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Judgment
The Petitioners/Appellants/A1 & A4 have preferred the instant
Criminal Miscellaneous Petition praying for passing of an order by
this Court to condone the delay of 1858 days in filing the Appeal as
against the Judgment dated 08.06.2011 in S.C.No.115 of 2009
passed by the Learned Assistant Sessions Judge, Tambaram.
According to the Learned Counsel for the Petitioners/
Appellants, the Petitioners/Appellants/A1 & A4 have no source of
income or no relatives either by father or mother or brothers
except the 1st Petitioner''s/1st Appellant''s/A1''s brother. Further, the
1st Appellant''s brother was not in Chennai for years together and he
was doing some Coolie Job at Kerala and Andrapradesh and in
other places. As a matter of fact, only recently he came over to
Chennai and came to know about the imprisonment of his brother
viz., 1st Petitioner/1st Appellant/A1.
The Learned Counsel for the Petitioners/Appellants projects
an argument that although the Petitioners/Appellants made an
endeavour to prefer an Appeal with the assistance of Legal Aid
Board, they could not succeed in this regard, as a result of which,
there is inordinate delay of 1858 days in preferring the Appeal,
which is neither wilful nor wanton but due to the aforesaid reasons.
The Learned Counsel for the Petitioners/Appellants take a
stand that the Petitioners/Appellants are serving the sentence in
Prison and if the delay of 1858 days in question is not condoned, it
will cause untold hardships and misery to them.
Per contra, it is the submission of the Learned Government
Advocate (Crl. Side) that after a lapse of five years from the date of
Judgment of the trial Court, the Petitioners/Appellants have filed
the instant Criminal Miscellaneous Petition to condone the delay of
1858 days in preferring the Criminal Appeal without any valid
reason and moreover, in the Prison itself ''Free Legal Aid'' was given
to the Accused persons who are not able to engage an Advocate.
The pith and substance of the stand of the Respondent is
that the delay of 1858 days in question is an enormous one and
since the reasons ascribed by the Petitioners/Appellants for the said
delay of 1858 days are not bona fide, the Crl.M.P.No.9580 of 2016
is to be dismissed, in the interest of Justice.
This Court has heard the Learned Counsel for the
Petitioners /Appellants and the Learned Government Advocate (Crl.
Side) for the Respondent/State.
It transpires that in S.C.No.115 of 2009, the trial Court had
delivered a Judgment on 08.06.2011. The Petitioners/Appellants
were convicted and sentenced to undergo five years Rigorous
Imprisonment each in respect of an offence under Section 451
I.P.C. and in respect of an offence under Section 395 read with 397
I.P.C. was concerned, they were imposed with a punishment of ten
years Rigorous Imprisonment each. In fact, the sentences were
ordered to run consecutively. Further, the period already
undergone was directed to set off under Section 428 Cr.P.C.
It is to be relevantly pointed out that ''Sufficient Cause'' is a
condition precedent for the exercise of discretion by the Court
concerned, for condoning the delay in question. As a matter of fact,
the term ''Just Cause/Sufficient Cause'', ordinarily, in a given case
would mainly fall back upon the ''bona fide'' character of the
explanation offered. It is true that for ''Condonation of Delay'' no
rigid formula is envisaged to arrive at a conclusion by the Court
concerned to the effect that good grounds have been made out or
otherwise.
A closer scrutiny of Section 5 of the Limitation Act
undoubtedly makes it clear that the words ''Sufficient Cause'' have
been left unillustrated and undefined. In reality, what is ''Sufficient
Cause'' in a given case may not be so in another one. If in a given
case, the explanation offered by the Petitioners or concocted or
they are negligent in prosecuting his case any further, then, the
delay may not be condoned by a Court of Law by exercising its
judicial discretion.
It is to be borne in mind that off late there is an
increasing tendency to perceive the ''Delay'' aspect in a non serious
fashion and a lackadaisical or a laissez faire propensity is exhibited
in a nonchalant manner which needs to be discouraged within
the parameters of Law, in the considered opinion of this Court.
At this stage, this Court aptly recalls and recollects the
decision of the Hon''ble Supreme Court in H.Dohil Constructions
Company Private Limited V. Nahar Exports Limited and
another, (2015) 1 Supreme Court Cases 680 at Special page
681, wherein in paragraph Nos.19 & 24, it is observed as follows:
"19.It is true that the delay in filing the appeals was only 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refiling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is condoned. Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be found with anyone much less with the party concerned or whomsoever was entrusted with the filing of the papers into the Registry. But when an enormous delay of nearly five years occurred in the matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the party concerned from refiling the papers in time to enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals.
24.The failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing
of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the respondents from not paying the court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bona-fides in its approach."
Also, in the aforesaid decision, at page 682, in paragraph
25, it is held as follows:
"25.Thus, there is total lack of bona fides in its approach and the impugned order of the High Court in having condoned the delay in filing as well as refiling, of 9 days and 1727 days respectively, in a casual manner without giving any reason, much less acceptable reasons, cannot therefore be sustained."
Considering the fact that the Judgment of the trial Court
was passed in S.C.No.115 of 2009 as early as on 08.06.2011 and
this Court, taking note of the fact that the Petitioners/Appellants
had filed the Criminal Miscellaneous Petition with a delay of 1858
days and although the Petitioners/Appellants have come out with a
reason at paragraph 3 of the Affidavit in Crl.M.P.No.9580 of 2016 to
the effect that the 1 st Petitioner''s/1st Appellant''s/A1''s brother was
not in Chennai for years together and went for Collie Job at Kerala
and Andrapradesh etc., this Court finds that the said reasons are
not valid, acceptable one, besides the same suffering from lack of
bona fides. Therefore, this Court is not in a position to extend its
''arm'' of judicial generosity to and in favour of the
Petitioners/Appellants. Consequently, the Petition fails.
In fine, the Crl.M.P.No.9580 of 2016 is dismissed.