A.N. Surti, J.
1. This Misc. Criminal Application No. 46 of 1982 is filed by be State of Gujarat for getting the delay condoned in filing the present appeal in this Court. The delay is of 58 days.
2. At the time of bearing of this Misc. Criminal application Mr. D.K. Trivedi, the learned Public Prosecutor appearing for the State very rightly agreed that there is a delay of 58 days. When such a fact was pointed out to us, it may be stated that, at the very stage of the admission of this Misc. Criminal Application the matter was placed before my learned brothers G.T. Nanavati and V.V. Bedarkar JJ. and at the very stage of the admission of this Misc. Criminal Application, my both the learned brothers bad invited the attention of the learned Public Prosecutor to see that a proper affidavit is filed in the light of the reported decision of the Supreme Court in the case of Ajit Singh Thakur Singh and Another v. State of Gujarat : 1981CriLJ293 . After having made their suggestion to the State Public Prosecutor the matter was adjourned, and today the matter is kept before us for final disposal.
3. At the very outset of the bearing of this Misc. Criminal Application we requested Mr. D.K. Trivedi, the learned Public Prosecutor who argued the matter thoroughly and tenaciously, to point out to us from the affidavit filed by the State showing a good cause for us to condone the delay. At the very hearing of this Misc. Cri. Application we pointed out to Mr. Trivedi appearing for the State the following passage from the aforesaid reported decision of the Supreme Court.
Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay.
4. In the light of the aforesaid observations made by the Supreme Court, we requested Mr. D.K. Trivedi to point out to us the relevant averment from the affidavit so as to satisfy our conscience for condoning the delay. Mr. Trivedi read out before us the contents of the affidavit of Shri Sanjiv Misra, an I.A.S. Officer and Collector and District Magistrate, Kutch who in his affidavit state as follows:
That the copy of judgment of first criminal appeal No. 8/81 was received in my office on 19-9-1981 with District Government Pleader's opinion letter No. 955/ 81 dated 11-9-81. But copy of lower court's judgment was not available in my office investigation papers were also not available in my office as investigation was made by police. So it took time to get a copy of lower court's judgment and other relevant papers from police etc. After collecting these papers it also took some more time in studying and submitting papers through various channels in my office and hence delay of 58 days has occurred in taking decision regarding filing an appeal. In abort delay has occurred for want of lower courts judgment and other relevant papers of the case in my office and also because of office procedure. This delay may please be condoned.
5. Even though the aforesaid affidavit is filed by Mr. Sanjiv Misra who is an I.A.S. Officer and who is a dignified and respected officer of Circumspection, he has not stated in his affidavit as to when he got the judgment of the lower court. He has also not stated in his affidavit the period during which the investigation papers were not available to him. He has also not stated in his affidavit what time he took to get the lower court judgment and other relevant papers from the police. He has also not stated how much time he took in collecting all the aforesaid papers. He has also not stated in his affidavit how much time he took for arriving at a conclusion that appeal should be preferred against the impugned order of acquittal passed by the learned Sessions Judge. We have painfully read and noticed in the aforesaid affidavit of Mr. Sanjiv Misra, who holds a very high position and status in the public service and who is a respected and dignified officer of considerable circumspection, that the aforesaid necessary details are significantly missing. The Division Bench of this Court bad already requested the learned Public Prosecutor at the very stage of the admission of the Misc. Criminal Application that the necessary affidavit should be filed in the light of the judgment given by the Supreme Court in Ajit Singh's case (supra). Under the circumstances, we must say that in this case, the State has miserably failed in making out any case for condoning delay in filing the aforesaid Criminal Misc. Application. But we are conscious of the fact that heavy responsibility lies in dispensation of criminal justice, and hence, we are equally been to know the merits and demerits of the matter. He requested Mr. Trivedi to read out the contents of the judgment delivered by the learned Sessions Judge in Criminal Appeal No. 8 of 1981. It appears that the said appeal was directed by the accused persons of Criminal Case No. 1666 of 1980 of the court of the learned Chief Judicial Magistrate, Bhuj. The learned Chief Judicial Magistrate, Bhuj had convicted the accused in that case and hence the accused had filed an appeal in the Sessions Court. In that case the facts were as follows:
Certain quantity of cement bags was found from the godown alleged to be of the ownership of accused in that case. As required by the statutory provisions a search had to be carried out in presence of two panchas. Both the panchas have turned hostile. There was no other evidence on the record of the case save and except the evidence of the officer who conducted the said investigation to come to a conclusion that cement bags were found from the godown in question.
As the learned Sessions Judge found that both the panchas bad turned hostile to the prosecution, he acquitted the accused having accepted the appeal filed by the accused. In course of the judgment of the learned Sessions Judge even on the merits of the matter the learned Sessions Judge observed that there was no reliable and acceptable evidence to come to a conclusion as to whether the accused was the owner of the godown or tenant of the godown or how possession can be traced to the accused of the premises. Under the 'circumstances, the learned Sessions Judge acquitted the accused of this case.
6. After the aforesaid order of acquittal, the State was aggrieved by the order of acquittal passed by the learned Sessions Judge in Criminal appeal No. 18 of 1981 and filed Criminal appeal No. 1226 of 1981 which is filed late by 58 days.
7. Here we may say that we have satisfied our conscience, even on the, merits of the matter, that there was no substance in the State appeal. But the question that troubled us was whether we should condone the delay in filing Criminal Appeal No. 1226 of 1981 which is filed late by 58 days.
8. In view of what has been stated above, we must very frankly say that it is high time that the State should realise the seriousness of filing applications for getting the delay condoned, particularly when the Supreme-Court has directed this Court by delivering its judgment reported in the case of Ajit Singh's case (supra) : 1981CriLJ293 , not to condone the delay for reasons mentioned in the Supreme Court judgment.
As a result of the aforesaid discussion, we must reject this application filed by the State. We do not condone the delay in the present case. Hence Miscellaneous Criminal Application No. 46/82 fails and is rejected. The State Appeal automatically fails.
9. A copy of this judgment may be sent to the Legal Departments? as to see that the officer concerned files proper affidavit in future, particularly when applications for getting delay condoned are to be filed in this Court. Rule discharged in the delay application.