appeal and there was a delay of 88 days in filing the appeal. Hence, the petitioner filed an application for condonation of delay u/s 5 of the Limitation Act accompanied by an affidavit of the petitioner, wherein he stated that after the Order of conviction was pronounced, he has deposited the fine amount and in fact he was not aware that he could prefer an appeal. Later, he has filed an appeal and as there was 88 days delay in filing the appeal, he filed an application and sought for condonation of delay and sworn to an affidavit of the facts. The respondent filed objection to the said application.

The learned Presiding Officer of the Fast Track Court heard on the application filed for condonation of delay and by the impugned Order, has rejected the application and consequently, dismissed the appeal filed by the petitioner. Aggrieved by the said Order, the petitioner filed this revision along with Misc. Crl. No. 1256/2010 for suspension of sentence and bail.

I have heard the learned Counsel for the petitioner end also the learned Government Pleader.

The points that arise for my consideration are;

1) Whether the petitioner has made out sufficient cause to condone the delay in filing the appeal before the lower appellate Court?

2) Whether the Order impugned deserves to be set aside?

It is the contention of the learned Counsel for the petitioner that though the petitioner deposited the fine amount, he was ignorant of the procedure of filing an appeal initially and it is in such circumstances there was a delay of about 88 days in filing the appeal. Though objections have been filed by the respondent, there is no counter affidavit.

It is well established principle of law that when an affidavit is sworn to the facts putting forth sufficient cause, it is necessary for the parties to file counter affidavit to controvert the contents of the affidavit. This aspect of the matter has not been looked into by the lower appellate Court. Apart from this, it is necessary to note that advancement of the substantial justice is the main motto of the Courts and if there is some delay, the approach to condone the delay has to be liberal and the trial Court erred in calling upon the petitioner to explain every days delay. Taking into consideration the cause put-forth and the fact that there was no counter affidavit filed by the other side, I am of the opinion that the trial Court has committed an error in rejecting the application and not accepting the cause made out to condone the delay. In that view of the matter, 1 am of the opinion that it is a fit case wherein the delay has to be condoned and the matter has to be heard on merits. Thereby, this revision petition deserves to be allowed on payment of costs. Hence I answer the points in affirmative and proceed to pass the following:

ORDER

The revision petition is allowed and the impugned Order is set aside on condition that the petitioner shall pay a cost of Rs. 3,000-00 before the Court below within 4 weeks from the date of Obtaining the certified copy of this Order. The said amount shall be credited to the State.

The lower appellate Court is directed to dispose of the appeal on merits and in accordance with law.

In view of disposal of the main matter on merits, Misc. Crl. No. 1256/2010 filed for suspension of sentence does not survive for consideration and the same is rejected.