Condonation of delay in crl appeal against acquittal
Bal Kishan
(Querist) 08 March 2013
This query is : Resolved
Dear Sir,
Is condonation for delay in filing criminal appeal by Central Bureau of Investigation against my acquittal will be a mere formality ?
The Special Judge, in his judgment and order dated 2-6-2012 acquitted on merits and further held sanction illegal and investigation unfair and without mandatory written authorization. I am afraid I will be made to suffer for another spell of 10 years , if High Court condones the delay and grants 'leave to appeal' No. 207/ 2012 before High Court of Judicature at Jodhpur (Rajasthan)
Being defect case, the High Court has issued notice and is under despatch. I am likely to get soon may be within next week or so.
PLEASE GUIDE ME >>>>>>>
The detailed draft reply that I am going to submit before High Court is attached herewith for guidance
TIME LIMIT FOR APPEAL FROM AN ORDER OF ACQUITTAL IS GOVERNED BY ART 114 (A) OF LIMITATION ACT AND THOSE APPEALS MUST BE FILED WITHIN 90 DAYS – SUB-SECTION (5) OF S. 378 CR. P.C. HAS NO APPLICATION TO AN APPEAL BY STATE OR APPLICATION FOR ‘LEAVE TO APPEAL’ UNDER SUB-SECTION (3). – THIS APPEAL IS TIME BARRED – NO SUFFICIENT CAUSE FOR CONDONING OF DELAY – TRIAL JUDGE ORDERED ACQUITTAL OF RESPONDENT ON MERITS- SANCTION HELD ILLEGAL – ALSO HELD THAT INVESTIGATION WAS CONDUCTED WITHOUT MANDATORY WRITTEN AUTHORIZATION – MANNER IN WHICH INVESTIGATION CONDUCTED HELD UNFAIR – RESPONDENT OCCASIONED WITH MISCARRIAGE OF JUSTICE – WANT OF VALID SANCTION VITIATES EVERYTHING THAT FOLLOWS UP COGNIZANCE – HIGH COURT CANNOT PROCEED WITH APPEAL- IF STILL PROCEEDS, IT WILL BE AN EXERCISE IN FUTILITY AND NOT ONLY IN FUTILITY BUT WILL ALSO BE GREAT BURDEN ON PUBLIC EXCHEQUER AND WASTAGE OF TIME VERY MUCH IN PAUCITY OF COURTS CONCERNED –CONVICTION NOT SUSTAINABLE - APPEAL DESERVES SUMMARY DISMISSAL.
Regards
(Bal KIshan)
09868133143
NOTE : The learned Trial Judge while holding the investigation in the matter by I.O. without acquiring mandatory written authorsation under provision of Section 17 of the PC Act, has pointed out that UNDER SECTION 114 OF INDIAN EVIDENCE ACT, ADVERSE INFERENCES TO BE DRAWN AGAINST THE I.O. FOR NOT PRODUCING OR IGNORED TO PRODUCE THE DOCUMENT THROUGHOUT THE TRIAL PROCEEDINGS
.... The appeal has been preferred by CBI to shield officer its own officer ... and to take no notice of the Trial Judge's above point..
In the process I am going to be unnecessarily be harrased due to lengthy procedure of court proceedings of Hon'ble High Court..
I want to know how can I impress the High Court not to condone the delay in the light of that judgment of Trial Court wherein SANCTION BEING HELD ILLEGAL AND THE INVESTIGATION ALSO HELD UNFAIR . THE SANCTION BEING ILLEGAL MUST HAVE THE EFFECT OF VITIATING EVERYTHING THAT MAY FOLLOW UP THE COGNIZANCE AND THAT ACQUITTAL IN THE PRESENT MATTER CAN NO WAY BE REVERSED i.e. THE CONVICTION IS NOT SUSTAINABLE .... ??????????????????????????????????????????????????????????????????????????????????????????
Rajeev Kumar
(Expert) 08 March 2013
He Judges have own discretionary power to condon the delay in filing an appeal with the adequate cause and reason
Raj Kumar Makkad
(Expert) 08 March 2013
Generally if there are no convincing reasons leading to delay in filing the appeal, condonation is not made, however, even if the appeal is admitted, you need not to attend every hearing therein and it shall be mere a matter of argument on all he points discussed by lower court.
Bal Kishan
(Querist) 09 March 2013
Thank You Sirs for replies .. I want add as below :
The learned Trial Judge while holding the investigation in the matter by I.O. without acquiring mandatory written authorsation under provision of Section 17 of the PC Act, has pointed out that UNDER SECTION 114 OF INDIAN EVIDENCE ACT, ADVERSE INFERENCES TO BE DRAWN AGAINST THE I.O. FOR NOT PRODUCING OR IGNORED TO PRODUCE THE DOCUMENT THROUGHOUT THE TRIAL PROCEEDINGS
.... The appeal has been preferred by CBI to shield officer its own officer ... and to take no notice of the Trial Judge's above point..
In the process I am going to be unnecessarily be harrased due to lengthy procedure of court proceedings of Hon'ble High Court..
I want to know how can I impress the High Court not to condone the delay in the light of that judgment of Trial Court wherein SANCTION BEING HELD ILLEGAL AND THE INVESTIGATION ALSO HELD UNFAIR INASMUCH AS THE SANCTION BEING ILLEGAL MUST HAVE THE EFFECT OF VITIATING EVERYTHING THAT MAY FOLLOW UP THE COGNIZANCE AND THAT ACQUITTAL IN THE PRESENT MATTER BASED NOT ONLY ON THE ILLEGALITIES AND INFIRMITIES IS BASED ON MERITS AND CAN IN NO WAY BE REVERSED i.e. THE CONVICTION IS NOT SUSTAINABLE .... ????????????????????????????????????????????????????????????????????????????
Nadeem Qureshi
(Expert) 09 March 2013
Dear Querist
argue the matter before court and strongly object on limitation too, if court satisfied with your argue or objection the court have power to dismiss this appeal.
Bal Kishan
(Querist) 09 March 2013
Thanx Qureshi Sir !
I am very confident that the High Court cannot proceed with appeal because sanction being held illegal there are number of Supreme Court decision that lay down that if the court still proceeds the exercise will be futile and wastage of time and the reversal from acquittal into conviction is not sustainable .. but I am afraid High Court may still condone the delay for the fear of high profile CBI ... In that event of I will be made to suffer the endless post listing for date ... dates ... dates & dates
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 March 2013
Delay condoning is technical matter and in view of the section -5 of the Limitation act higher courts have held that matters should be decided on merits and so technical issues should not be over reached.
5.Extension of prescribed period in certain cases -
Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
The criminal Justice system gives right of appeal to the accused so to the complainant.You will have opportunity to contest the appeal on merits and all the issues you have to raise while hearing of appeal far which your are agitating now.
R.K Nanda
(Expert) 09 March 2013
no more to add.
Bal Kishan
(Querist) 09 March 2013
Thank You ADVOCATE DEFENSE & Nanda Sir , although I am greatly disappointed and feel that what is applicable in case appeal by poor public servant against his conviction should be treated leniently for condoning delay than the consideration in the matter of time barred appeal by State (UOI) against acquittal of poor public servant who has been acquitted by Trial Court after decade long trial proceedings ..
The law should not punish or harass a genuine and innocent individual at all costs . Law may some time let the criminal escape the wrath of law but should not inflict punishment on innocent. For that purpose delay may be condoned as a matter of right in appeal against conviction of individual or if complainant is aggrieved by the judgment. But should summarily dismiss appeal by State arising from order of acquittal of an individual.
So far Section 5 of Limitation Act, 1963 and explanation to the section is concerned bare reading of the aforesaid provision and the ‘explanation’ it is clear that certain cases of wrong interpretation of order, practice or judgment of the High Court for ascertaining or computing prescribed period only fall within the meaning of this section for consideration of extension of time for admission of any appeal or any application after the prescribed period.
The respondent submits that the appellant, Central Bureau of Investigation, was well aware and conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a leave petition in this Court. They cannot claim that they have a separate period of limitation. Considering the fact that there is no proper explanation offered except for the bureaucratic delay, the appellant has miserably failed to give any acceptable and cogent reasons of sufficient cause to condone the delay. Under these facts and circumstances, if delay is condoned it would be abuse of process of Court inasmuch as considering the huge pending cases, respondent will be compelled to undergo the mental agony of appeal proceedings which may take a decade to complete. This is exactly what the appellant have in mind while preferring the instant time barred appeal with an intent to perpetuate infliction of injury to the respondent.
And my case , it is manifestly obvious that CBI is appealing with mala fide intention to turn a blind eye to the judgment of Special Judge under appeal wherein the learned Trial Judge categorically pointed out that adverse inference under the sec 114 of Evidence Act may be drawn against I.O. being public functionary did not produce and ignored to produce the document in the Court and further held that investigation was unfair and sanction the sole basis of cognizance held illegal which strikes at the root of trial and has effect of vitiating everything that may follow up cognizance .. Should , I still have to go through long long mental agony of Court proceeding .. Is it not injustice by itself? .. Is there any way to get quick redressal by final argument on appeal within maximum 2 to 3 hearings ??? .. I want justice and I want peace :-)
DEFENSE ADVOCATE.-firmaction@g
(Expert) 10 March 2013
There are three types of judgments by criminal courts-
one- could not be proved.
two- proved and
three- proved false.
Unless the prosecution case is proved false you have to face all further stages.
Your case has been disposed on technicalities , it does not mean it is proved false. This is sufficient reason to admit appeal by HC.
Bal Kishan
(Querist) 10 March 2013
No,Sir ! My case has been decided after consideration of merits and all prosecution document and after oral evidences of all prosecution witnesses
... I have been acquitted by Special Judge after completion of trial proceedings and argument by both the parties with regard to charge under Sec. 13 (1) (e) read with 13 (2) of PC Act for alleged possession of disproportionate assets.. THE PROSECUTION CASE WAS PROVED FALSE.
In the judgment and order of Special Judge , while passing order of acquittal has also concluded that : (1) Investigation was without jurisdiction inasmuch as conducted without acquiring written authorization as per the mandatory provisions of Sec.17 of PC Act. The investigation was also held UNFAIR as the IO did not complete the essential ingredient for substantiating the charge .. He did not complete investigation of certain INCOME brought to the knowledge of CBI during investigation and withheld document and previous statement of witnesses supporting defence .. The sanctioning authority and the IO admitted that and could not produce if those document were indeed placed before sanctioning authority to apply mind before grant of sanction .. (2) The sanction issued was without application of mind and further since investigation was also unfair it has caused miscarriage of justice there fore sanction illegal and has the effect of vitiating everything
Illegality of sanction and illegality of investgation are over and above the acquittal on MERITs
Now the time bared appeal coming to perpetuate infliction of injury. There is stricture passed the trial court inasmuch it has made adverse remark against Investigation Officer of CBI , the learned Trial Judge pointed out for adverse inferences to be drawn against I.O. for ignored and not producing document claimed to be in possession of the IO. The IO being public functionary cannot ignore the Court, therefore, the Trial Judge categorically mentioned in one para of his judgment that under the provisions of 114 of Indian Evidence Act, adverse inferences may be drawn
.. This is very disturbing to CBI and for that with an intent to inflict injury to the respondnet by way of long appeal proceedings.
Regards
Bal Kishan
(Querist) 10 March 2013
Any advocate in Jodhpur (Rajasthan) who can get the speedy disposal of the appeal .. within ONE MONTH . I have full detail with strong legal provision for upholding the acquittal ordered by Special Judge that is being appealed for by CBI ?
