Gujarat High Court
Jethubha Dipsinh Solanki vs State Of Gujarat on 10 November, 2022
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/20395/2022 ORDER DATED: 10/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20395 of 2022
In
R/CRIMINAL MISC.APPLICATION NO. 20393 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 20399 of 2022
In
CRIMINAL MISC.APPLICATION NO. 20398 of 2022
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JETHUBHA DIPSINH SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MITTAL N PATEL(7614) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/11/2022
COMMON ORAL ORDER
1. The present applications have been filed for condonation of delay of 133 days caused in filing the Criminal Appeal.
2. Ms. Mittal N.Patel, learned advocate for the applicant submits that leave to appeal has been moved Page 1 of 5 Downloaded on : Thu Nov 10 21:23:52 IST 2022 R/CR.MA/20395/2022 ORDER DATED: 10/11/2022 against the order of acquittal, which has been passed in a case under Section 138 of the Negotiable Instruments Act, but to prefer leave to appeal, there has been delay of 133 days, since about four matters were instituted by the complainant and since in all the matters the accused have been acquitted. She submits that the applicant being from a village area and since was suffering from financial constraint after the assistance from the friends and relatives, he could make arrangements for funds to prefer appeal.
3. In the case of State of Gujarat vs. Koli Mohan Nanubhai and Others, reported in 1997 (1) GCD 890, the Division Bench of this Court has held that condonation of delay is essentially always a matter strictly between the applicant and the Court and the other side has indeed no business to claim to be heard at this stage.
4. In the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others Page 2 of 5 Downloaded on : Thu Nov 10 21:23:52 IST 2022 R/CR.MA/20395/2022 ORDER DATED: 10/11/2022 reported in AIR 1987 SC 1353 it has been observed as under :-
"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning- ful manner which subserves the ends of justice-- that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being Page 3 of 5 Downloaded on : Thu Nov 10 21:23:52 IST 2022 R/CR.MA/20395/2022 ORDER DATED: 10/11/2022 defeated. As against this when delay is con-
doned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
Page 4 of 5 Downloaded on : Thu Nov 10 21:23:52 IST 2022R/CR.MA/20395/2022 ORDER DATED: 10/11/2022
5. Considering the submissions and the averments made in the application and as the delay is sufficiently explained and in view of the facts and circumstances of the case, the delay of 133 days caused in filing the Criminal Appeals is condoned in both the matters. The applications are allowed.
6. Both the applications for leave to appeal be listed for hearing on 23.11.2022.
7. Office to keep copy of this order in Criminal Misc. Application No.20399 of 2022.
(GITA GOPI,J) Pankaj Page 5 of 5 Downloaded on : Thu Nov 10 21:23:52 IST 2022