(Prayer: Petition praying that in the circumstances stated therein and in the affidavit filed therewith the high Court will be pleased to condone the delay of 382 days in preferring an Appeal Crl.A.Sr.No.50914 of 2008 against acquittal against the Judgment in C.C. No.1425 of 2004, dated 3.08.2007 passed by the Hon?ble Magistrate Court No.VI, Salem and to allow this Appeal and set aside the Judgment and acquittal of the respondents/accused passed by the Judicial Magistrate Court No.VI, Salem No.142 of 2004, dated 30.08.2007 convict the Respondents/Accused for the offences framed against the respondents.)
The petitioners herein are the accused in C.C. No.142 of 2004, on the file of the Judicial Magistrate-VI, Salem, and they were acquitted by the Trial Court from the charges under Sections 39(1), 44(1)(c) of the Indian Electricity Act r/ Section 379, I.P.C., The date of Judgment was delivered by the Trial Court on 30.08.2007. Aggrieved by the said acquittal, the State has preferred an Appeal before this Court, but there is a delay of 382 days in preferring the Appeal. The Inspector of Police, Mallur Police Station, Salem District, also filed an affidavit in support of the Petition.
2. The learned Government Advocate (Criminal side) submits that an Application for obtaining the certified copy of the Judgment was made on 30.08.2007 and the copy of the Judgment was obtained on 14.11.2007 and thereafter a proposal was sent to the Government by the Police to prefer an Appeal. The Deputy Secretary to Government, Energy Department sent a proposal to the Office of the Public Prosecutor, High Court, Madras and it was received by the Public Prosecutor on 12.08.2008 and opinion was also given by the Public Prosecutor and thereafter Appeal was preferred and it was filed on 16.10.2008, and in the mean time, there had been a delay of 382 days.
The learned Government Advocate (Criminal side) also submitted that it is a fit case for preferring Appeal.
1. Notice was ordered and it was served to all the respondents.
2. On behalf of the respondents 3 and 5, learned Senior Counsel, Mr. Shanmughavelayutham appeared and submitted that each delay has not been properly explained in this case and the administrative delay without giving any reason should not be taken into consideration.
3. The learned Senior Counsel also relied on the decision of the Division Bench of this Honourable High Court in State, represented by Public Prosecutor v. Sivasamy and two others, 1991 LW (Crl.) 317 and also drew the attention of this Court to the order in State by Public Prosecutor v. K. Subramaniam and others, Crl.M.P. No.6316 of 1985 dated 24.11.1987.
4. This Court considered the submissions made by both parties and perused the affidavit filed by the Inspector of Police, Mallur Police Station, in support of the Petition seeking condonation of delay.
5. The Judgment was delivered by the Trial Court on 30.08.2007 and copy Application was immediately made on next day and it was also obtained on 14.11.2007. Thereafter, a proposal has been sent to the Government, i.e., to the Deputy Secretary to the Government, Energy Department and in turn the proposal was sent to the Office of the Public Prosecutor, High Court, Chennai on 12.08.2008. Within this period, i.e., from 14.09.2007 to 12.08.2008, 11 months had elapsed. In the affidavit, no detail is given as to why there had been a delay of 11 months and this delay of 11 months has not been explained by the Prosecution. From the Office of the Deputy Secretary to Government, Energy Department, no one has filed any affidavit explaining the delay as to why the matter was pending for 11 months.
6. A Division Bench of this High Court has observed in the order in Crl.M.P. No.6316 of 1985 dated 24.11.1987 as follows:
?The accused have been acquitted of the charge of murder and they have gained a valuable right by lapse of time and this right cannot be taken away by mere averment that the delay is due to administrative set up. The Government have been given an extended period of limitation and if they are not prepared to avail of that and want to seek a further time, it must be satisfactorily established that they have been prevented by sufficient cause in preferring the Appeal in time. That requirement has not been as established in this case. We do not therefore think that this is a fit case for condoning the delay.?
7. Following the above observation, it is held by the Honourable Division Bench of this High Court in the decision reported in State, represented by Public Prosecutor v. Sivasamy and two others, 1991 LW (Crl.) 317 as follows:
?6. Applying the ratio laid down in the above quoted decision to the facts of the case, it is seen that there is no explanation whatsoever for the delay in not filing the Appeal within the period of limitation, and in regard to the subsequent delay after the expiry of the period of limitation, lit is only stated that it was administrative delay without, giving any reason except stating the various dates when the file moved from the concerned authorities. The petitioner has miserably failed to explain the inordinate delay of 155 days. Though there is an averment that there is delay of 155 days on the part of the District Magistrate and Collector, Tiruchirappalli, in filing the Appeal, it has not been explained as to how the delay has occurred. As rightly pointed out in the counter, limitation is valuable right that would accrue to a successful party in a litigation and more so to an accuse
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d in a Criminal case who has been acquitted. For all these reasons, we have no hesitation in holding that the petitioner has miserably failed to explain the delay satisfactorily and as such the Petition deserves to be dismissed.? 8. This Court feels that there is enormous delay of 382 days in preferring the Appeal by State and the delay has not been satisfactorily explained, and sufficient cause has not been shown for not preferring the Appeal within the period of limitation. In the result, the Petition for condonation of delay stands dismissed. Consequently Crl.A.SR. No.50914 of 2003 is closed.