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CR.MA/997420/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9974 of 2008
In
CRIMINAL
REVISION APPLICATION No. 517 of 2008
==================================================
PURSHOTTAMBHAI
BHULABHAI MAKWANA - Applicant
Versus
NATVARBHAI
SOMABHAI PATEL AND ANOTHER - Respondents
==================================================Appearance
:
MR MUKTESH V PATEL for the
Applicant.
NOTICE SERVED for Respondent : 1.
MR AJ DESAI,
ADDITIONAL PUBLIC PROSECUTOR for Respondent :
2.
==================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 15/10/2008
ORAL
ORDER
1. Heard
learned Advocate Mr. M. V. Patel for the applicant and learned
Additional Public Prosecutor Mr. A. J. Desai for the respondent No. 2
– State. Though served, none appears for respondent No. 1.
2. This
is an application preferred under Section 5 of the Limitation Act for
condonation of delay of 4326 days caused in preferring Revision
Application under Section 397 read with Section 401 of the Code of
Criminal Procedure.
3. Learned
Advocate Mr. M. V. Patel for the applicant submitted that, after
pronouncement of judgment by the learned Additional Sessions Judge,
number of applications were preferred before the Legal Department,
requesting to file appropriate proceedings before the High Court but
the same was not considered and the delay was caused in preferring
the Revision Application. It is submitted that because of the
circumstances which were beyond the control of the applicant, he
could not file the Revision Application in time and as sufficient
cause is made out in the application, the delay requires to be
condoned.
4. Learned
Additional Public Prosecutor Mr. A. J. Desai representing the State,
while opposing the bail application, submitted that no reasons are
assigned by the learned Advocate in the application for condonation
of delay and as sufficient case is not made out for the inordinate
delay of 4326 days in preferring the Revision Application, the
present application does not call for any interference and the same
is liable to be dismissed.
5. I
have heard learned Advocate Mr. M. V. Patel for the applicant and
learned Additional Public Prosecutor Mr. A. J. Desai for the
respondent State at length and in great detail. I have perused
the averments made in the application, more particularly, the reasons
assigned in the application in paragraphs 1, 2 and 3 which are quoted
hereinbelow:-
(1) That
the petitioner is the original applicant who has filed the Criminal
FIR No. II-206/93 at the Police Station at Mahemdabad against accused
for the offences under Section 323, 504 and 114 of IPC and under
Section 3 (1) 10 of the SC / ST Prevention of Atrocity Act of 1989,
the said offences are committed by the accused No. 1 and his sons No.
2 & 3 who were serving in the school of accused No. 1. In the
said matter the Hon’ble Sessions Court acquitted the accused No. 1
and No. 2 and 3 were convicted by order dated 31.05.1996 in Sessions
Case No. 80 of 1993. In the case the legal department was submitted
many applications by the applicant to file the appeal against the
said judgment and the applicant was under that impression that the
Legal Department will file the appeal against the said order. But
the petitioner came to know on date 01.07.2008 in Criminal Appeal No.
442 / 96 before the High Court for final hearing that the State has
not filed the appeal. Hence the Criminal Revision Application is
filed against the said order and delay has happened from the date
31.05.96 to 01.07.96 for which the applicant is not responsible.
(2) The
applicant has submitted many applications to the Secretary of Legal
Department to file the acquittal appeal against the accused No. 1 and
an application for the sentences enhancement of the accused No. 2 and
3 in the order dated 31.05.1996 in Atrocity Session Case No. 80/93
order passed by the Hon’ble Court of Kheda. The application was
under that impression that the State will file the appeal in that
matter. Hence, he did file Criminal Revision Application against the
said order.
(3) The
said application dated 23.07.96, 24.09.96, 07.01.97 to the legal
department was submitted to file the appeal and the applicant made
personal approach, hence he did not file the appeal as shown above.
So the delay has happened for which the applicant is not responsible.
So it is required to condone the said delay and the Criminal
Revision Application may be kindly admitted.
6. Considering
the averments made in the application, the inordinate delay, in my
considered view, to the extent of 4326 days has not been properly
explained. The applicant ought to have filed the Revision
Application before the High Court instead of making entreaties to the
Secretary of the Legal Department to file the appeal.
7. It
is pertinent to note that Criminal Appeal No. 442 of 1996 filed by
Nileshkumar Natvarbhai Patel original accused No. 2 and another
is already pending before this Court for final hearing and disposal
wherein the learned Advocate has filed the appearance for the
original complainant and the present applicant.
8. The
learned Advocate for the applicant has referred to an article
published in Abhiyan Namami Devi Narmade, Issue
VIII dated 20-08-2000 in support of the submissions canvassed at the
Bar. Since the document is not part of the record, it cannot be
considered by this Court and it cannot be even taken on record of the
case.
9. In
view of the aforesaid facts and circumstances of the case, as the
application is devoid of merits, the same is liable to be dismissed.
Hence, it is dismissed. Notice discharged. The application stands
disposed of accordingly.
[H.
B. ANTANI, J.]
/shamnath
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