Dismissed

Rabdin Salim S/O Nagoor Pichai v. the State of Karnataka

Karnataka HC14 Dec 2020CRL.RP/100098/2020

Case brief

AI extract

What is this about?

Criminal revision petitioner sought to challenge the rejection of his discharge application. He applied for condonation of a 551-day delay, citing lack of communication while in jail. The High Court found the explanation inadequate and dismissive of legal requirements for limitation.

What did the court decide?

The application for condonation of delay was dismissed, and the main criminal revision petition was dismissed as it could not survive without condonation of delay.

Rabdin Salim S/O Nagoor Pichai Vs the State… — Civil Procedure and Limitation | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL REVISION PETITION NO.100098/2020

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BETWEEN:

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RADBIN SALIM S/O.NAGOOR PICHAI, AGE : 47 YEARS, OCC : NIL, R/O.AT PRESENT IN THE CENTRAL PRISON, BELAGAVI.

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... PETITIONER

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(BY SRI VISHNU BHAT, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, THROUGH ANKOLA POLICE STATION, DIST : UTTARA KANNADA, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT BENCH, DHARWAD.

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... RESPONDENT

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(BY SRI RAMESH CHIGARI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 19.10.2017 PASSED IN SESSIONS CASE NO.129/2014 BY THE PRINCIPAL SESSIONS JUDGE, BELAGAVI (KCOCA SPL.JUDGE) REJECTING THE APPLICATION FILED BY PETITIONER UNDER SECTION 227 OF CR.P.C. AND TO SET THE PETITIONER AT LIBERTY, IN THE INTEREST OF JUSTICE, ETC.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is preferred by accused No.6 against the rejection of his application filed under Section 227 of Cr.P.C. by the Principal Sessions Judge (KCOCA Special Judge), Belagavi dated 19.10.2017.

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The petitioner herein is arraigned as accused No.6 before the trial Court for the offences punishable under Sections 302, 307, 353, 120-B, 212, 201, 419, 468, 471, 384, 388 and 506 read with Section 149 of I.P.C. and Sections 3, 8 and 25(1-B)(a)(c) of Indian Arms Act. Further, the charges leveled against the present petitioner is for the offence punishable under Sections 3(1)(i), 3(ii), 3(2), 3(3) and 3(4) of the Karnataka Control of Organized Crime Act, 2020 (for short the ‘KCOCA’).

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Petitioner herein has filed an application I.A.

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No.2/2020 for condonation of delay of 551 days in filing the present petition. The application is supported by memo of

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facts filed by learned counsel for petitioner/accused No.6 as the accused No.6 is presently in judicial custody. The reasons for seeking condonation of delay of 551 days in filing the petition is narrated by deponent in paragraph No.3 of memo of facts, which reads as under :

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“It is humbly submitted that due to lack of communication from the side of petitioner, through Jail Authorities in submission of the required documents, there is delay of 551 days in filing the petition. The said delay is neither intentional nor deliberate”.

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Learned H.C.G.P. has filed his objections to the said application, wherein it is stated that petitioner has not assigned proper and cogent reasons to condone the exorbitant delay in filing the revision petition. It is further stated that petitioner has failed to explain each day of delay and has not explained any sufficient and believable reasons to condone the delay. It is further stated that after the impugned order was passed on 19.10.2017, petitioner has not immediately preferred the revision petition which has

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caused huge delay of 551 days in preferring this revision petition. It is further stated that after the impugned order was passed, the trial Court has proceeded to frame charge and has further proceeded to record the evidence of prosecution witnesses and 28 witnesses have been examined as of now. Therefore, the petition filed by accused No.6 herein would become infructuous as the charge being framed and trial having commenced.

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It is contended by learned counsel for petitioner that due to lack of communication between petitioner and learned counsel, there is a delay of 551 days in filing this petition as the petitioner is in judicial custody since 2014. Apart from stating the single sentence of lack of communication between petitioner/accused and the learned counsel representing him, no other reason is assigned for delay in filing this revision petition. It is not in dispute that pursuant to the impugned order passed by trial Court, charges have been framed against petitioner/accused No.6 and the trial has commenced and 28 witnesses have been examined in the matter, thereby

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much water has flown under the bridge and the petitioner has kept quite and takes his own time to approach this Court challenging the order of rejection of application seeking for discharge.

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While considering an application under Section 5 of the Limitation Act, it is no doubt true that a pragmatic lenient view has to be taken by the Court in condoning the delay and a liberal approach has to be made by the Courts in considering the application for condonation of delay as substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. It is further seen that while drafting any application for condonation of delay, same should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone the delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

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In the present case on hand, on careful perusal of the reasons assigned by petitioner for condoning the delay, the only reason that is stated is, lack of communication from the side of petitioner, due to which, delay of 551 days is caused in filing the present petition and that the petitioner is in judicial custody since 2014.

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It has to be seen whether the cause mentioned for delay can come within the definition of “sufficient cause” and where cogent reasons have been explained for the delay in filing the present petition. The term “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. It is also to be kept in mind that there is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the later it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. Therefore,

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there has to be proper cogent explanation for the delay in filing the petition as stated earlier, every application for condonation of delay has to be taken seriously and drafted carefully with proper application of mind and not any haphazard manner with an assumption that merely by filing the application the Court would mechanically allow the same this approach and manner of drafting should be done away by the bar.

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The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner required to be curbed, of course, within legal parameters.

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It is no doubt that in several decisions of the Hon’ble Supreme Court, it is stated that the condonation of delay application has to be considered in a pragmatic manner by taking a liberal approach, non pedantic approach which should be justice oriented and not be hyper technical. Nevertheless in a latest decision of the Hon’ble Apex Court in the case of University of Delhi v. Union of India & Ors. in

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Civil Appeal Nos.9488-9489/2019, the Hon’ble Apex Court has held that while considering the condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.

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In the present case on hand, the petitioner is challenging the rejection of his application seeking discharge under Section 227 of Cr.P.C. Pursuant to the impugned order, there is a delay of 551 days in filing this present petition. The reason assigned by the petitioner in the application seeking condonation of delay, is a bare skeleton application. The explanation given in the said memorandum of facts picks a casual approach unmindful of the law of limitation despite being aware of the position of law. Though there is a long delay of 551 days in preferring the petition, there is not even a proper explanation to condone the delay thereby latches would come into play while noticing as to the

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manner in which party has proceeded before filing the petition. Apart from stating that there is a lack of communication, the petitioner has not even stated a single sentence with regard to each day of delay caused in filing the present petition. It is no doubt true that in the decision of the Hon’ble Apex Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Katiji & Ors., reported in 1987(2) SCC 107 , it is stated that everyday’s delay need not be explained with such precision but the fact remains that a reasonable and acceptable explanation is very much necessary.

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In the present case, it is important to note that pursuant to the rejection of the application filed under Section 227 of Cr.P.C. by the petitioner, the trial Court has proceeded to frame charge against the petitioner/accused and has proceeded with the trial by examining 28 witnesses out of 300 witnesses and also recorded the substantial evidence of the prosecution witnesses. The present application suffers from delay and latches and as there is no

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proper explanation and cogent reasons stated which can be accepted and without giving any sufficient cause to condone the delay, the approach of the petitioner has been very casual and careless.

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Hence, on careful perusal of the application and the objections statement filed by the High Court Government Pleader, I am of the opinion that the application is hit by delay and latches and absolutely, no explanation is stated to condone the delay as stated in the application. Therefore, I do not find any cogent reason to condone the enormous delay of 551 days in filing the present petition. Accordingly, I pass the following:

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ORDER

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(i) Application-IA.No.2/2020 filed for condonation of delay of 551 days is dismissed;

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(ii) In view of rejection of application for condonation of delay, the main petition would not survive for consideration and the same is also dismissed .

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(iii) In view of dismissal of the main petition, IA.No.1/2020 does not survive for consideration and the same stands dismissed.

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Sd/JUDGE

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CKK/LB

Rabdin Salim S/O Nagoor Pichai v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Rabdin Salim S/O Nagoor Pichai v. the State of Karnataka

Case brief

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