K.L.Sharma - (1.) THIS is an application under Section 378 (3)t Cr. P.C. for leave to appeal against the judgment and order dated 29.10.1992 passed by Sri R. N. Awasthi. Special Judge, Unnao in Criminal Trial No. 15/1991, under Section 3/7 E. C. Act, P. S. Purwa District Unnao. On account of delay in filing of this appeal, an application under Section 5 of Limitation Art for condonation of delay has also been filed. At the time of the hearing of these applications Sri J. P. Singh,' the learned counsel for the accused/respondents appeared and opposed both the applications.
(2.) I have heard Sri Abdul Mateen, the learned Additional Public Prosecutor for the State as well as Sri J. P. Singh the learned counsel for the accused/respondents and perused the record. The learned Additional Public Prosecutor had contended that the delay in filing of the application for leave to appeal has been fully explained in the affidavit of Sri Ganga Prasad and as such, the application for condonation of delay be allowed. In reply it has been submitted by Sri J. P. Singh, the learned counsel for the accused/respondents that a perusal of paragraph 2 of the affidavit of Sri Ganga Prasad clearly shows that every day's delay has not been explained and no explanation has been given as to why the application for certified copy of the judgment was applied on 2.1.1993 when the criminal trial was decided on 29.10.1992. The learned counsel further point out that the copy of the Judgment was ready on 22.1.1993 but its delivery was taken on 312.1993. He further pointed- out from paragraph 7 of the affidavit that the judicial department had given the sanction for filing of the appeal on 24.2.1993 and again, more than one year was wasted by the Government Advocate, High Court Lucknow Bench in preparing and filing the appeal before this court as late as on 17.4.1993.1 find substance in the contention raised by the learned counsel for the accused/respondents that there has been no explanation for delay in applying (for the certified copy of the judgment and in preparing and filing the appeal after one year. The learned counsel for the respondents has cited a decision rendered by me in the case of State of U. P. v. Dr. K M. Bahal 1994 (12) ICD 315 In which it has been held that every day's delay has not been satisfactorily explained and the delay cannot be condoned. He has further cited a decision of this Court in Hausla Prasad v. Ram Shabdh and thirteen others, 1387 SCr B page 151. In this case, the delay of 20 days before the period of limitation was not explained and consequently, the delay condonation application was rejected. He has further cited a decision of the Hon'ble Supreme Court in the case of AJit Singh Thakur Singh and another v. State of Gujarat, (1981) SC 733. This, was also, an appeal against the acquittal in a murder case filed after expiry of limitation. The delay committed prior to expiry of limitation was not explained satisfactorily and the Hon'ble Supreme Court did not approve of the condonation of delay allowed by the High Court.
(3.) IN the present case it is established that the delay occurring prior to the expiry of the limitation has not been explained at all and the delay committed after the expiry of the limitation for over a year, has also not been explained. The delay committed in the office of the Government Advocate or in the office of the District Magistrate Unnao, has also not been explained at all. Therefore, there is no question of condonation of delay in filing of appeal. The application under Section 5 of Limitation Act is, therefore, rejected. The learned Additional Public Prosecutor submitted that the delay can be excused if the merits of the appeal convinced this Court about the incorrectness of the judgment recorded by the Speclial Judge. Therefore, the judgment should be perused in order to find out whether the merits of the appeal deserve consideration of the High Court. I do not feel persuaded by this argument for the simple reason that if the State has itself failed to prosecute its case with due diligent, care and caution, this Court cannot show such an indulgence to the State where by efflux of time after expiry of the prescribed period of limitation, a valuable right has accrued in law in favour of the accused/respondents and the judgment of the acquittal has become final between the State and the accused/respondents. The accused/respondents after having been acquitted by the court, cannot be subject to such uncertainty and a whim of the State. The law of limitation extinguishes the right of a party who sleeps beyond the prescribed period of limitation in a specific action. Therefore, this; Court is not inclined and cannot accept to the explanation of the learned Additional Public Prosecutor.;