CASE NO.:

Appeal (crl.) 484 of 2005 PETITIONER:

State of Nagaland RESPONDENT:

Lipok AO & Ors.

DATE OF JUDGMENT: 01/04/2005 BENCH:

ARIJIT PASAYAT & S.H. KAPADIA JUDGMENT:

J U D G M E N T (Arising out of S.L.P. (Crl.) 4612 of 2003 ARIJIT PASAYAT, J.

Leave granted.

The State of Nagaland questions correctness of the judgment rendered by a learned Single Judge of the Gauhati High Court, Kohima Bench refusing to condone the delay by rejecting the application filed under Section 5 of the Limitation Act, 1963 (in short the ’Limitation Act’) and consequentially rejecting of application for grant of leave to appeal. Before we deal with the legality of the order refusing to condone the delay in making the application for grant of leave, a brief reference to the factual background would suffice Application for grant of leave was made in terms of Section 378 (3) of the Code of Criminal Procedure, 1973 (in short the ’Code’). A judgment of acquittal was passed by learned Additional Deputy Commissioner (Judicial) Dimapur, Nagaland. The judgment was pronounced on 18.12.2002. As there was delay in making the application for grant of leave in terms of Section 378(3) of the Code, application for condonation of delay was filed. As is revealed from the application for condonation, copy of the order was received by the concerned department on 15th January, 2003; without wasting any time on the same date the relevant documents and papers were put up for necessary action before the Deputy Inspector General of Police, (Head quarters), Nagaland. On the next day, the said Deputy Inspector General considered the matter and forwarded the file for consideration to the Deputy Inspector General of Police (M&P), Nagaland. Unfortunately the whole file along with note sheet were found missing from the office and could not be traced in spite of best efforts made by the department. Finally it was traced on 15.3.2003 and the file was put up for necessary action by the Additional Director General of Police (Headquarter) Nagaland. The said officer opined that an appeal was to be filed on 26.3.2003, and finally the appeal was filed after appointing a special Public Prosecutor.

When it was noticed that no appeal had been filed, the Secretary to the Department of Law and Justice, Government of Nagaland got in touch with the Additional General, Gauhati High Court regarding the filing of the appeal and in fact the appeal was filed on 14.5.2003. It is of relevance to note that in the application for condonation of delay it was clearly noted that when directions were given to reconstruct the file, missing file suddenly appeared in the office of Director General of Police, Nagaland.

In support of the application for condonation of delay, it was submitted that the aspects highlighted clearly indicated that the authorities were acting bonafide and various decisions of this court were pressed into service to seek condonation of delay. High Court, however, refused to condone the delay of 57 days on the ground that it is the duty of the litigant to file an appeal before the expiry of the limitation period. Merely because the Additional Advocate General did not file an appeal in spite of the instructions issued to him, that did not constitute sufficient cause and further the fact that the records were purportedly missing was not a valid ground. It was noted that merely asking the Additional Advocate General to file an appeal was not sufficient and the department should have pursued the matter and should have made enquiries as to whether the appeal had in fact, been filed or not. Accordingly the application for condonation of delay in filing the appeal was rejected and consequentially the application for grant of leave was rejected.

Learned counsel appearing for the appellant\026State submitted that the approach of the High Court is not correct and in fact it is contrary to the position of law indicated by this Court in various cases. In the application for condonation of delay the various fa