The judgment emphasizes the importance of demonstrating genuine and sufficient cause for condoning delay in filing an appeal, as required under Section 5 of the Limitation Act, 1963.

V.K. Shali, J.— (ORAL)

Crl.M.A.17662/2011

1. This is an application filed by the appellant under Section 5 of the Limitation Act, 1963 seeking condonation of 170 days’ delay in filing the appeal.

2. Briefly stated, the facts of the case are that on 30.9.2008, an information was received vide DD No.6-A at 3:45 A.M. by PS:Vasant Kunj, New Delhi that one Ms. Soumya Vishwanathan was found murdered in her Maruti Zen car, bearing the registration No.DL-2CR-5801 at Nelson Mandela Marg, Vasant Kunj, New Delhi, who was shot in her head by a gun. An FIR No.481/2008 under Section 302 IPC was registered on the same date at PS:Vasant Kunj, New Delhi. The investigation of the said case was carried out by Inspector Shakir Hassan, the then SHO, Vasant Kunj, New Delhi. In the meanwhile, the accused Ravi Kapoor along with his associates, Amit Kumar Shukla and the present appellant was arrested in FIR No.69/2009 under Sections 302/365/397/201/411/403/412/468/471/482/120B/34 IPC and Section 25 of the Arms Act registered by PS:Vasant Vihar, New Delhi. In the said case, the abovenamed persons had kidnapped one Ms. Jigeesha Ghosh from near her house in Vasant Kunj area and after robbing her of valuables and using her ATM card, killed her and threw her body near Faridabad, Haryana. All the above-mentioned persons were apprehended by the Police. The Police recovered from the possession of Ravi Kapoor one santro car bearing No.HR 18-C-3409, one loaded country made pistol along with three live cartridges and one empty/fired cartridge. The said accused disclosed that he and his associates were also involved in the killing of a girl at Nelson Mandela Marg, New Delhi on 30.9.2008, besides other heinous cases of kidnapping, murder, theft etc. It was on this basis that the abovementioned persons were arrested in FIR No.481/2008.

3. A charge under Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as ‘MCOCA’) was framed against the appellant by the learned ASJ-01, Saket, New Delhi vide order dated 9.5.2011. Apart from the charges under MCOCA, the appellant was charged for various other heinous offences under Sections 302 and 411 IPC.

4. The appellant, feeling aggrieved, has filed the present appeal against the charges framed under MCOCA as Section 12 of MCOCA enables an accused to file an appeal against all the orders not being interlocutory orders. The reason given by the appellant for the delay of 170 days in filing the appeal is that his father, Dharambir Singh Malik, who was acting as a Parokar for the purpose of filing the appeal, is a senior citizen and has been suffering from heart diseases. It has been stated that there is no other male member in his family who could look after the case of the appellant. Consequently, his father, on account of being sick, could not file the appeal on time. Another reason given by the appellant for delay in filing the appeal is that his father had to arrange for the funds which also entailed some time and, therefore, the delay, being neither intentional nor willful, the same was sought to be condoned. The application is supported by the affidavit of Dharambir Singh Malik, the father of the appellant.

5. The State has filed reply to the application and has contested the claim of the appellant that his father was not having sufficient funds or that he was unable, on account of his ill-health, to attend to the matter. It has been stated by the State that the appellant was, at all times, represented by a counsel and even after framing of the charge for the offences under MCOCA, the father of the appellant continued to appear before the learned Trial Court during the course of examination of the witnesses and kept on pursuing the matter by the instructing counsel who have been defending the appellant, which clearly shows that the plea of illness of the father or lack of funds is not a genuine reason for not having filed the appeal on time. It has, accordingly, been prayed that the appellant has n