This order condones a delay of 1844 days in preferring an appeal against a conviction under Section 376 IPC. The court held that releasing an incarcerated appellant is necessary to examine the legality of the judgment.
The application for condonation of delay is allowed and the case is disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC020004132019
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KOHIMA BENCH
Case No. : I.A.(Crl.) 11/2019
1:LIMATOSHI
S/O LATE SHYAM SINGH,
R/O MAREPKONG WARD,MOKOKCHUNG TOWN,MOKOKCHUNG798601,NAGALAND THROUGH THE JAILOR,DISTRICT JAIL, MOKOKCHUNG
VERSUS
1:THE STATE OF NAGALAND AND ANR KOHIMA
2:ASSISTANT SUB-INSPECTOR P.S-II MOKOKCHUNG (COMPLAINANT
Advocate for the Petitioner : SENTIYANGER
Advocate for the Respondent : GOVT ADV NL
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 13-11-2019
Heard Mr. Sentiyanger, learned counsel for the applicant-appellant. Also heard Mr. K. Wotsa, learned Public Prosecutor for the State of Nagaland. This is an application under Section 5 read with Article 115 (b) (i) of
Page No.# 2/4 the Limitation Act, 1963, praying for condonation of delay of 1844 days in preferring the connected appeal directed against the judgment and order dated 12.06.2014 passed by the learned Sessions Judge, Mokokchung, in G.R. Case No. 154/2013.
By the said judgment and order dated 12.06.2014, the applicantappellant has been convicted under Section 376(2)(f)(i) of the IPC and he has been sentenced to undergo rigorous imprisonment for a period of 10 (ten) years and to pay a fine of Rs. 1,000/- only, in default of payment of fine, to undergo further rigorous imprisonment for another 2(two) months. From the impugned judgment and order dated 12.06.2014, it transpires that the judgment and order of conviction and sentence was passed on the ground that the applicant/accused had pleaded guilty of the charge.
The applicant-appellant in support of his prayer for condonation of the period of delay, has submitted that he is a poor person and when the proceedings commenced and continued before the Sessions Court, Mokokchung, he was not in a condition to engage a lawyer on his behalf. It was only through a legal aid counsel permitted by the District Legal Services Authority, Mokokchung, he was represented before the trial Court. Following his conviction by the impugned judgment and order dated 12.06.2014, he has been undergoing sentence in District Jail, Mokokchung. Neither he was aware of his rights about preferring an appeal against the impugned judgment and order nor he was made aware about his such rights by any other person. It was only in May 2019, he became aware of his rights that an appeal can be preferred before the higher forum. The family members of the applicant-appellant contacted the Nagaland State Legal Services Authority, Nagaland at Kohima thereafter, and by an order dated 06.06.2019, the Member Secretary, Nagaland State Legal Services Authority appointed the present counsel to take appropriate steps on his behalf in order to explore possibilities of preferring an appeal and take appropriate steps in that regard. On being so engaged, an application thereafter was made before the Court of the learned Sessions Judge, Mokokchung through the panel lawyer of District Legal Services Authority, Mokokchung requesting supplied of copies,
Page No.# 3/4 as provided under Section 207, Cr.PC, 1973 as well as the impugned judgment and order dated 12.06.2014 passed in connection with G.R. Case No. 154/2013. It was upon receipt of the requested documents on 16.08.2019 from the learned Sessions Court, Mokokchung, the learned counsel engaged by the Nagaland State Legal Services Authority could prepare the memo of appeal and other necessary pleadings. After preparation of the same, the applicant-appellant had completed necessary formalities for filing the appeal and other necessary pleadings through the Officer-In-Charge of the District Jail, Mokokchung on 03.09.2019. As a result of the same, the delay amounting to 1844 days had occurred.
It is candidly submitted by the learned counsel for the applicantappellant that he has been engaged by the Nagaland State Legal Services Authority only on 06.06.2019 and thereafter, he has taken all necessary steps expeditiously in order to prefer the appeal. Though ignorance cannot be a valid defence, he has submitted that in order to consider the aspect, for the ends of justice, as to whether there was right exercise of discretion, available under Section 227 and 228 of the CR.PC, in convicting and sentencing the applicant-accused, the merits of the connected appeal shall be considered and for the interests of justice, the delay that has occasioned in preferring the connected the appeal may be condoned.
It is also submitted by the learned Public Prosecutor that consideration of the delay if it is bonafide, shall not be a factor for condonation of the period of delay.
I have considered the above submissions made by the learned counsel for the applicant-appellant.
Having considered the above fact situation obtaining in the case in hand, I am of the considered opinion that for the sake of justice, the period of delay though it is substantial, is required to be condoned in order to examine the legality and validity of the impugned judgment and order dated 12.06.2014, for the reason that in view of the said judgment and order, the applicant-appellant has been incarcerated in Jail since 12.06.2014 in order to undergo rigorous imprisonment of 10(ten) years.
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The delay is, accordingly, condoned. I.A. is disposed of.
Sd/- JUDGE
Comparing Assistant
2 issues framed by the court
Whether the substantial delay of 1844 days in preferring an appeal against conviction and sentence should be condoned to examine the legality of the impugned judgment.
Whether ignorance of appeal rights due to incarceration and reliance on legal aid counsel constitutes sufficient cause for condonation of delay.
1 provisions across 1 enactments
Limatoshi S/O Late Shyam Singh
The State of Nagaland
Assistant Sub-Inspector P.S-II Mokokchung
Manish Choudhury
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
