Sikandar Alias Joni Hasambhai ... vs State Of Gujarat

Order in Criminal Appeal Admit. The learned A.P.P. waives service of notice of admission for the respondent - State.

Order in Criminal Misc. Application No.3405/2019

1. Rule. The learned A.P.P. waives service of Rule for the respondent - State.

2. The present application under Section 5 of the Limitation Act, 1963 ("the Act" for brevity) has been preferred by the applicant for condonation of delay of 8 days caused in filing the Criminal Appeal against the order dated 15.11.2018 passed by the learned 4th Additional Sessions Judge, Rajkot in Sessions Case No.79 of 2014.

R/CR.A/451/2019 ORDER

3. Reasons for delay caused in preferring the appeal are narrated in paras 2 and 3 of the application.

4. The words, "Sufficient cause for not making application within the period of limitation" should be applied in a reasonable and liberal manner depending upon the facts and circumstances of the case and the type of the case. The expression "sufficient cause" in section 5 of the Act needs liberal construction so as to advance substantial justice when the delay is not on account of any negligence or inaction or want of bona fide or dilatory tactics on the part of the applicant. In nutshell, the decisive factor for condonation of delay is not length of delay but sufficiency and satisfactory explanation. Since there is nothing on record so as to infer inaction or want of bona fide that can be attributed to the applicant, the applicant cannot be non-suited at threshold and thus, cannot be deprived of substantial justice which has been made available to the applicant by way of statutory appeal. In order to advance substantial justice to the applicant and as the explanation for delay does not smack mala fide, the delay caused in preferring the appeal is hereby condoned. The application stands disposed of. Rule is made absolute to the aforesaid extent.

Order in Criminal Misc. Application No.1 of 2019

1. Rule. Learned A.P.P. waives service of Rule for the respondent - State.

2. Heard submissions made at bar.

3. This is a case where, the applicant is convicted by the learned trial Court for the offence punishable under Section Page 2 of 3 R/CR.A/451/2019 ORDER 304(II) of the Indian Penal Code and sentenced for R.I. for 10 years and to pay fine of Rs.3,000/-, in default, further R.I. for 1 month. The applicant has filed appeal before this Court which came to be admitted. As on date, the applicant has suffered sentence of about 5 years and 2 months.

4. Upon considering the submissions made at bar, it appears that the applicant is required to suffer the sentence imposed upon him. As applicant sentenced for a fixed period and the appeal is not likely to be heard in near future, present application for suspension of sentence can be considered in view of the decision rendered in case of Bhagwan Rama Shinde V/s. State of Gujarat (1999)4 SCC 421 as there are no exceptional circumstances pointed out by the learned A.P.P. to refuse/decline the application. No any past conviction is reported to the Court.

5. Therefore, pending appeal, judgment and order of sentence imposed upon the applicant dated 15.11.2018 passed by the learned 4th Additional Sessions Judge, Rajkot in Sessions Case No.79 of 2014. is hereby suspended and the applicant shall remain on bail pending hearing of the appeal on conditions to (i) furnish bail bond of Rs.20,000/- to the satisfaction of the learned Sessions Court concerned, (ii) attend hearing of the appeal regularly and (iii) pay the fine amount within 7 days from today, if not paid till date.

6. Accordingly, present application is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(S.H.VORA, J.) Hitesh Page 3 of 3