1964 (3) TMI 138 - HC - Income Tax

Summary

Issues Involved:
1. Acquittal of the accused.
2. Preliminary objection regarding the appeal being barred by time.
3. Condonation of delay in filing the appeal.
4. Distinction between the State and a private litigant in the context of delay.

Issue-wise Detailed Analysis:

1. Acquittal of the accused:
The respondents were charged with the offence of committing murder under Section 302 read with Section 34 of the Indian Penal Code. The Sessions Judge acquitted the accused on the grounds that they acted in self-defense when the deceased assaulted accused 1 with a "merge," giving rise to a reasonable apprehension of death. The State appealed against this acquittal.

2. Preliminary objection regarding the appeal being barred by time:
At the commencement of the hearing, the counsel for the respondents raised a preliminary objection that the appeal was barred by time and that the State had not shown sufficient cause for condoning the delay. It is well-settled that before an appeal under Section 417 of the Code of Criminal Procedure can be decided on merits, the court must determine whether the appeal is filed in time and if there is any delay, whether such delay should be condoned.

3. Condonation of delay in filing the appeal:
The State filed an application under Section 5 of the Limitation Act, supported by affidavits, for condonation of delay. The delay was condoned and the appeal admitted without notifying or hearing the respondents. The Privy Council in Krishnaswamy v. Ramasami stated that it is open to the respondent to raise the question of limitation at the time of the final hearing of the appeal. The respondents' objection was not considered belated as the appellant had not incurred any expenses for preparation of the records, distinguishing this case from the Madras High Court decision in Murugappa Naicker v. Thayammal.

4. Distinction between the State and a private litigant in the context of delay:
The appellant argued that the court should make a distinction between the "State" and a "Private Litigant" and construe "sufficient cause" liberally for the State. However, the court held that the language of the statute does not justify any discrimination between the State and the subject. The Supreme Court in Union of India v. Ram Charan stated that there is no question of construing "sufficient cause" liberally for the Government. The Assam High Court in State of Assam v. Haji Habib and the Allahabad High Court in State of Uttar Pradesh v. Christopher Tobit supported this view.

The court found that even if the delay up to 9-7-1963 due to misplacement of the file was accepted, the delay between 9-7-1963 and 24-7-1963 was not satisfactorily explained. The affidavit of the Under Secretary did not disclose any satisfactory reason for this inordinate delay. The court concluded that the appellant had not shown sufficient cause for the condonation of delay in filing the appeal.

Conclusion:
The appeal was dismissed in limine on the ground that it was filed beyond the prescribed period of limitation. The court emphasized that the appellant had not shown due diligence in dealing with the matter after tracing the misplaced file, and thus, the delay could not be condoned.