Bom HC | Prosecuting of remedy before wrong forum due to incorrect opinion given by Director of Prosecution held covered under S. 470 CrPC, delay in filing appeal condoned

Bombay High Court: Prithviraj K. Chavan, J. allowed an application whereby the State of Goa sought condonation of 156 days’ delay in filing the appeal against the acquittal of the accused-respondent.

S.R. Rivankar, Public Prosecutor, appearing for the State, submitted that as per the opinion was given by the Director of Prosecution, the impugned order passed by the Magistrate was challenged before the Sessions Judge along with an application for condonation of delay. It was objected to by the respondent as regards its maintainability before the said Court. Consequently, the prosecution moved an application for withdrawal of the appeal on with liberty to file the said appeal before the High Court. The Sessions Judge on the same day permitted the prosecution to withdraw the appeal. Thereafter, the file was circulated in the Department and the matter was finally allotted to the Public Prosecutor. As such, it was contended that the State was prosecuting its remedy with due diligence before a wrong forum, inadvertently, and therefore, the delay need be condoned.

Per contra, H. Gopi, Advocate for the respondent stated,  that there was no sufficient cause for condonation of delay, as the prosecution was required to explain delay before each and every officer which had gone unexplained. It was submitted that the respondent had accrued valuable rights in his favour on account of the acquittal granted by the Magistrate and, therefore, that right cannot be taken away lightly.

The High Court was of the opinion that the State had shown sufficient cause to condone the delay. Perusing Section 470 CrPC that provides for exclusion of time in certain cases, it was observed: “It appears that due to an incorrect opinion given by the Director of Prosecution, the State was prosecuting the remedy before a wrong forum. It was indeed with due diligence and bonafide as per Section 470 CrPC, and hence, such a period needs to be excluded while computing the period of limitation. Sufficient cause has been shown by the prosecution for condonation of delay, however, it cannot be lost sight of the fact that the respondent is put to some hardship due to the said delay which needs to be adequately compensated.”

Resultantly, the delay of 156 days in filing the appeal was condoned subject to costs of Rs 3000 to be paid to the respondent.[State of Goa v. Natividade Nazario Fernandes, 2019 SCC OnLine Bom 1703, decided on 27-08-2019]

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