Cr. Revision No. 56/2016, M.P. No. 01/2016 and Cr. Revision No. 52/2016, M.P. No. 01/2016. Case: Rohit Kumar and Ors. Vs State of J&K. Jammu and Kashmir High Court

Case Number:Cr. Revision No. 56/2016, M.P. No. 01/2016 and Cr. Revision No. 52/2016, M.P. No. 01/2016
Party Name:Rohit Kumar and Ors. Vs State of J&K
Counsel:For Appellant: Anil Khajuria, Advocate
Judges:B.S. Walia, J.
Issue:Criminal Law
Judgement Date:March 02, 2017
Court:Jammu and Kashmir High Court
 
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Judgment:

B.S. Walia, J.

  1. This judgment shall decide Cr. Revision No. 52/2016, Cr. Revision No. 56/2016 & connected MP's on account of identical challenge in both petitions to the impugned orders condoning delay while entertaining appeal against acquittal on the ground that delay was condoned despite "Sufficient Cause" not having been established.

  2. Cr. Revision No. 52/2016 has been filed u/s. 435 of the Cr.P.C. and in the alternative u/s. 104 of the Constitution of J & K seeking quashing of order dated 17.08.2016 passed by the learned Principal Sessions Judge, Kathua in File No. 292/Criminal Misc., titled State through SSP Kathua Vs. Vikram Kumar on the ground that delay of 155 days had been condoned despite sufficient cause not having been established. Likewise, Cr. Revision No. 56/2016 has been filed u/s. 435 of the Cr.P.C. and in the alternative u/s. 104 of the Constitution of J & K seeking quashing of order dated 30.08.2016 passed by the learned Principal Sessions Judge, Kathua in File No. 279/Criminal Misc. titled State through SSP Kathua Vs. Rohit Kumar on the ground that delay of 229 days in filing a time barred appeal had been condoned despite sufficient cause not having been established.

  3. Brief facts of the case leading to the filing of Cr. Revision No. 52/2016 as per averments contained therein are that the petitioner was falsely implicated for the commission of offences u/S's. 279/304-A RPC and pursuant to registration of FIR and investigation in respect thereto, final report was presented before the Court, full-fledged trial was conducted in which the petitioner was acquitted of all the charges by the Court of the Learned Sub-Judge (Special Mobile Magistrate), Kathua vide judgment dated 30.05.2015. Appeal against acquittal was filed before the Court of the Learned Principal Sessions Judge, Kathua after the expiry of period of limitation along with an application for condonation of delay i.e. Annexure-C, whereupon the petitioner was summoned and in response to the application seeking condonation of delay, the petitioner filed a detailed response i.e. Annexure-D. After hearing arguments, the Learned Lower Appellate Court vide impugned order dated 17.08.2016 condoned delay of 155 days in late filing of the appeal.

  4. Impugned order dated 17.08.2016 has been challenged inter alia on the ground that the respondent had miserably failed to tender any justifiable cause for condonation of delay, sanction for filing appeal was granted by the Law Department on 20.01.2016, to explain the delay but no mention was made as to when the copy of the judgment was applied for and obtained, when sanction was applied for, how period of 12 days was consumed after receipt of sanction besides it was beyond comprehension as to why SSP Kathua would contact SSP Kathua after obtaining sanction for filing appeal, therefore, the application on the face of it was mala fide and an outcome of sheer negligence at all levels as such, no special latitude was permissible in the facts and circumstances of the case, petitioner had categorically stated that the copy of the impugned judgment was applied for and obtained on 23.12.2015 i.e., much after the expiry of the period of limitation but the impugned order was conspicuously silent on aforesaid aspect's, consequentially was palpably erroneous on account of adoption of an extremely liberal approach, although judgments relied upon had been referred to but the same had not been applied in the facts and circumstances of the case, thereby, the learned Lower Appellate Court had committed a material irregularity and illegality in condoning inordinate delay of more than 155 days especially where a right had accrued to the petitioner in respect of finality of the judgment of acquittal. As such the impugned order deserved to be set aside.

  5. In Criminal Revision No. 56/2016, the petitioner was proceeded against under Section 279/304-A RPC read with some other offences of the Motor Vehicles Act and after being subjected to a full-fledged trial was acquitted of the charges under Sections 279/304-A RPC but was convicted under Sections 146/196/130/177 of the Motor Vehicles Act by the Court of the Learned Sub-Judge (Special Mobile Magistrate), Kathua by virtue of judgment dated 01.04.2015. Appeal was filed before the Court of the learned Principal Sessions Judge, Kathua after the expiry of the period of limitation along with an application for condonation of delay whereupon the petitioner was summoned, filed a detailed response to the application seeks condonation of delay of 190 days (wrongly written as 229 days) opposing condonation of delay on the grounds that although the sanction for filing an appeal was granted by the Law Department on 30.11.2015 but it was nowhere stated as to when the sanction was applied for, when the copy of the impugned judgment was obtained, there was no explanation as to how the period of 47 days time thereafter was consumed, that the aforementioned aspect of the matter had not been considered by the learned Lower Appellate Court, that although the SSP Kathua was the applicant himself, it was beyond comprehension as to why the SSP Kathua would himself contact himself for requisite assistance for filing of the appeal and in the process, occasion delay of more than one month in getting the requisite information, that the learned Lower Appellate Court had adopted a very liberal approach without taking into account the factual aspects of the matter...

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