1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4308 OF 2009 Shaikh Mohd. Iqbal ... Applicant versus State of Maharashtra & Anr ... Respondents ... Mr. Prakash Naik Adv. appointed as amicus curie for the applicant. Mr.A.M. Saraogi for respondent no.2. Ms.M.H. Mhatre APP for the State. CORAM : D.G. KARNIK, J. DATED : 26th November 2009 P.C. 1. I have heard Mr.Prakash Naik who was appointed by the Court for the applicant, Mr. Saraogi for respondent no.2 and learned APP for the State. 2. This application is directed against the order dated 18th February 2009 passed by the learned Addl. Sessions Judge, Gr. Mumbai rejecting the applicant’s application for condonation of delay. 3. The applicant filed a private complaint against Mr.Girdharlal Saxeria (accused no.1) and Pawan Kumar (accused no.2) Accused nos. 1 and 2 filed applications for discharge. The court allowed the application filed by accused no.2 (the respondent no.2 herein) and passed an order of discharge but rejected the application filed by the 2 accused no.1 on the ground that there was sufficient material to proceed against him. The order of discharge of accused no.2 was challenged by the applicant before the Court of Sessions after a lapse of more than four years and the application was barred by 4 years 6 months and 6 days. The applicant prayed for condonation of the delay on the ground that the applicant was old and on account of old age and ill-health, he could not file revision application in time. By a reasoned order dated 12th February 2009, the learned Sessions Judge rejected the application. That order is impugned in this application. 4. As observed by the learned Sessions Judge, the delay was considerable and was more than 4 years and 6 months. It is true that length of delay is not a criteria for allowing or rejecting the prayer for condonation of a delay. If there is sufficient cause the delay, howsoever long the period may be, can be condoned. However, in some cases a long delay would be a circumstance indicating negligence or atleast latches. In the present case, the only ground given for condonation of delay is that the applicant was old age and on account of ill-health he could not file an application for revision in time. There was enough material on record before the learned Sessions Judge showing that the old age and ill health was not and could not be a cause for the applicant for not filing the revision in time. Admittedly, both accused no.1 and accused no.2 had applied for their discharge. While the application of accused no.2 (present respondent no.2) was granted, the application for discharge made by Mr.Sakseria, the accused no.1, was rejected by the trial court. Accused no.1 had filed a revision application challenging that order in the Sessions Court. The applicant was personally attending the revision and argued in person the revision before the 3 Court of Sessions. The Sessions Court also dismissed the application of accused no.1 who carried on the matter to the High Court. The applicant also appeared in the High Court. The High Court remanded the matter back to the Sessions Court and again the applicant appeared in person in the Sessions Court after remand. This clearly shows that old age and ill health were not the grounds which prevented the applicant from attending the court. The long period of more than 4 years and 6 months shows that applicant had acquaisenced in the order of discharge and in any event was negligent in not challenging the same. It is only after the accused no.1 has finally been discharged by the Court of Sessions that the applicant has challenged the order of discharge qua the accused no.2 – present respondent no.2. 5. Even otherwise, no useful purpose would be served by continuing the prosecution. The principal accused i.e accused no.1 has already been discharged and the order of his discharge has become final. The involvement of the present respondent no.2 is stated to be secondary. After the discharge of the principal accused no useful purpose would be served by condoning the delay and continuing the prosecution against the respondent no.2 herein. 6. For these reasons, criminal application is dismissed summarily. 7. Before I part I must appreciate the able assistance rendered as amicus curie. (D.G. KARNIK,J.) 4