State by Public Prosecutor vs Sivasamy and Others

K.M. Natarajan, J.—This petition is filed by the State to condone the delay of 155 days in filing the appeal against the acquittal of the accused in S.C. No. 127 of 1986 on the file of the Principal Sessions Judge, Tiruchirapalli.

The Joint Secretary to Government, Home Department, Madras, who filed the affidavit in support of the petition, averred in para 2 as follows:

The judgment of the lower court was delivered on 4.2.1987 and the last dale for filing appeal against acquittal was on 5.5.1987. The proposal from the Collector of Tiruchy was received by the Government on 24.8.1987. The opinion of the public prosecutor was called for on 27.8.1987 and the letter of the Government was received in the Public Prosecutor''s office on 31.8.1987. The opinion of the Public Prosecutor High Court, was received by the Government on 15.9.1987. The file was sent to the Law Department with a draft after sanctioning the filing of an appeal on 23.9.1987. The file was received back from the Law Department on 30.9.1987. The Government issued orders in G.O.Ms. No. 2334, Home, dated 6.10.1987. The Government order was received by the Public Prosecutor on 5.10.1987and the Public Prosecutor filed appeal in the High Court on 8.10.1987. Thus there is delay in filing

In the counter-affidavit filed by the Respondents it is stated that the date of the judgment is 4.2.1987, while the appeal against acquittal was filed on 8.10.1987 though the period for filing appeal against acquittal expired on 5.5.1987. It is stated that even as per the affidavit, the proposal from the Collector of Tiruchy was received by the Government only on 24.8.1987 after the expiry of the period of limitation and the prosecution has not given any reason for the delay in sending the proposal to the Government. It is further stated that the event or circumstance justifying the sufficient cause should be one arising before the expiry of the period of limitation and the one which arose after the expiry of the period cannot amount to sufficient cause. In the present case there is no such cause at all. It is further stated that the reason for the delay is purely on account of administrative set up, and the same cannot be a reason to condone the delay as held by several decisions of this Court. Lastly it is stated that it has been repeatedly held by this Court that limitation is a valuable right that would accrue to a successful party in a litigation and more so to an accused in a criminal case who has been acquitted and that it is settled law that each day''s delay has to be properly explained. The non-explanation of the inordinate delay in this case is by itself sufficient to reject the application.

There upon an additional affidavit was filed on behalf of the Petitioner, wherein it is stated that the judgment of the trial court was passed on 4.2.1987. The trial court Public Prosecutor sent his opinion which was received by the District Magistrate, Tiruchirapalli on 24.6.1987. The scrutiny of the judgment and other records of the case and discussion with the trial court Public Prosecutor were completed, and note was put up to the District Magistrate and Collector, Tiruchirapalli on 11.7.1987. Draft grounds and proposal were prepared on 13.8.1987 and the same was despatched to the Government on 21.8.1987. Hence, there is a delay of 155 days on the part of the District Magistrate and Collector, Tiruchirapalli in filing the appeal. The said delay is only due to administrative reasons and that it is neither wilful nor wanton.

Admittedly the judgment which is sought to be appealed was delivered on 4.2.1987 and the last date for filing the appeal against the acquittal was 5.5.1987. As per the first affidavit filed by the Joint Secretary to Government, the proposal from the Collector of Tiruchirapalli was received by the Government for the first time on 24.8.1987. There upon it was processed and the appeal was filed on 8.10.1987. In the additional affidavit filed by the Deputy Secretary, it is stated that though the judgment of the trial court was passed on 4.2.1987, the District Magistrate, Tiruchirapalli, received the opinion of the trial court Public Prosecutor on 24.6.1987 long after the expiry of the period of limitation. It is further stated that the delay of 155 days has occurred on the part of the District Magistrate and Collector, Tiruchirapalli, in filing the appeal before this Court. On a perusal of both the affidavits, it is clear that the delay for not filing the appeal within the statutory period has not at all been explained. It is stated in the original affidavit filed by the Joint Secretary that the Government received the proposal from the Collector on 24.8.1987, that is, about 3 months and 19 days after the expiry of the period of limitation. Though it is staled that the delay of 155 days has occurred on the part of the District Magistrate and Collector, Tiruchirapalli, he has not filed any affidavit and the reason for the delay has not been explained by him. It has been stated in both the affidavits that the reason for the delay was purely on account of administrative set up. In this connection the learned Counsel for the Petitioner drew the attention of this Court to the order in Crl. M.P. No. 6316 of 1985 dated 24.11.1987 (State by Public Prosecutor v. K. Subramaniam and Ors.) wherein a Division Bench of this Court dismissed the Petitioner for condoning the delay of 37 days in filing an appeal, holding that:

The accused have been acquitted of the charge of murder and they have gained a valuable right by lapse of time and this right cannot be taken away by mere averment that the delay is due to administrative set up. The Government have been given an extended period of limitation and it they are not prepared to avail of that and want to seek a further time, it must be satisfactorily established that they have been prevented by sufficient cause in preferring the appeal in time. That requirement has not been as established in this case. We do not therefore think that this is a fit case for condoning the delay.

The Division Bench dismissed the petition. In Crl. M.P. No. 4655 of 1977 (State by Public Prosecutor v. Chinnappan and Ors.) there was a delay of 101 days in filing appeal against acquittal. There also it has been stated that the delay is due to administrative reasons. A Division Bench of this Court dismissed the petition holding that the reason given by the Petitioner is not at all sufficient to excuse the inordinate delay in filing appeal against acquittal. In yet another case, in Crl. M.P. No. 4636 of 1987 (State represented by the Public Prosecutor, Madras v. Pichai Kannu and Ors.) there was a delay of 109 days in filing appeal. A Division Bench of this Court held.

Last date for filing the appeal before the Court is on 23.6.1986. The proposal from the Collector of Thanjavur was received after the period of limitation is over i.e. on 24.9.1986. Each day delay in filing the appeal has not been explained. Hence, the petition is dismissed.

In Ajit Singh Thakur Singh v. State of Gujarat 1981 L.W. (Crl.) 282 (S.C.) their Lordship of the Supreme Court held:

Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But, when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of same event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstances arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation the present case, there was no such cause, and the High Court erred in condoning the delay.

Applying the ratio laid down in the above quoted decision to the facts of the case, it is seen that there is no explanation whatsoever for the delay in not filing the appeal within the period of limitation, and in regard to the subsequent delay after the expiry of the period of limitation, it is only stated that it was administrative delay without giving any reason except stating the various dates when the file moved from the concerned authorities. The Petitioner has miserably failed to explain the inordinate delay of 155 days. Though there is an averment that there is delay of 155 days on the part of the District Magistrate and Collector, Tiruchirapalli, in filing the appeal, it has not been explained as to how the delay has occurred. As rightly pointed out in the counter, limitation is valuable right that would accrue to a successful party in a litigation and more so to an accused in a criminal case who has been acquitted. For all these reasons, we have no hesitation in holding that the Petitioner has miserably failed to explain the delay satisfactorily and as such the petition deserves to be dismissed.

In the result, the petition fails and stands dismissed.