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Judgment
Anil R. Dave, J.—This is an application for condonation of delay caused in filing Criminal Appeal No. 1732 of 2006.
We have heard learned APP Shri LR Poojari, appearing for the applicant-State and learned advocate Shri S.V. Parmar appearing for the opponents.
In filing Criminal Appeal No. 1732/06 delay of 1244 days had been caused and, therefore, the present application has been filed seeking condonation of the said delay. It has been submitted by the learned APP that against the judgment delivered by the learned Sessions Judge, Veraval, in Sessions Case No. 45/02, the applicant-State had filed Criminal Appeal No. 1732/06 on 13th September, 2006. It has been submitted by her that the delay caused in filing the said appeal was for certain unavoidable reasons.
It has been submitted by her that Criminal Revision Application No. 761/03 had been filed against Sessions Case No. 45/02. The said revision application had been notified for hearing before this Court (Coram: D.N. Patel, J.) on 18th August, 2006 and at that time the Hon''ble Court had inquired whether the State had filed any appeal against the aforesaid Sessions Case. As record of appeal was not available in the Office of the Public Prosecutor, an inquiry was made in the Legal Department to know whether an appeal had been filed, and if an appeal had not been filed, the Legal Dept. was requested to take final decision before 4th September, 2006 with regard to filing of an appeal or otherwise. The said fact is revealed in letter dated 31st August, 2006 addressed by the office of the Public prosecutor, Gujarat State, to the Secretary, Legal Dept., which is at Annexure-A to the affidavit-in-rejoinder filed by Shri Vaghela, Dy. Section Officer, Legal Dept.
In pursuance of the aforesaid letter, the Legal Dept. had taken decision to file an appeal on 31st August, 2006 and the said decision was communicated to the Office of the Public Prosecutor on 2nd September, 2006. Thereupon, the appeal came to be filed on 13th September, 2006.
In the aforesaid circumstances, the delay had been caused and, therefore, the learned APP has prayed that the delay be kindly condoned.
At the time of hearing of this application it was stated by the learned APP that for the first time the issue with regard to filing an appeal had arisen on 18th August, 2006 when Criminal Revision Application No. 761/03 was being heard by this Court (Coram: D.N. Patel, J.). It has been submitted that the concerned APP, who had conducted Sessions Case No. 45/02 in the trial court, had not forwarded his opinion to the Legal Dept. and, therefore, no decision with regard to filing an appeal or otherwise had been taken by the Legal Dept.
On the other hand, learned advocate Shri S.V. Parmar appearing for the opponents has submitted that there was lethargy and carelessness on the part of the applicant-State and no case has been made out by the applicant for condonation of the delay. The learned advocate had gathered certain information upon submitting an application under the provisions of Right to Information Act, 2005 and the information he had gathered has been placed on record by filing a further affidavit in the matter.
It has been specifically stated by the learned advocate appearing for the opponents that incorrect facts were placed before this Court by the applicant in the delay condonation application. Upon perusal of the application, according to him, one would feel that for the first time an inquiry was made at the instance of this Hon''ble Court as to whether an appeal had been filed against the judgment delivered in Sessions Case No. 45/02. According to the learned advocate appearing for the opponents, the aforesaid statement made in the application is incorrect.
The learned advocate appearing for the opponents has drawn our attention to copies of certain letters exchanged between the Legal Dept. and the office of the Public Prosecutor, which he had procured in pursuance of the application submitted under the provisions of RTI Act. He had drawn our attention to letter dated 15th September, 2006, addressed by the Under-Secretary to the Govt. of Gujarat, Legal Dept., to the Addl. Public Prosecutor, Veraval, making inquiry as to why a proposal for filing an appeal had not been sent by the Addlitional Public Prosecutor, Veraval, in spite of letter dated 7th July, 2006 written to him by the Legal Dept. A copy of the said letter has been annexed as part of Annexure-I to the further affidavit filed by opponent No. 1 on 26th April, 2007.
Thus, it is clear that on 7th July, 2006 the Legal Dept. had addressed some communication to the Addl. Public Prosecutor, Veraval. A copy of the said communication has been annexed as Annexure-B to the affidavit-in-rejoinder filed by Shri Vaghela, Dy. Section Officer, Legal Dept. By his letter dated 7th July, 2006, the Under-Secretary to the Govt. of Gujarat, Legal Dept. had requested the Addl. Public Prosecutor, Veraval, to send certified copy of the judgment delivered in Sessions Case No. 45/02 alongwith three typed copies of the said judgment. Opinion of the concerned Addl. Public Prosecutor with regard to filing of the appeal was also sought for.
The aforesaid facts with regard to communication prior to 18th August, 2006 have not been referred to in the application filed by the applicant-State. The said facts have been referred to in pleadings only after the affidavit-in-reply was filed by the opponents.
In the aforesaid circumstances, the learned advocate appearing for the opponents has submitted that the applicant did not reveal correct facts at the first instance and had tried to suppress certain relevant facts and mislead the court.
It has been further submitted by the learned advocate that in pursuance of judgment delivered by the Hon''ble Apex Court in the case of State of Gujarat Vs. Ratilal Laljibhai Tandol and Another, it was the duty and responsibility of the Public Prosecutor to forward a copy of the judgment and his opinion to the Law Department with regard to filing the appeal. In spite of the aforesaid judgment, the concerned Addl. Public Prosecutor did not bother to send his opinion to the Legal Dept. It has been submitted by him that by not acting as per direction given by the Hon''ble Apex Court, the concerned authority has also committed contempt.
For the aforesaid reasons, it has been submitted by the learned advocate appearing for the opponents, that the delay condonation application should be rejected because, there is gross delay in filing the appeal and no case has been made out for condonation of the same.
We have heard the learned advocates at length and have also perused the pleadings.
Upon perusal of the papers and upon hearing the learned advocates, it is clear that though the judgment had been delivered on 17th July, 2003 in Sessions Case No. 45/02 by the learned Sessions Judge, Veraval, Criminal Appeal No. 1732/06 had been filed only on 13th September, 2006. It is not in dispute that the learned APP, who had conducted case in the Sessions Court, did not forward his opinion or even a certified copy of the judgment to the Legal Department after getting the same. No reason of whatsoever type has been stated in the application as to why a certified copy of the judgment was not obtained or why the concerned APP had not forwarded his opinion alongwith a certified copy of the impugned judgment, to the Legal Dept.
It is also pertinent to note that in the application filed by the applicant, it has been clearly stated that on 18th August, 2006 when Criminal Misc. Application No. 761/03 was being heard by this Court (Coram: D.N. Patel, J.), an inquiry was made by the Court whether the State had filed an appeal and thereupon necessary inquiry was made by the office of the Public Prosecutor, Gujarat High Court. The said fact is not correct because, from the correspondence placed on record subsequently, it is clear that even before 18th August, 2006 the applicant State had made an effort to get a certified copy of the impugned judgment and opinion of the concerned APP. The said facts are not revealed in the application filed by the applicant.
No justifiable reason has been given as to why the normal practice with regard to sending a certified copy of the judgment alongwith his opinion to the Government was not followed by the concerned APP.
Looking to the above facts, in our opinion, it cannot be said that sufficient cause has been shown by the applicant for not preferring an appeal within the period of limitation. Also, the delay caused in filing the appeal is enormous.
In the aforesaid circumstances, in our opinion, no case has been made out for condonation of the delay and, therefore, the application is rejected. Rule is discharged.