Sh. Rakesh Kumar v. State

1. It is contended on behalf of the petitioner that the petitioner is a poor person and was incarcerated and his wife is also uneducated and was not in a position to arrange for funds to engage a counsel and was not aware that she could approach legal aid for filing the petition. Subsequently, she approached the legal aid and the petition has been 2019:DHC:2960 filed through legal aid with a delay of 319 days.

2. Issue notice. Notice is accepted by learned APP for the State.

3. Learned APP for the State submits that in view of the fact that the petitioner is in custody, she does not oppose condonation of delay.

4. In view of the above, the applications are allowed and delay in filing and re-filing the petition is condoned. CRL.REV.P. 666/2019

1. Issue notice. Notice is accepted by learned APP for the State.

2. Since the appeal of the petitioner was dismissed by the appellate court solely on the ground of limitation, with the consent of the parties, the petition, is taken up for hearing today itself.

3. Petitioner has filed appeal, before the appellate court, impugning judgment dated 23.03.2017 and order on sentence dated 19.04.2017, whereby, he was convicted of an offence under Section 392 IPC and sentenced to undergo rigorous imprisonment for a period of 3 years and to pay fine of Rs.5,000/- for the offence under Section 392 IPC and in default to undergo simple imprisonment for a period of 3 months.

4. Petitioner was taken in custody consequent to an application filed by him for surrendering and he, consequently, surrendered before the Court on 17.11.2017.

5. The Appellate Court, noticing that the appeal was belated by 220 days and also holding that sufficient cause had not been shown, refused to condone the delay in filing the appeal and rejected the same solely on the ground of limitation.

6. Petitioner had taken a plea before the Appellate Court that the petitioner, being a poor person and in custody, was unable to approach either the legal aid or to engage a private counsel, as such, could not file the appeal within time.

7. The Court noticing that petitioner had been represented during trial by a private counsel, disbelieved the contention of the petitioner that he did not have funds to engage a private counsel, held that sufficient cause had not been shown for condoning the delay.

8. In my view, the Appellate Court has committed an error in not condoning the delay. The Trial Court in its order on sentence dated 19.04.2017 has noticed that the petitioner has two minor children besides his wife and old parents and he is the sole bread earner of the family.

9. The fact that the petitioner was represented by a private counsel before the Trial Court would not ipso facto imply that he had sufficient funds to engage a private counsel or appropriate legal advice to file an appeal within limitation.

10. It may also be noticed that the petitioner had filed an appeal after he had surrendered before the concerned Court, so delay in filing the appeal would not have benefitted petitioner. Any delay in filing an appeal would be detrimental to a person who is in custody.

11. Clearly the order of the Appellate Court in rejecting the appeal of the petitioner is erroneous and the finding that sufficient cause was not shown by the petitioner in approaching the Appellate Court is not sustainable.