The Madras High Court dismissed a criminal miscellaneous petition to condone a 1858-day delay in filing an appeal against a conviction for IPC offences. The Court held the proffered reasons were not bona fide and failed to show sufficient cause.
Application to condone delay of 1858 days in filing the appeal was dismissed.
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.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.03.2017
Pronounced on : 09.03.2017
Coram
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL
Crl.M.P.No.9580 of 2016
in
Crl.A.Sr.No.38432 of 2016
1.Karthick 2.Seenu @ Murugan ... Petitioners/Appellants/A1 & A4
V.
State represented by Inspector of Police, Thuraipakkam Police Station, Chennai. ... Respondent/Complainant
Prayer: Appeal filed under Section 374(2) of the Criminal Procedure Code, praying to condone the delay of 1858 days in filing the Appeal in S.C.No.115 of 2009 dated 08.06.2011 on the file of the Learned Assistant Sessions Judge, Tambaram, pending disposal of the Appeal.
Crl.A.Sr.No.38432 of 2016: Appeal filed U/s. 374 (2) of the Criminal Procedure Code, praying to Judgment passed in S.C.NO.115 of 2009 on the file of the Learned Assistant Sessions Judge, Tambarm, dated 8.6.2011.
For Appellant : M/s.K.Gajendiran For Respondent : Mr.K.Madhan
Government Advocate (Crl. Side)
ORDER
The Petitioners/Appellants/A1 & A4 have preferred the instant Criminal Miscellaneous Petition praying for passing of an order by this Court to condone the delay of 1858 days in filing the Appeal as against the Judgment dated 08.06.2011 in S.C.No.115 of 2009 passed by the Learned Assistant Sessions Judge, Tambaram.
2.According to the Learned Counsel for the Petitioners/ Appellants, the Petitioners/Appellants/A1 & A4 have no source of income or no relatives either by father or mother or https://hcservices.ecourts.gov.in/hcservices/ brothers except the 1st Petitioner's/1st Appellant's/A1's
brother. Further, the 1st Appellant's brother was not in Chennai for years together and he was doing some Coolie Job at Kerala and Andrapradesh and in other places. As a matter of fact, only recently he came over to Chennai and came to know about the imprisonment of his brother viz., 1st Petitioner/1st Appellant/A1.
3.The Learned Counsel for the Petitioners/Appellants projects an argument that although the Petitioners/Appellants made an endeavour to prefer an Appeal with the assistance of Legal Aid Board, they could not succeed in this regard, as a result of which, there is inordinate delay of 1858 days in preferring the Appeal, which is neither wilful nor wanton but due to the aforesaid reasons.
4.The Learned Counsel for the Petitioners/Appellants take a stand that the Petitioners/Appellants are serving the sentence in Prison and if the delay of 1858 days in question is not condoned, it will cause untold hardships and misery to them.
5.Per contra, it is the submission of the Learned Government Advocate (Crl. Side) that after a lapse of five years from the date of Judgment of the trial Court, the Petitioners/Appellants have filed the instant Criminal Miscellaneous Petition to condone the delay of 1858 days in preferring the Criminal Appeal without any valid reason and moreover, in the Prison itself 'Free Legal Aid' was given to the Accused persons who are not able to engage an Advocate.
6.The pith and substance of the stand of the Respondent is that the delay of 1858 days in question is an enormous one and since the reasons ascribed by the Petitioners/Appellants for the said delay of 1858 days are not bona fide, the Crl.M.P.No.9580 of 2016 is to be dismissed, in the interest of Justice.
7.This Court has heard the Learned Counsel for the Petitioners /Appellants and the Learned Government Advocate (Crl. Side) for the Respondent/State.
8.It transpires that in S.C.No.115 of 2009, the trial Court had delivered a Judgment on 08.06.2011. The Petitioners/Appellants were convicted and sentenced to undergo five years Rigorous Imprisonment each in respect of an offence under Section 451 I.P.C. and in respect of an offence under Section 395 read with 397 I.P.C. was concerned, they were imposed with a punishment of ten years Rigorous Imprisonment each. In fact, the sentences were ordered to run consecutively. Further, the period already undergone was directed to set off under Section 428 Cr.P.C.
9.It is to be relevantly pointed out that 'Sufficient Cause' is a condition precedent for the exercise of discretion by the Court concerned, for condoning the delay in question. As a matter of fact, the term 'Just Cause/Sufficient Cause', ordinarily, in a given case would mainly fall back upon the 'bona fide' character of the explanation offered. It is true that for 'Condonation of Delay' no rigid formula is envisaged to arrive at a conclusion by the Court concerned to the effect that good grounds have been made out or otherwise.
10.A closer scrutiny of Section 5 of the Limitation Act undoubtedly makes it clear that the words 'Sufficient Cause' have been left unillustrated and undefined. In reality, what is 'Sufficient Cause' in a given case may not be so in another one. If in a given case, the explanation offered by the Petitioners or concocted or they are negligent in prosecuting his case any further, then, the delay may not be condoned by a Court of Law by exercising its judicial discretion.
11.It is to be borne in mind that off late there is an increasing tendency to perceive the 'Delay' aspect in a non serious fashion and a lackadaisical or a laissez faire propensity is exhibited in a nonchalant manner which needs to be discouraged within the parameters of Law, in the considered opinion of this Court.
12.At this stage, this Court aptly recalls and recollects the decision of the Hon'ble Supreme Court in H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and another, (2015) 1 Supreme Court Cases 680 at Special page 681, wherein in paragraph Nos.19 & 24, it is observed as follows:
“19.It is true that the delay in filing the appeals was only 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refiling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is condoned. Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be found with anyone much less with the party concerned or whomsoever was entrusted with the filing of the papers into the Registry. But when an enormous delay of nearly five years occurred in the matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the party concerned from refiling the papers in time to enable the Registry to https://hcservices.ecourts.gov.in/hcservices/ process the papers and ascertain whether
the papers were in order for the purpose of numbering the appeals.
24.The failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the respondents from not paying the court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bona-fides in its approach.”
13.Also, in the aforesaid decision, at page 682, in paragraph 25, it is held as follows:
“25.Thus, there is total lack of bona fides in its approach and the impugned order of the High Court in having condoned the delay in filing as well as refiling, of 9 days and 1727 days respectively, in a casual manner without giving any reason, much less acceptable reasons, cannot therefore be sustained.”
14.Considering the fact that the Judgment of the trial Court was passed in S.C.No.115 of 2009 as early as on 08.06.2011 and this Court, taking note of the fact that the Petitioners/Appellants had filed the Criminal Miscellaneous Petition with a delay of 1858 days and although the Petitioners/Appellants have come out with a reason at paragraph 3 of the Affidavit in Crl.M.P.No.9580 of 2016 to the effect that the 1st Petitioner's/1st Appellant's/A1's brother was not in Chennai for years together and went for Collie Job at Kerala and Andrapradesh etc., this Court finds that the said reasons are not valid, acceptable one, besides the same suffering from lack of bona fides. Therefore, this Court is not in a position to extend its 'arm' of judicial generosity to and in favour of the Petitioners/Appellants. Consequently, the Petition fails.
15.In fine, the Crl.M.P.No.9580 of 2016 is dismissed.
Sd/Assistant Registrar(J)
//True Copy//
Sub Assistant Registrar
Sgl
To
1.The Assistant Sessions Judge,
Tambaram.
2.The Public Prosecutor,
High Court, Madras.
3.The Section Officer,
Records Section,
High Court, Madras.
4. The Inspector of Police,
Thuraipakkam Police Station,
Chennai.
+ 1 cc to Mr.K. Gajendiran, Advocate SR.14981
Crl.M.P.No.9580 of 2016
in Crl.A.Sr.No.38432 of 2016
SK(CO)
Eu 20.3.17
2 issues framed by the court
Whether the delay of 1858 days in filing a criminal appeal can be condoned given the lack of bona fide reasons and sufficient cause.
Whether the explanation of family unavailability and displacement for work constitutes valid ground for condoning the delay.
Colour shows how this judgement treated each authority
H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and anotherReferred¶30
(2015) 1 SCC 680 · Who else cites this
3 provisions across 2 enactments
Karthick and another
State
M. Venugopal
As recorded by the court registry
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