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CR.MA/4268/2007 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 4268 of 2007
In
CRIMINAL
APPEAL No. 680 of 2007
=========================================================
CHUDASMA
DHANLALSING LALDEVSINH - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
CHIRAG M PAWAR for
Applicant(s) : 1,
MS DS PANDIT, LD.APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
Date
: 13/07/2007
ORAL
ORDER
Heard
Shri Chirag M. Pawar, learned counsel appearing for the applicant
and Ms.D.S. Pandit, learned Additional Public Prosecutor, appearing
on behalf of the opponent-State.
Rule.
The formal service of notice of Rule is waived by Ms.D.S. Pandit,
learned Additional Public Prosecutor, on behalf of the
opponent-State.
Apparently,
this is a case of gross delay of 833 days in preferring appeal by
the applicant. Normally in a case of gross delay which cannot be
said to be very satisfactorily explained by the applicant, the Court
should not condone the delay for the sake of condoning it. But it is
also true that the approach of the Court in such cases should be
liberal and pragmatic. However, the backbone of the argument of Shri
Pawar is that this Court while dealing with the point of delay
should also consider the strength in the case of the applicant. It
is rightly submitted by Shri Pawar, learned counsel appearing for
the applicant, that if prima facie the case of the applicant is not
arguable at all and has very remote chances of success, then the
Court should not condone the delay for the sake of condoning it even
if the delay period is of much less than the delay caused in the
present case.
This
is a case of delay of 833 days in preferring appeal against the
judgment and order of conviction and sentence by the applicant. This
application has been received through Jail Authorities. It is
contended by the applicant that as he was not aware that he can also
get legal aid if he intends to prefer appeal, he could not prefer
appeal well in time. The Court has considered the nature of offence
which has been found proved by the learned trial Judge and the total
period of imprisonment imposed by the learned trial Judge. On plain
reading of the judgment and order of conviction and sentence and
without entering into the nature of evidence led during the course
of trial, it is possible to reach to a prima facie conclusion that
the applicant has comparatively a good arguable case and, therefore,
his appeal should not be thrown out only on the ground of delay.
Though
there is strong resistance from Ms.D.S. Pandit, learned Additional
Public Prosecutor, and it is submitted that the applicant is the
person responsible who had put the victim girl into a precarious
condition and the delay should not be condoned on the ground of
liberal approach and the Court should not be too liberal in dealing
with such applications.
The
Court is of the view that this is not a case of showing any leniency
to the applicant, but the Court is inclined to offer an opportunity
to the applicant so that he can convince the Court that there is
some strength in his case which has been placed before the Court by
way of the appeal. The person in prison is under some legal
impediment and basically when the applicant belongs to some other
State, he may have passed through a confused state of mind
considering the allegations which were made against him by the
prosecution.
So
accepting the submissions made by Shri Chirag Pawar, learned counsel
appearing for the applicant, the present application is hereby
allowed. The delay of 833 days in filing the appeal is hereby
condoned as prayed for. Rule is made absolute.
It
is submitted by Shri Chirag Pawar that this Court should take up the
admission hearing of the appeal today itself and as Ms.D.S. Pandit,
learned Additional Public Prosecutor, has no objection, the appeal
filed by the present applicant is taken up for admission hearing
today itself.
(C.K.
Buch, J)
Aakar
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