State of Karnataka vs Smt. N.M. Bhageerathi

H. Billappa, J.—I.A. 1/13 has been filed by the appellant praying to condone the delay of 130 days in filing the appeal.

It is stated in the affidavit filed in support of the application that the certified copy of the judgment was obtained on 18.3.2013 by the Spl.PP who conducted the case and furnished his opinion to the Addl. Director General of Police, Karnataka Lokayukta who in turn sought opinion of the Chairman, Legal Cell, Karnataka Lokayukta. He opined that this is a fit case to prefer an appeal on 21.6.2013. It is stated, the Addl. Director General of Police through letter dated 3.7.2013 requested the Government to authorise the Spl.PP to file the appeal. The Government passed the order dated 26.7.2013 authorising the Spl.PP to prefer an appeal before this court. Thereafter, the Chairman, Legal Cell, Karnataka Lokayukta, issued authorisation dated 29.7.2013 to prefer an appeal. It was received by the Spl.PP on 31.7.2013. Thereafter, the Spl.PP perused the papers and sought for explanation for the delay. The deponent contacted the office of Spl.PP, Chamarajanagar. Office of Karnataka Lokayukta and Home Department and came to know that the Office of Chairman Legal Cell, Karnataka Lokayukta, was vacant from 4.9.2012 to 26.4.2013. It is stated, there was lot of pending work in the office of A.D.G.P and also Chairman''s office. The opinion to file the appeal was sent to the Government during 1st week July 2013 and authorisation to Spl.PP was sent on 29.7.13. Thereafter, the appeal is filed. Therefore, there is delay in filing the appeal and it may be condoned.

The respondent has filed objections to the application contending that the delay in filing the appeal is 159 days and not 130 days as claimed by the appellant. The application is liable to be dismissed on the ground of misrepresentation also. It is stated, the certified copy was obtained on 18.2.2013 it sell The appellant has not explained the reason from 18.2.2013 to 18.3.2013. The explanation offered is unacceptable. The cause shown is not sufficient to condone the delay. Therefore, the application may be rejected.

Thereafter, the appellant has filed better affidavit dated 3.2.2016. It is stated, the Spl.PP has sent opinion dated 23.2.2013. All opinions are accompanied by the certified copy of the judgments. On 19.6.2013, the file was referred to Chairman, Legal Cell, Karnataka Lokayukta, Bengaluru. By opinion dated 21.6.2013 it was recommended to prefer an appeal. The I Addl. Solicitor attached to the Government of Karnataka recommended filing of appeal by order dated 24.7.2013. The appeal was filed on 24.9.2013. There is no reference in the records to the certified copy obtained earlier to 23.2.2013. It is stated, another certified copy was obtained and appeal was filed. The delay is bona fide. Therefore, it may be condoned.

The learned counsel for the appellant contended that the delay is satisfactorily explained. The appeal is by State and the delay needs to be construed liberally. He also submitted that the respondent was convicted earlier. Subsequently, the matter was remanded. The trial court taking into consideration that DE proceedings are dropped has acquitted the respondent. Therefore, the matter requires consideration on merits and the delay may be condoned. He placed reliance on the decision of the Hon''ble Supreme Court reported in AIR 1997 SC page 1390.

As against this, the learned counsel for the respondent submitted that the delay is not satisfactorily explained. He also submitted that as provided under section 378(5) of Cr.RC. the application should have been filed within 60 days for leave of the court. The application is filed beyond 60 days. The certified copy was obtained on 18.2.2013 itself. There is no explanation from 18.2.2013 till 17.4.2013. The explanation for the subsequent period is of no consequence. Though in the judgment relied upon by the learned counsel for the appellant, the Hon''ble Supreme Court has held that the delay needs to be construed liberally, in the subsequent judgments reported in (2013)4 SCC page 52, (2012)3 SCC page 563, AIR 1981 SC page 733, the Hon''ble Supreme Court has held that the delay in filing the appeal or revision shall not be mechanically considered and in the absence of sufficient cause the delay shall not be condoned. Further, the event or circumstance arising after expiry of limitation cannot constitute sufficient cause. In the present case, there is no explanation for the relevant period either in the first affidavit or subsequent affidavit. Therefore, the delay is not properly explained. The application may be rejected.

I have carefully considered the submissions made by the learned counsel for the parties.

It is relevant to note, the appellant has preferred this appeal challenging the judgment and order dated 16.2.2013 passed by the District & Sessions Judge, Chamarajanagar, in Spl. Case No. 38/2011 acquitting the respondent-accused of the offences punishable under sections 7, 13(1) r/w section 13(2) of the Prevention of Corruption Act. It is stated, the certified copy was obtained on 18.3.2013 and opinion was furnished by the Spl.PP. In the subsequent affidavit dated 3.2.2016 it is stated that Spl.PP sent opinion dated 23.2.2013. Thereafter, on 19.6.2013 the file was referred to Chairman Legal Cell, Karnataka Lokayuktha, Bengaluru for opinion. By opinion dated 21.6.2013, it was recommended to prefer an appeal. Thereafter, the appeal was filed on 24.9.2013. It is clear, there is no explanation for the relevant period from February till June 2013. Section 378(5) of Cr.P.C. provides that no application under sub-section (4) for grant of special leave to file an appeal from an order of acquittal shall be entertained 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 order of acquittal. It is clear, the application for grant of leave should have been filed within 60 days. Either in the first affidavit or in the subsequent affidavit there is no satisfactory explanation for the delay. The explanation offered is unacceptable. No doubt, in AIR 1997 SC page 1390 relied upon by the learned counsel for the appellant, the Hon''ble Supreme Court has held that the delay needs to be construed liberally, but, in the subsequent decision reported in (2013)4 SCC page 52, the Hon''ble Supreme Court has held that the delay in filing the appeal or revision shall not be mechanically considered and in the absence of sufficient cause the delay shall be condoned.

In the present case, in the first affidavit no sufficient cause is shown. In the subsequent affidavit also there is no satisfactory explanation for the delay. It cannot be said that the cause shown is sufficient to condone the delay. No doubt, the delay needs to be construed liberally. At the same time, the right of the accused cannot be ignored. In the circumstances, in my considered view, the appellant has not shown sufficient cause to condone the delay and it cannot be condoned.

Accordingly, I.A. 1/2013 is hereby dismissed. Consequently, the appeal is also dismissed.