Bombay High Court
The State Of Maharashtra vs Pandit Ganpat Tare And Ors. on 5 April, 2003
Equivalent citations: 2003CRILJ4712, 2003(4)MHLJ540
Author: S.S. Parkar
Bench: S.S. Parkar, S.K. Shah
ORDER S.S. Parkar, J.
1. This application is filed for setting aside the conditional order dated 16th April 2002 and for restoring criminal appeal on file and to permit the applicant-State to file application for condonation of delay in filing the appeal. This matter and many other such matters bring to fore the callousness and irresponsible way in which the office of the Public Prosecutor, High Court, Bombay is functioning.
2. Against the Judgment and Order dated 28th September, 2001 delivered by IV Additional District & Sessions Judge, Thane in Sessions Case No. 177 of 2001 acquitting three accused persons of the offence of murder under Section 302 of IPC, the State had presented appeal in this Court belatedly without filing even the application for condonation of delay which is required under law. The memo of the appeal is undated. From the proceeding we are unable to know the date on which this appeal came to be filed. Only thing we know from the proceeding is that there was delay of about 38 days in filing this appeal. When the office put up the matter for orders for not removing the objections, the note mentioned that here was delay of 58 days in filing this appeal. Anyway as the said objection was not removed inspite of the fact that the matter must have been notified for removal of the objections as per the practice followed by the office of the Criminal Department, High Court, Bombay, the appeal came to be placed before the Division Bench for orders on 16th April 2002. On the said date the Division Bench (Coram: G.D. Patil and D.B. Bhosale, JJ.) passed the following order:
"P.C.:
There is a delay in filing of the Appeal. The application for condonation of delay involved in filing of the Appeal is, however, not filed along with the Appeal and thereafter also till date. Hence, three weeks time is granted for enabling the appellant to file application for condonation of delay.
In case such an application is not filed within the aforesaid period, the Appeal shall stand dismissed without reference to the Court.
The other objections, if any, be also removed within the aforesaid period."
At that time the State was represented by an APP. Inspite of the aforesaid order no action was taken for filing the application for condonation of delay, and, therefore, naturally as a matter of course and pursuant to the conditional order passed by this Court on 16th April 2002 the appeal met its fate of being dismissed for default. The endorsement made by the office shows that the criminal appeal came to be dismissed for non prosecution on 3rd June 2002.
3. The office of the Public Prosecutor, High Court, Bombay woke-up from its deep slumber as late as 29th August, 2002 when an application for setting aside the order of dismissal was made. The said application is affirmed by one S.V. Patil, Supervisory Senior Clerk, Criminal Branch in the office of the Public Prosecutor, High Court, Bombay. What is more astonishing and flabbergasting is that the said application, which is verified on solemn affirmation, contains incorrect and wrong averments. In para 3 of the said application it is stated that "on 16.4.2002 the appeal was notified for orders before the Hon'ble Justice V.K. Tahilramani and 8 weeks time was granted conditionally to file the Criminal Application for condonation of delay". No conduct on the part of the Law Officer could be more irresponsible and deprecatable then to make such incorrect and wrong statements in the application which has been verified on solemn affirmation. The conditional order was passed by the Division Bench of this Court consisting of Justice G.D. Patil and Justice D.B. Bhosale and not by Justice V.K. Tahilramani as stated in the application. Next, the conditional order was passed giving three weeks time to file application for condonation of delay and not 8 weeks' time as stated wrongly. The three weeks' time from 16/4/2002 can never by any calculation expire on 11th June 2002, as stated in paragraph 3 of this application. The said application also mentions that Criminal Application No. 2609 of 2002 was filed on 24/7/2002 for condonation of delay.
4. From what has been stated hereinabove it is evident that the office of the Public Prosecutor, High Court, Bombay is acting absolutely irresponsibly in the matters of the State. Only recently, by our order dated 10/3/2003, we had brought to the notice of the Principal Secretary, Law & Judiciary Department, Government of Maharashtra, by asking him to personally remain present in our court, the irresponsible and lackadaisical way in which the applications for condonation of delay have been filed by the office of the Public Prosecutor in this Court, pursuant to which the Law Secretary has filed affidavit in this court pointing out the measures which have been taken to hold the concerned Law Officers responsible for negligence on their part.
5. This case and 19 other such cases which have been placed on our today's board demonstrate the irresponsible way in which the office of the Public Prosecutor, High Court, Bombay is functioning. It is trite and elementary to mention that when there is a period of limitation prescribed by law to file an appeal, an appeal cannot be filed unless the delay in filing the appeal is condoned by the Court. As a necessary consequence thereof a party has no right to file an appeal unless the delay in filing the appeal is condoned by the court and the delay cannot be condoned by the court unless the court holds that there was sufficient cause for not filing the appeal in time. As we know, so far as the State is concerned, this Court has always been liberal in condoning the delay in filing the appeal, whether under Criminal or Civil Jurisdiction. That does not mean that the State should be allowed to file appeal even in criminal case without first applying for condonation of delay and getting the said delay condoned by this Court.
6. We have noticed that all criminal appeals filed in this court are registered and given appeal numbers as soon as the appeals are presented to the office of this Court irrespective of whether there is delay in filing the appeal. In most of the cases filed by the State, there is gross delay in filing the appeal. After the appeals are registered the office raises objection that there is delay and, therefore, application is required to be filed for condonation of delay. What we find is that inspite of the office notifying the objections, including non filing of the application for condonation of delay, the office of the Public Prosecutor, High Court, Bombay invariably does not take notice of those objections. When the objections are not removed within the given period for removal of objections, the office places the matter for orders before the Court. That is how this matter was placed before the Division Bench of this Court on 16th April 2002 and the Bench was pleased to pass conditional order which is quoted above. But the said direction or order of the Division Bench passed on 16th April 2002 was not complied with by the office of the Public Prosecutor, High Court, Bombay and hence the appeal stood dismissed. The present application ultimately was filed as late as 29th August, 2002 containing absolutely irresponsible and incorrect statements as mentioned earlier. It would only require the court to go out of its way to condone aforesaid lapses which are pointed out hereinabove. If the court has to allow such applications in the larger interest of the public or society it an only be done at the risk of deviating from the norms set by the law for condoning the delay in filing the appeals.
7. When the office was asked as to how come the appeals are registered and numbered even when there is a delay in filing the appeals which is not condoned and the appeals are not even accompanied by an application for condonation of delay, Rule 5 of Chapter XXVI of the High court Appellate Side Rules was brought to our notice, which states as follows:
"Immediately on the presentation of any criminal proceeding in this Court by an Advocate, or party in person, or on receipt of the same through jail, or otherwise, it shall be entered in the appropriate register subject to office objections, if any. Entries in the registers shall be made serially according to the dates on the presentation or receipt."
8. We are told that because of this rule in the Bombay High Court Appellate Side Rules the office is obliged to register the appeal and number it as soon as it is lodged or presented to the office of this Court. The said rule is in contradistinction to Rule 7 contained in Chapter V of the aforesaid Rules which pertains only to the appeals filed in civil matters. The said Rule reads as follows:
"Where all office objections are removed within the time prescribed by Rule 3 or the delay has been excused under Rules 5 or, the office shall take orders from the Assistant Registrar for admission of the matter to the file after which the matter shall be immediately entered in the appropriate register. Such matter shall be entered in the register and shall be numbered in accordance with the serial number of sequence of the entries in the register."
9. We are of the view that when Section 378 of Cr.P.C. mandates that no appeal against the order of acquittal shall be entertained by the High court after the expiry of prescribed period of limitation, Rule 5 of Chapter XXVI of the High Court Appellate Side Rules is inconsistent with the above provision of Cr.P.C. We feel that the office of the Public Prosecutor, High Court, Bombay may have become indifferent in filing the applications for condonation of delay partly because the appeals are registered and numbered, as soon as they are presented, by virtue of aforesaid Rule 5 of Chapter XXVI of the High Court Appellate Side Rules.
10. As pointed out earlier, when Section 378 of Cr.P.C. mandates that this Court shall not entertain appeals after the expiry of the period mentioned therein, such appeals should not be registered or numbered unless this court condones the delay on an application that may be made in that behalf by the appellants as per the law which permits such condonation of delay.
11. In view of the above, we think it is desirable and expedient that the necessary steps are taken for amending Rule 5 of Chapter XXVI of the High Court Appellate Side Rules and bring it in line with Rule 7 of Chapter V relating to the filing of the appeals in civil matters so that it is consistent with Section 378 of Criminal Procedure Code.
12. So far as the present application is concerned, in our opinion, to allow such application, despite the wrong statements made in the application verified on solemn affirmation, would be to violate the judicial conscience of this court.
13. In the result, this application is rejected in limine.
Registrar, High Court (Appellate Side), Bombay is directed to issue notice to Shri S.V. Patil, Supervisory Senior Clerk, Criminal Branch, office of the Public Prosecutor, High Court (A.S.), Mumbai to show cause why action should not be taken for perjury against him for making false statements on affidavit.
Registrar, High Court (Appellate Side), Bombay to sent the copies of this order to the Hon'ble Law Minister, Government of Maharashtra and to the Principal Secretary, Law and Judiciary Department, Government of Maharashtra for information and for taking necessary action/steps in such matters.
After hearing the matter when the dictation of the order commenced, Ms. S.R. Kumbhat, APP withdrew her appearance in the matter.