1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.187 OF 2009 Shri Dilip Zaverchand Savani .... Applicants & Anr. Vs. The State of Maharashtra .... Respondent Mr.A.H.H. Ponda, Advocate for Applicants Mr.J.P. Kharge, APP for State Mr.Rahul S. Kadam, Advocate for Intervenor. CORAM : Smt. R.P. SondurBaldota, J. Date : 7th August , 2009 P.C. : 1. Rule made returnable forthwith. 2. Heard the learned counsels for both the sides extensively. This Criminal Revision Application is preferred against the order dated 4th February 2009 by which the learned Additional Sessions Judge, Greater Bombay condoned the delay on the part of the State in preferring the appeal to challenge the order of acquittal dated 29th October 2004. 3. The State had filed Miscellaneous Application No.1086 of 2008 for condonation of delay in filing the appeal. The application runs into 11 paragraphs, out of which paragraph nos.1 to 9 are devoted to the contention that there is no delay whatsoever in filing the appeal. Then at para 10 by way of abundant precaution, the State makes out following reason 2 for condonation of delay. The State had initially filed an application for leave to file appeal along with an application for condonation of delay in this Court. On realising that the amended Criminal Procedure Code required the appeal to be filed in the Court of Sessions, the State directed the Public Prosecutor, Sessions Court accordingly. The Public Prosecutor then applied for certified copy of the impugned judgment and order dated 29th October 2004. The certified copy was received on 15th February 2008 and thereafter the appeal was ready for filing in June 2008. This application came to be allowed by the Court of Sessions. 4. It appears that when the Court of Sessions was hearing the application for condonation of delay, the original complainant intervened and sought to produce chronology of events in order to assist the State in explaining the delay on it’s part. There is dispute between the parties over production of the chronology. According to the applicant herein, it does not form part of the proceedings in the Sessions Court whereas the prosecution submits otherwise. The impugned order does not refer to the document. The learned A.P.P. has filed an affidavit today to produce the disputed chronology which notes events not even referred to in the application for condonation of delay. 3 5. Perusal of the application for condonation of delay shows that it does not even make an attempt to explain the delay. Probably because the State was convinced that there is no delay. The learned Sessions Judge in the impugned order has also accordingly given a categorical finding that there is no explanation for the delay. Despite this finding he has proceeded to allow the application relying upon general knowledge of functioning of the State and also out of compassion for the original complainant. The first reason set out in the order based on general knowledge reads as under: “But it is also well known that the prosecutor intending to prefer appeal against acquittal has a lot of paper work to do. He has to obtain approvals and sanction and in the process the original motivation for an appeal is likely to be lost. This often results in delay”. It is to be noted that the State in its application has not even referred to any such difficulties. The other reason as regards impact on the original complainant, the learned Judge says as follows : “It is evident from the fact that the original complainant who lost valuable property had to pursue and fund from pillar to post to see that some steps are taken against the acquittal. In my opinion, the failure of the State machinery to be prompt in filing appeal within time should not be a punishment to the real victim the original complainant and therefore the delay deserves to be condoned.” 4 6. Mr.Ponda, the learned counsel for the applicant submits that the impugned order cannot be sustained as the learned Judge could not have relied upon general knowledge about functioning of the State. As regards the sympathy for the original complainant he submits that the same is misplaced as the complainant has an independent remedy provided by law which has already been resorted to by him. The original complainant has already preferred a revision application against the order of acquittal. 7. It is the submission of Mr. Ponda that the chronology so much insisted upon now by the State does not take its case any further than the observation in the impugned order that there is no explanation for delay in filing the appeal. I have, with the assistance of both the advocates gone through the chronology tendered. It is patent from the chronology that it contains events that are not pleaded by the State in its application. The learned A.P.P. is unable to offer any comment on this fact. Still, in order to satisfy my own conscience and also in order to satisfy the desire of the State to have complete hearing, I proceed to consider the chronology for whatever it’s worth. 5 8. The additional facts emerging from the chronology are that more than a year after the judgment and order of acquittal dated 29th October 2004, the Law and Judiciary Department of the State by it’s letter dated 17 th January 2006 directed the Public Prosecutor, High Court to file an appeal against the same. On 28th June 2006, the State filed an application for condonation of delay in seeking leave to appeal. By the order dated 17th November 2006, this Court returned the appeal to the Public Prosecutor for presentation to proper Court i.e. the Sessions Court in view of the amendments to Cr.P.C. It took four months for the learned Public Prosecutor to communicate this order to the Law and Judiciary vide his letter dated 13th March 2007. When the learned Public Prosecutor, Sessions Court was appraised of the order of this Court, he curiously sent for the concerned Investigating Officer for preparation of the appeal and spent time till December 2007 to pursue his attendance. Then he again applied for certified copy of the impugned order on 11th December 2007 which was apparently received by him on 15th February 2008. Thereafter the learned Public Prosecutor waited for summer vacations to get over and filed the application for condonation of delay on 27th June 2008. 6 9. As pointed out by Mr.Ponda, the initial delay of more than one year in filing the appeal in this Court also remains unexplained. The State does not even so much as refer to it in it’s application. 10. The chronology shows that the papers were lying unattended on the tables of Law and Judiciary Department, the learned Public Prosecutor, High Court and the leaned Public Prosecutor, Sessions Court for substantial period for which there is no explanation. Mr.Ponda relying upon the decision of Division Bench of our High Court in the case of The Commissioner of Income Tax vs. Reliance Capital Limited, reported in MANU/MH/0030/2009 submits that even if some kind of concession is required to be given to the Government Department for delay on it’s part in filing proceedings in Court, the concession can be only to a limited extent. The Division Bench has observed that normally a file may take few days or a week on a table, but it cannot take months and years. In the instant case, it has taken initially one year and later 2 ½ years. In the face of the above gross facts which are disclosed for the first time in the chronology supplied to the State by the original complainant, there could no condonation of delay in filing appeal by the State. 7 11. It is seen that the chronology cannot come to the rescue of the State. It has in fact brought to the forefront the total negligence on the part of the State. Probably this is the reason why the application for condonation of delay omits to mention all the facts. The most glaring omission is the order dated 17th November 2006 by which this Court returned the appeal to the State for presentation to proper Court. In view of return of the appeal papers, there was no question for preparation of a separate appeal or taking any steps in that direction. The State ought to have simply presented the appeal to the Sessions Court. 12. In the face of the above gross facts, the learned Sessions Judge ought not to have allowed the application. He also could not relied upon the general knowledge, particularly on the background of the above facts. The order amounts granting largesse to the State in an undeserving case. It must also be remembered that once the time limit to file appeal expires, it gives rise to a corresponding definite right in favour of the accused which cannot be disturbed in a light and cavalier manner. 13. In the circumstances, the Revision Application is allowed. The impugned order dated 4th February 2009 is set 8 aside. The Criminal Miscellaneous Application No.1086 of 2008 is dismissed. (Smt.R.P.SondurBaldota,J.) 9 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.227 OF 2009 IN CRIMINAL REVISION APPLICATION NO.187 OF 2009 Alpesh s/o Guirishkumar Sheth .... Applicant Vs. State of Maharashtra & Ors. .... Respondents Mr.A.H.H. Ponda, Advocate for Applicant Mr.J.P. Kharge, APP for State Mr.Rahul S. Kadam, Advocate for Intervenor. CORAM : Smt. R.P. SondurBaldota, J. Date : 7th August , 2009 P.C. : 1. This application is filed by the original complainant seeking permission to intervene in the Criminal Revision Application. Respondents no.2 to 4 who are the original applicants oppose the application. 2. When Mr.Kadam, learned counsel for the applicant was asked to point out the provision of law under which the original complainant can have a right of hearing in the present Criminal Revision Application, he has candidly stated that there is no provision in the Cr.P.C. permitting the original complainant to have a hearing in the present revision 10 application. He, however, submits that the complainant being the originator of the proceedings, principles of natural justice require that, he be heard in the matter. It is obvious that the only anxiety that the applicant has is about challenge to the order of acquittal of respondents no.2 to 4 in the proceedings initiated by him. Therefore, he is interested in the outcome of the application for condonation of delay in filing appeal by the State. How much soever the applicant may desire he can be of no assistance to the court in the matter of explanation to be provided by the State for delayed action on it’s part. As regards the challenge to the order of acquittal admittedly he has already filed Criminal Revision Application to challenge the same which is pending in this Court. His grievances would be heard and considered by the Court in that application. Hence, the Criminal Application No.227 of 2009 is dismissed. (Smt.R.P. SondurBaldota,J.)