IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.727 of 2010 SANJAY KUMAR S/O SHRI DWARIKA PRASAD SEP.(CK), 4 PR BN (BIHAR), C/O 56, A.P.O. NO. 4279180P, R/O VILL.- SHAHPUR SHAIBALA, P.O.- DAUDPUR, P.S.- SHAHPUR, DISTT.- PATNA (BIHAR). ---------------APPELLANT/PETITIONER. Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF DEFENCE, GOVT. OF INDIA, NEW DELHI 2. THE GENERAL OFFICER, COMMANDING-IN- CHIEF, HEADQUARTER, CENTRAL COMMAND, LUCKNOW (U.P.) 3. THE LIEUTENANT GENERAL, GENERAL OFFICER COMMANDING-IN-CHIEF, HEADQUARTER, CENTRAL COMMAND, LUCKNOW (U.P.) 4. THE COMMANDANT, BIHAR REGIMENTAL KENDRA, THE BIHAR REGIMENTAL CENTRE, DANAPUR CANTT., DISTT.- PATNA-801503 5. THE CAPTAIN, OFFG. ADJT., BIHAR REGIMENT KENDRA, THE BIHAR REGIMENTAL CENTRE, DANAPUR CANTT., DISTT.- PATNA- 801503 6. THE LIEUTENANT COLONEL, ADMINISTRATIVE BATTALION COMMANDER, BIHAR REGIMENTAL KENDRA, THE BIHAR REGIMENTAL CENTRE, DANAPUR CANTT., DISTT.- PATNA 7. THE MAJOR, ADJT., BIHAR REGIMENT KENDRA, THE BIHAR REGIMENTAL CENTRE, DANAPUR CANTT., DISTT.- PATNA- 801503. --RESPONDENTS/RESPONDENTS. For the Appellant: Mr. Amrit Abhijat, Advocate. For the Respondents: Mr. Sarvadeo Singh, Advocate. ----------- 2 20-04-2010 I.A. No.3840 of 2010. We have heard counsel for the parties in the 2 matter of condonation of delay in filing the appeal which is of a period of two years and 285 days. Mr. Amrit Abhijat, learned counsel for the appellant with reference to the facts stated in this application has submitted that the only reason for such a delay in filing the appeal was on account of illness of father of the appellant who was suffering from Bone Tuberculosis between the periods 15.6.2007 to 22.3.2010. The learned counsel in this respect also refers to some medical prescriptions issued by a Government Dispensary, Referral Hospital, Bihta. This Court has carefully perused the prescriptions as contained in Annexure- 1 series of this application and would find that they do not inspire confidence. From the first page of Annexure-1 the prescription, it would be clear that the date of 15.6.2010/16.6.2010 at different places have been penned through and sought to be interpolated as 15.6.2007/16.6.2007, which becomes manifest from the second page wherein the dates mentioned are 17.12.2007 and 18.6.2008. Such interpolation, in fact, becomes also 3 visible from the third page of the prescription where the date 19.12.2008 was sought to be changed as 15.6.2007 for giving an impression that it was an old registered case. Thus, these prescriptions, which as a matter of fact are at best the out door prescription allegedly with regard to illness of father of the appellant by themselves do not inspire confidence. At one stage this Court thought it appropriate to get the matter enquired into, but then taking into consideration that the appellant is aged about 29 years and has been dismissed from the Indian Army after holding the Summary Court Martial for committing the offence under section 38 (1) of the Army Act, would leave him to his fate. Incidentally, this Court would also find from perusal of memo of appeal that the appellant was dismissed from the Indian Army on account of his deserting/running away from his Unit at Ambala Cantt since 13.5.2004 and when he was arrested and was being taken to his parent Unit he had given a slip escort party at Ambala Cantt. Later on, on being apprehended till he 4 again surrendered on 10th January, 2005. There also the appellant in course of Summary Court Martial has taken a defence of illness of his father, which was found to be wholly incorrect. Let it be noted that father of the appellant was never hospitalized and was on periodical check-up of his Tuberculosis. In that view of the matter, it becomes clear that when the appellant himself had pleaded to be guilty of the charge before the Summary Court Martial which had inflicted punishment of dismissal from service in terms of Section 38 (1) of the Army Act for deserting the service and the appeal against such order of the Summary Court Martial had also dismissed on 6th December, 2005, there would be nothing left for us to now go into the merits of the case especially when the learned Single Judge having found seriousness of the charge of deservation to have been completely proved, upheld the order of dismissal. We are, therefore, satisfied that the feigned ground of illness of father of the appellant and delay of 5 almost three years in filing the appeal against the order of the learned Single Judge dated 1.5.2007 in C.W.J.C. No.14963 of 2006 cannot be condoned, inasmuch as, there is no justifiable ground for such a delay muchless any sufficient cause has been shown in this application. In that view of the matter, we are not inclined to condone the delay in filing the appeal. L.P.A. No.727 of 2010. In view of the fact that we have rejected the prayer for condoning the delay in filing the appeal, this appeal being barred by limitation is hereby dismissed. (Dipak Misra, C.J.) Abhay Kumar ( Mihir Kumar Jha, J.)