Basanta Patnayak v. The State of Assam and Anr

ORDER

19.06.2024 [M. Choudhury, J.] Heard Ms. S. Sarma Hazarika, learned Legal Aid Counsel for the applicant and Mr. K.K. Das, learned Additional Public Prosecutor for the opposite party no. 1, State of Assam. Page No.# 2/3

¶2Mr. Das, learned Additional Public Prosecutor has submitted on the basis of a report dated 08.05.2024 received from the Officer In-Charge, Mariani Police Station that service of notice upon the opposite party no. 2 - informant has duly been served.

¶3None has appeared for the opposite party no. 2 – informant today on call though the notice is seemed to be served on 08.05.2024.

¶4The instant interlocutory application under Section 5 of the Limitation Act, 1963 is preferred seeking condonation of delay of 196 days, which is stated to have occurred in preferring the connected appeal under Section 374 [2] of the Code of Criminal Procedure, 1973 against a Judgment and Order dated 23.02.2023 passed by the learned Special Judge, Jorhat ['the trial court', for short] in Special Case no. 29/2019. By the Judgment and Order dated 23.02.2023, the learned trial court has convicted the applicant-appellant, Basanta Patnayak for the offences under Section 376[3] of the Indian Penal Code and under Section 4[2] of the Protection of Children from Sexual Offences Act, 2012 ['POCSO Act', for short]. Under Section 4[2] of the POCSO Act, the applicant-appellant has been sentenced to undergo rigorous imprisonment for 20 [twenty] years and to pay a fine of Rs. 10,000/-, in default of payment of fine, to undergo simple imprisonment for another 1 [one] year.

¶5We have perused the statements and averments made in paragraph nos. 2 & 3 of the instant application wherein the reasons for the delay of 196 days in preferring the accompanying appeal have been explained.

¶6It is inter-alia averred that in seeking to prefer the accompanying appeal, the assistance of the jurisdictional District Legal Services Authority ['DLSA', for short] was sought for and on being sought for, the DLSA has appointed one Legal Aid Counsel to prefer the accompanying appeal.

¶7Having considered the reasons explained in the application, we are of the considered view that the applicant-appellant has been able to explain the reason for delay Page No.# 3/3 showing sufficient cause. We are also of the view that the cause of substantial justice would be better sub-served if the accompanying appeal is heard on merits, after condoning the delay of 196 days in preferring the accompanying appeal.

¶8Mr. Das, learned Additional Public Prosecutor has submitted that he has no objection if the accompanying appeal is heard on merits.

¶9Accordingly, the instant interlocutory application is allowed.

¶10The Registry to register the accompanying appeal and thereafter, list the appeal accordingly.

JUDGE JUDGE Comparing Assistant

Page No.# 1/3 GAHC010281832023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/114/2024 BASANTA PATNAYAK S/O LATE JIBON PATNAYAK, KOTHALGURI T.E MARIANI, JORHAT, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY PP ASSAM 2:SIMA PATNAYAK W/O BIRKHO PATNAYAK MARIANI KATHALGURI TEA ESTATE PS MARIANI JORHAT ASSA Advocate for the Petitioner : MS S SARMA HAZARIKA (LEGAL AID COUNSEL) Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY HONOURABLE MR. JUSTICE ROBIN PHUKAN