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CR.MA/9302/2010 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9302 of 2010
In
CRIMINAL
APPEAL No. 1371 of 2010
=========================================
JAYABEN
@ RAJESHARIBEN W/O KISHAN @ KISHOREBHAI SOJITRA & 1
Versus
STATE
OF GUJARAT
=========================================
Appearance :
MR. VIRAL
VYAS for MR ASHISH M DAGLI for Applicant(s) :
1 - 2.
MR. L.B.DABHI, APP for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 16/08/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
RULE.
MR.
L.B.Dabhi, learned APP appears and waives service of notice on
behalf of the Respondent State of Gujarat.
By
means of filing this application under Section 5 of the Limitation
Act, 1963 (‘the Act’ for short), the Applicant accused has
prayed to condone delay of 215 days caused in filing the Criminal
Appeal No. 1371 of 2010, which is directed against the judgment and
order dated 29.10.2009 rendered in Sessions Case No.90 of 2004, by
the learned Additional Sessions Judge and Presiding Officer, Fast
Tracks Court No.2, Jamnagar, by which the Applicant Appellant
No.1 (original accused no.1 Jayaben) has been convicted for the
offences punishable under Section 489C of the Indian Penal Code and
sentenced to suffer RI for 5 years and fine of Rs.10,000/- and in
default of payment of fine, further SI for 4 months, whereas
Applicant Appellant No.2 (original accused no.2 Kishan) has
been convicted for the offences punishable under Sections 489A,
489B, 489C and 489D of the Indian Penal Code and sentenced to suffer
RI of 10 years, RI for 10 years, RI for 7 years and RI for 10 years
respectively and total fine of Rs.40,000/- with usual default
clause.
The
reasons as to why the appeal could not be filed in time are detailed
in paragraph 2 of the application, wherein inter alia it is stated
that the Applicants are in jail from the date of their arrest, i.e.
at pretrial stage. They have got three daughters residing at Rajkot
. The entire case papers, copies of evidence and documentary
evidence were with the Advocate on record. The Applicants could not
get back the case papers from the Advocate of the trial Court,
except the copy of the judgment of conviction and sentence. Besides
this, it is also asserted that Applicant Appellant No.2
(original accused no.2) is suffering from various ailments of
Prostate and she is provided treatment in jail and therefore the
Applicants could not approach the Advocate. However, with the help
of one of the prisoners, they contacted the Advocate who instructed
to file Appeal, and therefore, delay has been caused. It is
therefore, prayed that the delay may be condoned. Besides this, it
is also asserted that the Applicants have a good prima facie and
meritorious case in their favour.
Having
considered the submissions advanced by Mr. Viral Vyas, learned
Advocate for the Applicants and Mr. Mr.L.B.Dabhi, learned APP, for
the Respondent State of Gujarat and a perusal of the averments
made in the Application which have remained uncontroverted, and also
considering the celebrated principles governing the discretionary
exercise of power conferred under Section 5 of the Act so also the
reported decisions of the Hon’ble Supreme Court construing Section 5
of the Act liberally, we are of the considered opinion that delay
caused in filing the appeal has been aptly, elaborately and
sufficiently explained. The record does not indicate that there was
inaction or negligence on the part of the Applicants in prosecuting
the appeal. The Applicants have never abandoned the lis. The
explanation offered for condonation of delay is not only plausible,
but acceptable. In the aforesaid view of the matter, since there was
sufficient cause which prevented the Applicants in filing the Appeal
in time, application deserves to be allowed by condoning the delay
as prayed for.
For
the foregoing reasons, the application succeeds and accordingly it
is allowed. Delay of 215 days caused in filing the appeal is
condoned. Rule is made absolute.
(A.M.KAPADIA,
J.)
(J.C.UPADHYAYA,
J.)
Jayanti*
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