V.K. Shali, J.
Crl.M.A. 17662/2011
1. This is an application filed by the appellant u/s 5 of the Limitation Act, 1963 seeking condonation of 170 days'' delay in filing the appeal. 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 u/s 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.
2. 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.
3. 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.
4. 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 not been able to show any genuine and ''sufficient cause'' for condoning the delay in filing the appeal. On the contrary, it has been stated that the evidence has already been recorded and the appellant has been charged for an offence of murder of Soumya Viswanathan, a Journalist, on the night of 30.9.2008 while she was going home in her Maruti Zen Car, bearing registration No. DL-2CR-5801. Accordingly, it has been prayed that the appeal of the appellant deserves to be dismissed on the ground of its being time barred.
5. I have heard the learned counsel for the appellant as well as the learned APP and have also gone through the record.
6. The allegations levelled against the appellant are various in nature inasmuch as he is alleged to have killed a young journalist in the middle of the night while she was going home. Keeping in view the criminal proclivities, a charge under MCOCA was also framed. An appeal against the order in terms of Section 12 of MCOCA has to be filed within a period of 60 days. No doubt, the law regarding the condonation of delay has been interpreted by the Hon''ble Supreme Court very liberally and it has been observed that what is important to be seen by the Court is not the quantum of delay but the bonafides of the person who is seeking the condonation. It is in this context that the Apex Court has also observed that while considering the prayer for condonation of delay, the Court must also prima facie see the bona fides of the person. Reliance in this regard can be placed on
7. Keeping these two broad parameters in view, so far as the prima facie case against framing of the charge is concerned, a perusal of the order of framing of charge does not show any infirmity in framing of the charge against the appellant as, at the stage of the framing of charge, only prima facie evidence has to be seen, which may show complicity of the appellant.
8. So far as the condonation of delay is concerned, the explanation, which has been given by the appellant, is vague and uninspiring. This is on account of the fact that the appellant has stated that his father is an old person and suffering from heart ailments, but no documentary proof of the same has been annexed. It has been the case of the appellant that his father was acting as a Parokar and because of the heart ailments, he was not in a position to file the appeal. This ground has been refuted by the State by way of a reply by stating that he was present in Court after framing of the charge and was instructing the counsel. The appellant has not chosen to file a rejoinder to this. Therefore, the plea taken by the State cannot be brushed aside without any merit. The appellant''s application for condonation of delay is so sketchy that even the word ''sufficient cause'' has not been used in the application, which is sine qua non for the condonation of delay, as the delay, which occur in such cases, should be because of some reason/cause beyond the control of a party. On the contrary, what has been urged is that the delay was unintentional. This, in my view, is not sufficient ''averment'' to bring the case of the appellant within the four corners of Section 5 of the Limitation Act. The second plea of the appellant that want of funds was another constraint which prevented his father from filing the appeal on time also does not inspire confidence and does not seem to be bona fide. The appellant is represented by a private counsel. If there was lack of funds, he could have got legal aid and sought a counsel from the Court concerned. I feel since the recording of evidence has already started, this is only a belated attempt on the part of the appellant to delay the proceedings of the Trial Court. I consider this application seeking condonation of delay as without any merit and the same is accordingly dismissed.
