IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 405 of 2009 In Criminal Application No. 404 of 09 in Criminal Appeal No. 758 of 03 Shri Sant Gadge Baba v. Shri Shriram ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr S.G. Loney, Adv for appellant Mr C.N. Adgokar, APP for State Coram : A.P. Bhangale, J Dated : 15th February 2010 Heard learned counsel for the parties. This is application by son of the original appellant who expired during the pendency of criminal appeal no. 758 of 03 with prayer that he attained majority in the year 2009 and became aware of consequences in respect of abetment of the appeal. The applicant is hopeful of that stigma on the character on his father as a result of conviction by the trial court can be removed if appeal is successful. Further according to learned counsel for applicant, after attaining majority, the applicant engaged an advocate and collected necessary papers in order to file present application. Reference is made to ruling in State of Nagaland v. Lipok AO and ors in Criminal Appeal No. 484 of 2005 decided by the Apex Court on 1st April 2005. In para 14 reference is made to earlier ruling including three-Judge Bench ruling in O.P. Kathpalia v. Lakhmir Singh reported in AIR 1984 SC 1744 in which it is observed that if refusal to condone delay results in grave miscarriage of justice, it would be ground to condone the delay. Thus, the Apex Court in the interest of substantial justice preferred to condone delay over technical consideration. 2. Learned APP objected the prayer on the ground that the advocate who had represented the original appellant had brought to the notice of the Court the fact of death of appellant on 6.10.2006. That being so, delay is not condonable . 3. In my opinion, considering the fact that the applicant was minor when appeal abetted, the fact that he has attained majority on 21st October 2009 as submitted by learned counsel for the applicant as also the fact that mother of the applicant is illiterate, not mentally sound to understand the consequences of conviction order passed against the accused/original appellant by the trial court, although there is delay, an opportunity is required to be given to the applicant to prosecute the appeal under the above circumstances by condoning delay which does not appear deliberate or intentional. If at all the appeal succeeds, applicant would have satisfaction that stigma upon his father’s character is removed. Therefore, in order to decide the appeal on its own merits, although delay is inordinate, in the facts and circumstances, it is condoned subject to payment of costs of Rs. 1000/- payable to the HC Legal Services, Sub-committee at Nagpur within a period. If costs are paid within one month, abatement shall be set aside and appeal be listed for final hearing as per its chronology. Application disposed of. Judge. Hsj