IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 276 OF 2010 IN STAMP NUMBER MAIN NO. 2985 OF 2010 SUBHASH SAMAL, PRESENTLY IN CENTRAL JAIL, AGUADA, SINQUERIM, BARDEZ-GOA ... Applicant Versus STATE OF GOA THROUGH OFFICER-IN-CHARGE, CALANGUTE POLICE STATION., ... Respondent Mrs. Caroline Collasso, Advocate for the Applicant. Mr. C.A. Ferreira, Public Prosecutor for the Respondent. Coram:- S.B. DESHMUKH & F. M. REIS, JJ. Date:- 12th January, 2011 P.C.: We have heard learned Counsel appearing for respective parties. 2. Counsel appearing for the applicant states that the applicant has been convicted for the offence punishable under Section 302 of Indian Penal Code and is in jail. This appeal filed by the convict/applicant challenging his conviction is delayed by four years and one month. Statement is made that delay is not intentional. 3. Learned Public Prosecutor Mr. Ferreira, at the outset, submits that the delay of four years and one month is inordinate. This proposition is not disputed by the Counsel appearing for the applicant. The applicant, from the date of his arrest, initially was in police custody, and thereafter to the magisterial custody. He was not released on bail and was tried as under trial for the offence punishable under Section 302 of Indian Penal Code. These facts are not disputed by the learned Public Prosecutor. However, according to him present applicant twice engaged lawyer and successfully filed application seeking furlough/parole before this Court. According to him, if the applicant was able to move this Court for the relief for furlough/parole, it was possible for the applicant to file appeal or move appeal in this Court. He suggested that even applicant could have moved this Court by making an application which could have been considered by this Court as an appeal. He therefore states that inordinate delay of four years and one month is not required to be considered and application be rejected. 4. Counsel appearing for the applicant seeks condonation of delay. Condonation of delay is a matter of Section 5 of the Indian Limitation Act. "Just and sufficient reason" for condoning delay has been considered and interpreted by this Court and Hon'ble Supreme Court, time and again. In this regard, reference could be made to the judgment in the case of COLLECTOR LAND ACQUISITION, ANANTNAG & ANR. Vs. MST. KATIJI & ORS.(AIR 1987 1353). The Hon'ble Supreme Court, in the year 1998, has also considered and referred to its earlier judgment in the case of COLLECTOR LAND ACQUISITION, ANANTNAG & ANR. Vs. MST. KATIJI & ORS. (supra). Second judgment is in the case of N. BALAKRISHNAN. Vs. M. KRISHNAMURTHY (AIR 1998 3222). In the judgment of 1987, six guide lines have been laid down for considering the condonation of delay. In the judgment of 1998, Hon'ble Supreme Court has observed in para 13 that ordinarily litigants are busy in their occupation and service. In every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to shut the door against him. 5. We are considering the case of a convict who undisputably was in custody either police or magisterial from his date of arrest and in jail after conviction recorded by the competent Court. Moving application for furlough/parole by the applicant by engaging a lawyer, in our opinion, cannot be considered to be circumstance to dismiss the application filed on behalf of the applicant. Apart from considerations, of Section 5 of the Indian Limitation Act Article 21 comes in aid to a convict, who is in jail undergoing conviction recorded by the Court and desires to file appeal before the appellate Court. In our opinion, this application can be favourably considered. In cases where private party and/or State is opposing the application for delay, inconvenience caused to the party can be considered and appropriate costs be awarded. In the case at hand, in our opinion, there is no question of awarding costs to the State even though it is a case of condonation of delay of four years and one month. We are inclined to grant the application. Length of the delay is not the only criteria, adequacy of the reason should be considered by the Court. We are satisfied that in the case at hand the ground raised is just sufficient to condone the delay of four years and one month. 6. Criminal application accordingly is allowed. The delay of four years and one month stands condoned. Applicaiton accordingly is disposed of. S.B. DESHMUKH, J. F. M. REIS, J. NH