A Government Appeal filed by the State of U.P. against a Sessions Court judgment was dismissed. The court found the appeal was defective due to unexplained delay exceeding four years and no proper application with affidavit for condonation of delay was filed.
The Government Appeal was dismissed.
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Court No. - 66
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 591 of 2008
Appellant :- State of U.P. Respondent :- Chandrabhan And Others Counsel for Appellant :- G.A.
Hon'ble Samit Gopal,J.
List revised.
Sri Ankit Srivastava, learned counsel for the State-appellant is present.
The appellant is reported to be beyond time by 45 days.
No delay condonation application was filed along with the appeal but an application dated 11.12.2008 titled as Criminal Misc. Application No. ... of 2008 stated to be under Section 5 of the Indian Limitation Act has been filed with the following prayer:-
"It is therefore, most respectfully prayed that this Hon'ble Court may be pleased to grant one month time for filing affidavit in support of the application under Section 5 of the Indian Limitation Act in the present Government Appeal, for the ends of justice."
The perusal of the said application shows that it is not an application under Section 5 of the Indian Limitation Act but is a miscellaneous application seeking one month's time for filing affidavit in support of application under Section 5 of the Indian Limitation Act. The said application contains only two paragraphs which are quoted hereinbelow:-
"1. That there is some delay in filing of the aforesaid Government Appeal.
2. That it is therefore, expedient in the interest of justice that this Hon'ble Court may be pleased to grant one month time for filing affidavit in support of the application under Section 5 of the Indian Limitation Act."
The two paragraphs of the said application also show that it is not an application under Section 5 of the Indian Limitation Act.
From the records, it transpires that since the year 2008 no
proper application along with the affidavit has been filed for condonation of delay. On 29.09.2021, learned counsel for the State prayed for two weeks time to file an affidavit in support of delay condonation application but the office report dated 27.09.2022 states that no application for delay condonation application has been filed by the learned AGA as yet.
This is a really careless attitude.
The present appeal being defective has been preferred against the judgment and order dated 27.08.2008 passed by the Additional Sessions Judge/Special Judge (Prevention of Corruption Act), Bareilly in Criminal Appeal No. 163 of 2008 (State of U.P. Vs. Chandrabhan and others) for enhancement of sentence as awarded by means of the impugned judgment. The accused respondents Chandrabhan, Lekhraj, Mahendra and Chandra Sen have been convicted and sentenced under Section 323/34 IPC by the trial court against which an appeal was preferred in which they were acquitted of the charges levelled against them under Section 324/34 IPC and instead of their conviction for six months R.I. each, they were convicted 15 days simple imprisonment and fine of Rs. 500/- and in default of payment of fine, they shall undergo for 15 days additional imprisonment.
Since till date no proper application for condonation of delay and an affidavit has been filed and it has been about 14 years since the date of filing of the appeal, the present appeal is thus dismissed on the ground of latches which remains unexplained.
Accordingly, the present Government Appeal is dismissed.
Order Date :- 28.9.2022 M. ARIF
(Samit Gopal, J.)
Digitally signed by MOHAMMAD ARIF Date: 2022.09.28 16:54:00 IST Reason: Location: High Court of Judicature at Allahabad
1 issue framed by the court
Whether the Government Appeal should be dismissed due to unexplained delay and lack of proper condonation application.
1 provisions across 1 enactments
State of U.P.
Chandrabhan
Samit Gopal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
