Gujarat High Court
Kaushikbhai Navnitrai Dani vs State Of Gujarat & on 4 August, 2014
Author: G.B.Shah
Bench: G.B.Shah
R/CR.MA/15270/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CONDONATION OF DELAY) NO.
15270 of 2012
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KAUSHIKBHAI NAVNITRAI DANI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR. KANJIBHAI M BHUT, ADVOCATE for the Applicant(s) No. 1
MR HARSHAD K PATEL, ADVOCATE for the Respondent(s) No. 2
MR.K.L.PANDYA, APP, for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 04/08/2014
ORAL ORDER
1. Heard Mr.Kanjibhai M.Bhut, learned advocate for the applicantoriginal complainant, Mr.Harshad K. Patel, learned advocate for respondent No.2original accused and Mr.K.L.Pandya, learned Additional Public Prosecutor, for the respondent No.1State.
2. Mr. Kanjibhai M. Bhut, learned advocate for the applicantoriginal complainant submitted that the applicantoriginal complainant had preferred Criminal Case No.1196 of 2006 against the respondent No.2original accused under Section 138 of the Negotiable Instrument Act, 1881 before the learned Additional Judicial Magistrate First Class, Mahuva, whereby the learned trial Judge vide impugned judgment and order dated 31.08.2010, acquitted respondent No.2original Page 1 of 7 R/CR.MA/15270/2012 ORDER accused from the charges levelled against him.
Being aggrieved and dissatisfied with the said judgment and order, the applicantoriginal complainant had preferred Criminal Appeal No.31 of 2010 before the Sessions Court, Bhavnagar, as per the advice given by the learned advocate. The said appeal has been dismissed for want of jurisdiction by the learned Sessions Judge, Bhavangar vide judgment and order dated 10.09.2012 and hence, the applicantoriginal complainant has preferred the Criminal Misc. Application No.15268 of 2012 (For Leave to Appeal) under Section 378(4) of the Criminal Procedure Code, 1973 before this Hon'ble Court alongwith application for condonation of delay of 745 days occurred in preferring the application for Leave to appeal, explaining the reasons in paras 5 and 6.
3. Mr. Kanjibhai M. Bhut, learned advocate for the applicantoriginal complainant placed reliance on following citations: (1) AIR 1972 SC 479 between State of West Bengal Vs/. Administrator, Howrah Municipality.
(2) AIR 1985 SC 1669, between Vijay Kumar Rampal and others, V/s. Diwan Devi and others (3) 1996(1) GLR 574, between Harishbhai Page 2 of 7 R/CR.MA/15270/2012 ORDER Chunilal Shah V/s. Anilkumar Champaklal Shah
4. Mr.Harshad K. Patel, learned advocate for respondent No.2original accused vehemently objected by filing affidavitinreply dated 28.06.2013. He further submitted that it is a deliberate act on the part of the applicant original complainant to choose the wrong forum just to harass the present respondents and to prolong the proceedings. Therefore, the present application may not be allowed considering the huge delay of 745 days occurred in filing the application for Leave to appeal against the impugned judgment and order passed by the learned Sessions Judge. He then submitted that in the Criminal Appeal No.31 of 2010, after filing his appearance, the respondent No.2 has also filed the affidavitinreply and raised the contention that the applicantoriginal complainant has chosen wrong forum and proceeded further rather than withdrawing the same and hence, considering the said conduct of the applicantoriginal complainant, no leniency is required to be shown while deciding the present application.
5. Mr.Harshad K. Patel, learned advocate for respondent No.2original accused placed reliance on the following citations: (1) 2007 (4) GLR 3484, between, Horns P. Limited and others V/s. Kapadvanj Page 3 of 7 R/CR.MA/15270/2012 ORDER Nagarpalika and Others.
(2) 2013 (1) GLR 518, between Petro Polyols
Limited and others V/s. Gujarat
Industrial Development Corporation.
(3) 1996(1) GLR 574, between Harishbhai
Chunilal Shah V/s. Anilkumar
Champaklal Shah and others.
6. I have considered the above referred submissions made by the learned advocates for the parties. So far as litigation is concerned, the litigant has to act as per the advice given by the advocate. It appears that within the stipulated time, the applicant herein has preferred the Criminal Appeal before the Sessions court (which was the wrong forum) on the advice given by the concerned advocate. Though, it is the fact that in the reply, the respondent No.2 herein has taken the objection, it is natural that respondent No.2accused No.2 wanted to see the result of the Appeal filed under the wrong advice of the advocate, which was dismissed by the learned Sessions Judge for want of jurisdiction. The grounds referred herein above as well as narrated at length in the application appear just and proper more particularly, because the litigant has to act as per the advice given by advocate and accordingly, the delay of 745 days has been occurred.
7. I have carefully gone through the case laws Page 4 of 7 R/CR.MA/15270/2012 ORDER cited by the learned advocate for the respondent No.2original accused No.2. In my view, facts of those cases are different from the facts on hand and hence, the same are not applicable to the case on hand.
8. Considering the facts of the case, it would be relevant to refer the decision of Hon'ble Apex Court in the case of Tukaram Kana Joshi and Ors. The Power of Attorney Holder V/s. M.I.D.C. and Ors., reported in, AIR 2013 SC 565, more particularly para Nos.10, 11 and 12, which read as under:
10 .....There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.
11. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain Page 5 of 7 R/CR.MA/15270/2012 ORDER length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable.
12. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches.
Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the petitioners.
9. Applying the above ratio to the facts of the present case, I am of the opinion that matter should not be thrown on technical ground but should be decided on merits. Under the circumstances, in the interest of substantial justice, the application is allowed. The delay of Page 6 of 7 R/CR.MA/15270/2012 ORDER 745 days that has occurred in filing the application for Leave to appeal against the judgment and order dated dated 31.08.2010 passed by the learned Additional Judicial Magistrate First Class, Mahuva, in Criminal Case No.1196 of 2006, is condoned. Rule is made absolute, accordingly.
Leave to Appeal is adjourned to 21st August 2014.
(G.B.SHAH, J.) siddharth// Page 7 of 7