# Utkarsh Awasthi v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 666
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-23
- **Case number:** Criminal Appeal Defective No. 11 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/utkarsh-awasthi-v-state-of-u-p-ors-49099
- **Pages:** 5

## Headnote

Law
-
appeal
against
conviction - Condonation of delay - Indian
Penal Code, 1860 - Sections 147/148/34,
325/149/34, 427/149/34, 436/427/34,
323/149/34 - The Limitataion Act,1963 -
Section 5 - "sufficient cause" - Interest
reipublicae up sit finis litium (it is for the
general welfare that a period be put to
litigation) - If delay has occurred for
reasons which does not smack of mala
fide, Court should be reluctant to refuse
condonation. (para - 18)

Appeal with delay of 2300 days - no explanation
regarding delay.

HELD:-Complete careless and reckless long
delay on part of appellant which remain
virtually unexplained at all. No reason to
exercise judicial discretion to justify condonation
of delay. Barred by limitation. (Para -18)

Criminal appeal dismissed. (E-7)

List of Cases cited:-

## Text

666 INDIAN LAW REPORTS ALLAHABAD SERIES
expert opinion. The said version should
consistently match with the version of every
other witness. It can even be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should not
be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the version
of such a witness qualifies the above test as well
as all other such similar tests to be applied, can
it be held that such a witness can be called as a
"sterling witness" whose version can be
accepted
by
the
court
without
any
corroboration and based on which the guilty
can be punished. To be more precise, the
version of the said witness on the core spectrum
of the crime should remain intact while all other
attendant materials, namely, oral, documentary
and material objects should match the said
version in material particulars in order to
enable the court trying the offence to rely on the
core version to sieve the other supporting
materials for holding the offender guilty of the
charge alleged."

23. Thus, from the aforesaid discussions, it
is clear, that, before arriving at a conclusion that
the offence is made out or not, it is to be seen
that the statement of the victim as well as other
evidences are of a high quality and unassailable
without
there
being
any
contradictions,
exaggerations and the same should be
consistent. In the present case, from narration of
the facts in the NCR till submission of charge
sheet, there is no consistency and only in the
statement under Section 164 Cr.P.C., the victim
has, for the first time, raised her grievance
regarding allegation of an attempt of being
sexually assaulted. The case of the applicant is
also to be seen keeping in mind his career as he
is student and false allegations against him will
cause equal distress, humiliation and damage.
Therefore, the case of the informant does not
stand on the test of law laid down by the Apex
Court in the aforesaid judgments.

24.

Considering
the
facts
and
circumstances of the case, as noted herein
above, and also the submissions made by the
counsel for the parties, the court is of the
considered opinion that the statutory safeguards
as provided under Section 155(2) of Cr.P.C. has
not been followed and the testimony of the
victim was not of sterling quality to believe the
allegations
made
against
the
applicant,
therefore, the entire proceedings is liable to be
quashed.

25. Accordingly, the charge sheet No.57
dated 20.02.2021 and cognizance/summoning
order dated 31.03.2021 as well as the entire
prosecution of Criminal Case No.13805 of
2021 (State vs. Shivam Solanki), arising out of
Case Crime No.504 of 2020, under Sections
323, 504, 506, 427, 386, 376 and 511 IPC,
Police
Station-Hariparvat,
District-Agra,
pending before the court of Chief Judicial
Magistrate, Agra are hereby quashed.

26. The application is, accordingly,
allowed. There shall be no order as to costs.

27. A copy of this order be certified to the
lower court forthwith.
----------
(2022) 9 ILRA 666
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.08.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal Defective No. 11 of 2022
(U/S 372 Cr.P. C.)

Utkarsh Awasthi ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Nitin Kumar Mishra
9 All. Utkarsh Awasthi Vs. State of U.P. & Ors.
667
Counsel for the Opposite Parties:
Govt. Advocate

(A)
Criminal
Law
-
appeal
against
conviction - Condonation of delay - Indian
Penal Code, 1860 - Sections 147/148/34,
325/149/34, 427/149/34, 436/427/34,
323/149/34 - The Limitataion Act,1963 -
Section 5 - "sufficient cause" - Interest
reipublicae up sit finis litium (it is for the
general welfare that a period be put to
litigation) - If delay has occurred for
reasons which does not smack of mala
fide, Court should be reluctant to refuse
condonation. (para - 18)

Appeal with delay of 2300 days - no explanation
regarding delay.

HELD:-Complete careless and reckless long
delay on part of appellant which remain
virtually unexplained at all. No reason to
exercise judicial discretion to justify condonation
of delay. Barred by limitation. (Para -18)

Criminal appeal dismissed. (E-7)

List of Cases cited:-

1. Collector, Land Acquisition Vs Katiji, 1987(2)
SCC 107

2. P.K. Ramachandran Vs St. of Kerala, AIR
1998 SC 2276

3. Shakuntala Devi Jain Vs Kuntal Kumari, AIR
1969 SC 575

4. Privy Council in Brij Indar Singh Vs Kanshi
Ram, ILR (1918) 45 Cal 94

5. Vedabai @ Vaijayanatabai Baburao Vs
Shantaram Baburao Patil & ors., JT 2001(5) SC
608

6. Pundlik Jalam Patil (dead) by LRS. Vs
Executive Engineer, Jalgaon Medium Project &
Anr., (2008) 17 SCC 448

7. Maniben Devraj Shah Vs Municipal Corporation
of Brihan Mumbai, 2012 (5) SCC 157

(Delivered by Hon'ble Shamim Ahmed, J.)

(Criminal Misc. Delay Condonation
Application No. 01 of 2022)

1. This criminal appeal has been filed
with a delay of 2300 days, as per the report
of the stamp reporter.

2. By means of present criminal
appeal, the the appellant/ complainant has
challenged the impugned judgment and
order dated 15.02.2014 passed by learned
Additional District and Session Judge,
Court
No.3,
Sitapur,
convicting
and
sentencing the respondents No. 2 to 6 under
Sections
147/148/34,
325/149/34,
427/149/34, 436/427/34, 323/149/34 I.P.C.
for a maximum punishment of five years
with default stipulation in Session Trial No.
437 2007, arising out of Crime No.
134/2002 relating to Police Station Reusa,
District Sitapur and acquitting them from
the charges framed against them under
Sections 307, 504, 506 I.P.C.

3. Heard Sri Nitin Kumar Mishra,
learned counsel for the appellant and Sri
Aniruddh Kumar Singh, learned A.G.A.-1
for the State and perused the record.

4.

Learned
counsel
for
the
appellant/applicant
submits
that
the
respondent Nos. 2 to 6 are the criminal
spirited persons in which Basant Lal,
Arvind Pandey, Shobha Ram Pandey and
Amrit Lal Pandey have criminal history
and they are likely to create disturbance in
the peaceful living of the appellant, due to
which the family of the appellant is in fear.
He further submits that the appellant is
waiting for appeal preferred about the
inadequacy of sentence but no such appeal
has been filed by the State of Uttar Pradesh.
668 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Learned A.G.A.-I submits that this
appeal has been filed with delay of 2300
days without giving any proper explanation
regarding delay.

6. On the query made by this court
and the objection raised by the learned
A.G.A.-I
,
learned
counsel
for
the
appellant/applicant could not be able to
give
any
proper
and
satisfactory
explanation regarding a long delay of 2300
days in filing this appeal nor any ground
has been mentioned in the affidavit filed in
support
of
the
delay
condonation
application.

7. The explanation given in affidavit
accompanying
delay
condonation
application filed under Section 5 of
Limitation Act, 1963 is neither acceptable
nor trustworthy.

8. The expression "sufficient cause"
in Section 5 of Act, 1963 has been held to
receive a liberal construction so as to
advance substantial justice and generally
a delay in preferring appeal may be
condoned in interest of justice where no
gross negligence or deliberate inaction or
lack of bona fide is imputable to parties,
seeking
condonation
of
delay.
In
Collector, Land Acquisition Vs. Katiji,
1987(2) SCC 107, the Court said, that,
when substantial justice and technical
considerations are taken against each
other,
cause
of
substantial
justice
deserves to be preferred, for, the other
side cannot claim to have vested right in
injustice being done because of a non
deliberate delay. The Court further said
that judiciary is respected not on account
of its power to legalise injustice on
technical grounds but because it is
capable of removing injustice and is
expected to do so.

9. In P.K. Ramachandran Vs. State
of Kerala, AIR 1998 SC 2276 the Court
said:

"Law of limitation may harshly
affect a particular party but it has to be
applied with all its rigour when the statute
so prescribe and the Courts have no power
to extend the period of limitation on
equitable grounds."

10. The Rules of limitation are not
meant to destroy rights of parties. They
virtually take away the remedy. They are
meant with the objective that parties should
not resort to dilatory tactics and sleep over
their rights. They must seek remedy
promptly. The object of providing a legal
remedy is to repair the damage caused by
reason of legal injury. The statute relating
to limitation determines a life span for such
legal remedy for redress of the legal injury,
one has suffered. Time is precious and the
wasted time would never revisit. During
efflux of time, newer causes would come
up, necessitating newer persons to seek
legal remedy by approaching the courts. So
a life span must be fixed for each remedy.
Unending period for launching the remedy
may lead to unending uncertainty and
consequential
anarchy.
The
statute
providing limitation is founded on public
policy. It is enshrined in the maxim Interest
reipublicae up sit finis litium (it is for the
general welfare that a period be put to
litigation). It is for this reason that when an
action becomes barred by time, the Court
should be slow to ignore delay for the
reason that once limitation expires, other
party matures his rights on the subject with
attainment of finality. Though it cannot be
doubted that refusal to condone delay
would result in foreclosing the suiter from
putting forth his cause but simultaneously
the party on the other hand is also entitled
9 All. Utkarsh Awasthi Vs. State of U.P. & Ors.
669
to sit and feel carefree after a particular
length of time, getting relieved from
persistent and continued litigation.

11. There is no presumption that
delay in approaching the court is always
deliberate. No person gains from deliberate
delaying a matter by not resorting to take
appropriate legal remedy within time but
then the words "sufficient cause" show that
delay, if any, occurred, should not be
deliberate, negligent and due to casual
approach of concerned litigant, but, it
should be bona fide, and, for the reasons
beyond his control, and, in any case should
not lack bona fide. If the explanation does
not smack of lack of bona fide, the Court
should show due consideration to the suiter,
but, when there is apparent casual approach
on the part of suiter, the approach of Court
is also bound to change. Lapse on the part
of litigant in approaching Court within time
is understandable but a total inaction for
long
period
of
delay
without
any
explanation whatsoever and that too in
absence of showing any sincere attempt on
the part of suiter, would add to his
negligence, and would be relevant factor
going against him.

12. I need not to burden this judgment
with a catena of decisions explaining and
laying down as to what should be the
approach of Court on construing "sufficient
cause" under Section 5 of Act, 1963 and it
would be suffice to refer a very few of
them besides those already referred.

13. In Shakuntala Devi Jain Vs.
Kuntal Kumari, AIR 1969 SC 575 a three
Judges Bench of the Court said, that, unless
want of bona fide of such inaction or
negligence as would deprive a party of the
protection of Section 5 is proved, the
application must not be thrown out or any
delay cannot be refused to be condoned.

14. The Privy Council in Brij Indar
Singh Vs. Kanshi Ram ILR (1918) 45
Cal 94 observed that true guide for a court
to exercise the discretion under Section 5 is
whether the appellant acted with reasonable
diligence in prosecuting the appeal. This
principle still holds good inasmuch as the
aforesaid decision of Privy Council as
repeatedly been referred to, and, recently in
State of Nagaland Vs. Lipok AO and
others, AIR 2005 SC 2191.

15. In Vedabai @ Vaijayanatabai
Baburao Vs. Shantaram Baburao Patil
and others, JT 2001(5) SC 608 the Court
said that under Section 5 of Act, 1963 it
should adopt a pragmatic approach. A
distinction must be made between a case
where the delay is inordinate and a case
where the delay is of a few days. In the
former case consideration of prejudice to
the other side will be a relevant factor so
the case calls for a more cautious approach
but in the latter case no such consideration
may arise and such a case deserves a liberal
approach. No hard and fast rule can be laid
down in this regard and the basic guiding
factor is advancement of substantial justice.

16. In Pundlik Jalam Patil (dead) by
LRS. Vs. Executive Engineer, Jalgaon
Medium Project and Anr. (2008) 17 SCC
448, in para 17 of the judgment, the Court
said :

"...The
evidence
on
record
suggests neglect of its own right for long
time in preferring appeals. The court
cannot enquire into belated and state
claims on the ground of equity. Delay
defeats equity. The court helps those who
670 INDIAN LAW REPORTS ALLAHABAD SERIES
are vigilant and "do not slumber over their
rights."

17. In Maniben Devraj Shah Vs.
Municipal
Corporation
of
Brihan
Mumbai, 2012 (5) SCC 157, in para 18 of
the judgment, the Court said as under:

"What needs to be emphasised is
that even though a liberal and justice
oriented approach is required to be adopted
in the exercise of power under Section 5 of
the Limitation Act and other similar statutes,
the Courts can neither become oblivious of
the fact that the successful litigant has
acquired certain rights on the basis of the
judgment under challenge and a lot of time
is consumed at various stages of litigation
apart from the cost. What colour the
expression 'sufficient cause' would get in the
factual matrix of a given case would largely
depend on bona fide nature of the
explanation. If the Court finds that there has
been no negligence on the part of the
applicant and the cause shown for the delay
does not lack bona fides, then it may
condone the delay. If, on the other hand, the
explanation given by the applicant is found
to be concocted or he is thoroughly
negligent in prosecuting his cause, then it
would be a legitimate exercise of discretion
not to condone the delay. In cases involving
the State and its agencies/instrumentalities,
the Court can take note of the fact that
sufficient time is taken in the decision
making process but no premium can be
given for total lethargy or utter negligence
on the part of the officers of the State and /
or its agencies/instrumentalities and the
applications filed by them for condonation
of delay cannot be allowed as a matter of
course by accepting the plea that dismissal
of the matter on the ground of bar of
limitation will cause injury to the public
interest."

18. In my view, the kind of
explanation rendered herein does not satisfy
the observations of Apex Court that if delay
has occurred for reasons which does not
smack of mala fide, the Court should be
reluctant to refuse condonation. On the
contrary, I find that here is a case which
shows a complete careless and reckless long
delay on the part of appellant which has
remain
virtually
unexplained
at
all.
Therefore, I do not find any reason to
exercise my judicial discretion exercising
judiciously so as to justify condonation of
delay in the present case.

19. In the result, the application
deserves to be dismissed.

20. Accordingly, the application for
condonation of delay is hereby rejected.

Case
:-
CRIMINAL
APPEAL
DEFECTIVE U/S 372 CR.P.C. No. - 11 of
2022

Since delay condonation application No.
01 of 2022 has been rejected by this Court
vide order of date, therefore, the present
appeal is also dismissed as barred by
limitation.
----------
(2022) 9 ILRA 670
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 118 of 2019
(U/S 372 Cr.P. C.)

Ajay Gaud ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties