IN THE HIGH COURT OF JUDICATURE AT PATNA SLA No.74 of 2007 SAUKHI RAM Versus 1. THE UNION OF INDIA 2. CHHATISH PASWAN For the petitioner :Mr. Parmeshwar Mehta(A.P.P.) For the O.P. no. 1 : Mr. Mahesh Prasad, Advocate. ----------- 7 27.02.2009 The present application has been filed by the complainant seeking leave of this Court to file appeal against the judgment and order dated 1.3.2006 passed by the Railway Judicial Magistrate, Khagaria in Tr. No. 37 of 2006. The present application is barred by limitation. The judgment was rendered on 1.3.2006 whereas the application was filed in this Court on 23.11.2007. Counsel for the petitioner fairly admits that there is a delay of over 1 ½ years. An application (I.A. No. 1959/2007) has been filed seeking condonation of delay in filing the present application. I have perused the application. Paragraph nos. 4 and 5 set out the grounds for condonation of delay that read as under: “4. That the complainant/petitioner filed complaint case who is a public servant under section 3 R.P. (U.P.) Act against the opposite party no. 2 with regard to offence committed on 29.4.97 in the court of Judicial Magistrate, Khagaria. 5. That at the instant case special leave application to appeal is being filed before this Hon'ble Court and the delay of filing Special Leave of the file in the several offices in the Government Department for obtaining permission and forwarding the file to this Hon'ble Court.” This Court, on perusal of the application seeking - 2 - condonation of delay, is convinced that no sufficient cause has been shown to the Court and as such the application seeking condonation of delay is not fit to be allowed. This Court also considered the matter on merit and finds that there is no merit in the application seeking leave to file appeal. The opposite party no. 2 herein admittedly was an employee of Railways and during the relevant time was serving as Gangman. Evidence on records indicate that being a Gangman, he is supposed to be in possession of articles which are said to have been recovered from the hut belonging to the opposite party no. 2 herein. The Court below has also taken into consideration that so far as recovery of the articles from the hut belonging to the opposite party no. 2 is concerned, the same has also not been proved beyond all reasonable doubt. Independent witness, in whose presence, the lock of the door was broken and recovery were allegedly effected had not been produced in Court. The Trial Court in paragraph no. 10 of the judgment held as under: “So far as recovery of material is concerned, the witnesses have admitted in evidence that lock of phoose hut was broken by R.P.F. & no family member nor accused was present at the time of recovery of railway material as alleged in prosecution report. P.W. 2 has admitted in para 2, P.W. 3 has admitted in para 2 regarding broken the lock of hut in presence of witnesses, but no such independent witness has been examined to corroborate the fact that lock was broken in their presence. The prosecution has not explained reason for not examining them, which is serious creates doubt on the correctness of the prosecution - 3 - story as the search was made in presence of P.W.-I S.P. Mandal as admitted by P.W. 2 in para 2, P..W. 3 in para 2, P.w. 4 in para 1 & 3 have admitted that P.W. I Shankar Pd. Mandal was present at the time of search & breaking the lock. The defence has filed C.C. of F.I.R & charge sheet of Forbisganj P.S. case no. 131/1997 against P.W. I S.P. Mandal for the occurrence of 25.4.1997 in which this accused is witness, which shows that P.W. I/NPV. has taken all the steps due to enmity & thereby without any authority, lock was broken, alleged material was recovered in absence of either accused or family members, in presence of P.W. I & witnesses are not examined including S.P. Mandal, P.W. I himself by the prosecution. It is also admitted fact that accused is gangman under this P.W. 1, hence is also every possibility of false implication at the instance of P.W. 1. S.P. Mandal & R.P.F. has supported his wrong intention, thereby all the material witnesses have not been examined intentionally by the prosecution. Even P.W. 2 has stated in para 11, P.W. 3 in para 13 have admitted that they cannot say the boundary of phoos hut of accused. The eye witnesses have failed to explain the boundary of alleged hut from which railway property is allegedly recovered on the date of occurrence.” This Court does not find any patent illegality in the consideration of the matter by the learned Trial Court meriting interference by granting the present application. The application seeking leave to appeal as well as I. A application (I..A. No. 1959/2007) seeking condonation of delay are devoid of merit and, accordingly, rejected. pkj ( Kishore K. Mandal, J )