Vellathurai vs State of Tamil Nadu

David Annoussamy, J.—This petition is by the convicted 4th accused to condone the delay of 1079 days in filing the appeal. We have

persuade the affidavit filed in support of the petition by the brother of the accused and we do not find any convincing explanation for this long

period which has elapsed. The petitioner would only say that he was not aware whether an appeal has been preferred by his brother or not and

that upon perusing the High Court records he came to know that no appeal was preferred by his brother. Such an explanation cannot be accepted

to condone the delay which had occurred in this case.

Learned counsel appearing for the petitioner would contend that the delay, however long it may be, may be condoned when it does not affect

the right of any party. In this connection he has produced before us a decision of the Punjab High Court in The State Vs. Dittu Ram Pritam Dass,

when Their Lordships have observed as follows :-

While dealing with applications u/s 5 of the Limitation Act, Courts are always influenced by the consideration whether extension of the period of

limitation is likely to affect the rights which have come to vest in the opposite party by efflux of time. If therefore a convict''s appeal is out of time, it

is the practice of the Punjab High Court to condone the delay as no right can be said to vest in the State to have the conviction of an innocent

person upheld. If, on the other hand, the State itself is negligent in the presentation of an appeal against acquittal, a very clear right comes to vest in

the accused person and he is entitled to claim that save in exceptional circumstances delay in filing the appeal should not be condoned.

We are unable to agree with such a proposition. Limitation as the very word would connote is a measure inherent to judicial administration and it is

a necessary ingredient for a good administration of justice. That is why for each kind of application, appeal and suit the law maker has instituted a

limitation and has prescribed the appropriate period for such limitation. The law maker in his wisdom has also provided u/s 5 of the Limitation Act

the possibility of condonation of delay if the party is able to satisfy the Court that he could not approach the court within the time prescribed.

Therefore, condonation is a matter of great importance and it is not to be considered as a matter of routine. No doubt, courts view the

condonation of delay in preferring appeal by the accused and the condonation of delay in preferring appeal by the State against an order of

acquittal differently, not because of any right involved, but for the sole reason that the prosecution is well equipped to present the appeal within the

stipulated time whereas a private individual, especially an accused who is in prison, is not on par with the Public Prosecutor.

It is further to be observed that now there is a well organised Legal Aid Service here and it is open to the accused to send appeal directly to the

High Court with a copy to the Legal Aid Service which would do all the needful to protect the interest of the accused/appellant/petitioner.

Therefore, we are unable to accept the contention of the learned counsel for the petitioner that the condonation of delay is a matter of right in the

case of an accused.

It is also to be noted that as per Part II of the Criminal Rules of Practice and Circular Orders, 1958, the records consisting inter alia of the oral

evidence would be destroyed after three years. Now, more than three years have elapsed and without the oral evidence it would not be possible to

appreciate the case of the appellant in the proper way. This is also another reason for rejecting the petition of accused.

In the result, the petition is dismissed.