Shymal Payne Vs the State of Assam

application under Section 5 of the Limitation Act, 1963, seeking condonation of delay of 125 days in preferring the connected criminal appeal, whereby, the applicant intends to impugned the judgment dated 13.03.2024, passed by the Court of the learned Additional Sessions Judge, Dhubri in Criminal Appeal Case No. 04/2023, whereby, the judgment and sentence dated 24.02.2023, passed by the learned trial court in C.R Case No.3334/2015 was reversed and the convict appellant in that appeal was acquitted. However, there is stated to be a delay of 125 days in preferring the appeal and hence, this delay condonation proceeding.

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3. In support of grounds for condonation of delay, the learned counsel has drawn attention to paragraph 6, 7 and 8 of the petition. The sum and substance of these grounds are that the petitioner is an old aged person suffering from ailments since 2022 and after suffering a brain stroke/cerebrovascular accident, he has been suffering from disabilities and finds it difficult to function without the help of other persons.

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4. It is stated that subsequently, he has recovered a little and been able to take some decisions. It is stated that the petitioner is under care and supervision of doctor as well as family member and has been unable to contact with the counsel.

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5. It is stated that he has not yet fully recovered but he has filed this instant case seeking justice. It is also stated that he has been unable to write due to neurological problems and in this circumstances, he contends that the delay may be condoned.

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Page No.# 4/7

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6. In paragraph 8, it is stated that the delay is not deliberate or intentional but because of illness and may be condoned.

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7. In support of his contentions, two medical documents have been annexed as Annexure-1 series. The certificate dated 10.11.2022 indicates Ischemic changes with celebral atrophy and onset of giddiness with slurring of speech, followed by left sided weakness.

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8. Another certificate, dated 06.07.2024, indicates that he suffered from a cerebrovascular accident with hypertension and neuropathy and he is unable to speak and write properly due to his illness.

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9. Ms. K. Bhattacharyya, learned counsel for the respondent no.2 submits that the delay has not been explained properly and further contends that the explanation for the said delay of 125 days is rather vague.

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10. I have perused the delay condonation petition, annexed documents and considered the submission of learned counsels.

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11. In this case, the quantum of delay is 125 days. The said delay cannot be called a small quantum of delay and at the same time, it is also not relatively a large quantum of delay. The limitation period for preferring an appeal against acquittal is 90 days as per Article 114 of the Limitation Act 1963.

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12. The applicant is prima-facie a senior citizen and as per the medical report of 2024, his age is mentioned as 70 years. The illness that the applicant is purportedly suffering from is a neurological

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Page No.# 5/7

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deficit following a stroke, affecting his ability to work independently, speak properly and write properly. One of the contentions is that he filed his case after he recovered from his illness somewhat.

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13. It is undoubtedly true that when an accused after facing a trial is acquitted by the Court, an important right occurs in his favour. And, if that status of having been acquitted is sought to be reopened by an appeal against acquittal, undoubtedly, any question of delay also has to be seen in proper perspective, also looking at the matter from the point of view of the accused. In the instant case, the trial court judgment was one of conviction which was overturned by the learned appellate court resulting in acquittal of the respondent no.2.

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14. Balancing the competing interests in this case, I find that the applicant is a senior citizen seeking condonation of delay of 125 days to prefer appeal against acquittal on the ground of being afflicted by an illness by way of neurological deficit owing to stroke.

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15. The learned counsel for the respondent has rightly contended that the applicant has not made a day to day explanation of the delay. However, in the peculiar circumstances of this case, as noticed above, such an approach might be hyper-technical and in the larger of interest of justice vis-a-vis the position of the applicant, perhaps the delay needs to be condoned.

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16. In this context, a decision of the Bombay High Court rendered in Shivaji Shivlingappa Kadge v. Chief Officer, Municipal

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Page No.# 6/7

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Council, Kannad, 2005 SCC OnLine Bom 430 : (2005) 3 Mah LJ 681 : (2005) 6 Bom CR 424 : (2005) 107 (3) Bom LR 958 can be referred to and the relevant para can be gainfully reproduced here under :

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7. Thus, the primary function of a Court is to adjudicate the disputes between the contesting parties and to advance substantial justice. It is to be borne in mind that the rules of limitation are not made to harm the valuable rights of the parties. Reference with profit can also be made to the case of N. Balkrishnan v. M. Krishna Murthy, (1998) 7 SCC 123. The Supreme Court has observed that the rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the parties do not resort to dilatory tactics. The Supreme Court has further observed that section 5 of the Limitation Act does not say that the discretion given to the Court can be exercised only if delay is within a certain limit. Length of delay is not the matter, acceptability of explanation is the only criterion.

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17. Accordingly, in the given facts and circumstances and in the backdrop of the above discussion, I allow this interlocutory application and the delay of 125 days in preferring the criminal appeal is hereby condoned .

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18. The interlocutory application stands allowed and disposed of .

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Page No.# 7/7

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19. The criminal appeal may be numbered and listed for

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admission.

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JUDGE

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Shymal Payne v. the State of Assam

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Shymal Payne v. the State of Assam

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