Page No.# 1/7 GAHC040010252024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : IA(Crl)/73/2024 Ms Opet Jamoh Daughter of Shri Tangir Jamoh, Permanent address Village Begging, PO and PS Boleng, Siang District, Arunachal Pradesh present address D Sector Court Street Naharlagun, PO and PS Naharlagun, Papumpare District, Arunachal Pradesh VERSUS The State of AP and Anr represented by the PP of AP 2:Smti Taba Yall Nabam Age: 0 Occupation : Wife of Shri Vishal Pah Nabam a resident of Ward No.5 Vivek Vihar Itanagar PO and PS Itanagar Papumpare District Arunachal Prades Advocate for the Petitioner : Tabit Tapak, Advocate for the Respondent : P P of AP, Punung Borang,Nimcha Hondique,Teto Taba BEFORE HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER ORDER Date : 01-04-2025 Heard Mr. T. Tapak, learned counsel for the applicant. Also heard Mr. D. Loyi, learned Additional Public Prosecutor for the State and Mr. T. Page No.# 2/7 Taba, learned counsel for the respondent No.2. 2. This application under Section 5 of the Limitation Act has been filed for condonation of delay of 565 days in preferring the connected Criminal Revision petition No.10(AP)/2024. The learned counsel submits that when the impugned order dated 27.10.2024 was passed, the present applicant was sick and she was under treatment and medical certificates to that effect have been annexed as Annexure-II series in the present application. The applicant has also submitted that her elder sister is a kidney patient and she is undergoing medical treatment outside the State all the time and she being the only unmarried member of the family has to look after the treatment of her elder sister. It is also stated that the mother of the applicant being aged has also undergone various medical treatment and mother is the kidney doner of the ailing elder sister of the applicant. It is also stated that although kidney transplant was done in the year 2011, the treatment of her elder sister and her mother is still going on till date which has burdened her physically, mentally and financially. The applicant has also enclosed the medical documents pertaining to the treatment of her mother and her sister. 3. Another ground taken by the applicant is that the advocate who was appearing on her behalf before the trial court has not kept her informed about the proceedings of the case and therefore, she was not aware about the passing of the impugned order dated 27.10.2022, by the Sessions Judge, Yupia in Sessions Case No. 07/2021 under Section 376/417/109/34 IPC. The learned counsel for the applicant has therefore, stated that due Page No.# 3/7 to the communication gap between her counsel and herself, the applicant was not able to approach this Court on time. It is stated that the certified true copy of the impugned discharge order dated 27.10.2022 was applied for and the copy of the NOC from the previous advocate was also obtained on 24.03.2023, which is also annexed in the application. The learned counsel has therefore, submitted that the delay of 565 days in filing the connected revision petition is neither intentional nor deliberate but due to the aforementioned facts and circumstances of the case. The learned counsel for the applicant also submits that the merit of the main case needs to be looked into by this Court and that applicant has every chance of succeeding in the revision petition, if the delay is condoned and if the matter is heard on merit. 4. The learned counsel has relied on the authorities of the Hon’ble Supreme Court in the case of Ram Nath Sao @ Ram Nath Sahu & Ors. Vs. Gobardhan Sao & Ors. reported in (2022) 2 SC 143 at paragraphs-11, 12 and 13, wherein the Hon’ble Supreme Court has observed that refusing to condone the delay would result in foreclosing a suitor from putting forth his cause. And that there should be no presumption that delay in approaching the court is always deliberate. The Hon’ble Supreme Court also observes that there can be some lapse on the part of the litigant concerned but this alone is not enough to turn down his plea and to shut the door against him. 5. The learned counsel for the applicant also refers to the case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, reported in (1987) 2 SCC 107 at paragraphs-3, 4, 5 and 6. Page No.# 4/7 The learned counsel by relying on the above judgments has submitted that Hon’ble Supreme Court has also held that every day’s delay need not be explained and “The doctrine of every day must be applied in a rational common sense pragmatic manner” and “when substantial justice and technical consideration are pitted 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 non-deliberate delay”. And in fact, the Supreme Court has also observed that “ A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.” 6. The learned counsel has also referred to the case of State of Haryana Vs. Chandra Mani and Ors. reported in (1996) 3 SCC 132. In this case, the Hon’ble Supreme Court in paragraph-4 has also expressed a similar view by stating that “sufficient cause” should therefore be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every days delay and the Court should decide the matters on merits unless the case is hopelessly without merit. 7. The learned counsel for the applicant in view of the above views taken by the Hon’ble Supreme Court on condonation of delay and also in view of the explanation made by him in the application for condonation of delay prays that the delay of 565 days may be condoned and the connected revision petition may be admitted. 8. Mr. T. Taba, learned counsel for the opposite party/ respondent No.2 has filed his affidavit-in-opposition and relying on the same, has stated Page No.# 5/7 that the delay may not be condoned as the applicant has not been able to show sufficient cause for the delay. The learned counsel for the respondent No.2 has drawn the attention of this Court to the affidavit-in- opposition wherein it has been stated that Kidney transplantation of the sister of the applicant was done on 23.05.2017, according to the document enclosed by the applicant, which is about 3 years before the filing of the FIR in the present case which was filed on 08.05.2020 and registered on 13.08.2020. He has also submitted that the cousin brother of the applicant has expired on 29.01.2024, according to the death certificate, which is enclosed in the application and which is after 459 days of the passing of the impugned order dated 27.10.2022. Moreover, the learned counsel also states that the private engaged counsel of the applicant had given the NOC on 24.03.2023, which is 148 days after the impugned order dated 27.10.2022 and there is absolutely no explanation in the application about the 148 days or the delay of 459 days after the death of the applicant’s brother. With regard to the ailment of the elder sister of the applicant, the learned counsel for the respondent No.2 states that sister of the applicant who is PW-2 before the learned trial court was examined by the court and her statement was recorded on 24.03.2023 and again on 20.04.2023, which is shown by the annexure-2 to the affidavit-in-opposition, therefore, it cannot be said that the delay was caused due to the ailment and treatment of the sister of the applicant. 9. Another objection which was taken by the learned counsel for the respondent No.2 is that CTC of the impugned order was obtained by the present counsel of the applicant on 02.02.2024, whereas, the present Page No.# 6/7 application was filed on 18.07.2024. Therefore, there is also no explanation regarding the 196 days in between obtaining the CTC and filing of the present application. The learned counsel for the respondent No.2 has also taken this Court to the charge-sheet of the connected revision petition which is at page-29-30 of the criminal revision petition No.10(AP)/2024, wherein, the I.O of the case has observed that prima facie case under Section 376 was found well established against the main accused one Vishal Nabam whereas, in regard to the present respondent No.2, the I.O has stated that she may be discharged from the liability of her bail bond and may be treated as approver. 10. Accordingly, the learned trial court in the impugned order dated 27.10.2022, has rightly accepted the view of the I.O and having found no prima facie case against the present respondent No.2, the trial court has discharged the present respondent No.2 from the case. Therefore, even going by the merit of the case, the learned counsel for the respondent No.2 states that the present application has no case for the court to interfere. Therefore, the learned counsel for the respondent No.2 prays that the present application may be dismissed as no sufficient cause has been shown. 11. I have considered the submissions of the parties and have perused the documents and records before this Court. 12. This Court while considering the case for condonation of delay cannot overlook the merit of the case. A bare perusal of the application under Section 5 of the Limitation Act shows that there is no proper Page No.# 7/7 explanation for the delays and moreover, there are huge gaps between the period when the CTC was obtained and the present application filed, where there is no explanation at all regarding the delay as pointed out by the learned counsel for the respondent No.2. There is no explanation regarding the delay of about 148 days from the time NOC was obtained from the previous counsel and also no explanation regarding delay of about 459 days after the demise of the brother of the applicant. Upon going through the charge-sheet and also the impugned order dated 27.10.2022, it is seen that prima facie there was no involvement of the present respondent No.2 in the case. Therefore, the authorities relied upon by the applicant do not help the applicant’s case in any way as condonation of delay does not depend on how many days but depends on the facts of each case. 13. In view of the observations made above, this Court is not inclined to allow the application. Accordingly, the application is dismissed. JUDGE Comparing Assistant