"Hardly Any Acceptable Explanation": Apex Court Sets Aside Kerala HC Order Condoning Delay Of 1184 Days In State's Criminal Appeal

The Supreme Court has set aside a Kerala High Court order that condoned a 1,184-day delay in filing a criminal appeal by the State of Kerala against an acquittal. 

The Bench of Justice Hrishikesh Roy and Justice SVN Bhatti ruled that the High Court's decision to condone such an extraordinary delay, solely on the basis of a subsequent change in legal interpretation, was untenable.

"We have perused the application for condonation of delay filed by the State before the High Court and notice that there is hardly any acceptable explanation to condone the huge delay of 1184 days in presenting the appeal. Nothing is mentioned as to why, following the acquittal of the appellant on 10.12.2018, the State waited for over 3 years, to file the appeal on 16.09.2022," the Bench said. 

AoR Ritesh Kumar Chowdhary appeared for the Appellant, and AoR Harshad V. Hameed appeared for the Respondent.

The case pertained to the acquittal of an accused by the Special Court on December 10, 2018, in a narcotics matter. The acquittal was based on two grounds:

1. The absence of reliable evidence linking the contraband seized to the sample sent for laboratory analysis.

2. The application of the legal principle established in Mohan Lal v. State of Punjab (2018), which held that a fair investigation requires the informant and the investigator to be different individuals.

Subsequently, in Mukesh Singh v. State (Narcotic Branch of Delhi) (2020), the Court clarified that an investigation by the informant does not inherently vitiate the process unless bias or prejudice is demonstrated based on the specific facts of the case.

It is to be noted that the State of Kerala had filed a criminal appeal on September 16, 2022, nearly three years after the acquittal. The High Court had condoned the delay on June 23, 2023, reasoning that the change in law under Mukesh Singh necessitated revisiting the acquittal.

The High Court had noted, "As the judgment under appeal is seen rendered solely based on the dictum in Mohan Lal (supra) and the legal position having changed, the appeal has to be heard on merits. Being so, the delay is liable to be condoned."

The Court referred to its recent judgment in Delhi Development Authority v. Tejpal & Ors., which held, "Subsequent change of law will not be attracted unless a case is pending before the competent court awaiting its final adjudication. To say it differently, if a case has already been decided, it cannot be re-opened and re-decided solely on the basis of a new interpretation given to that law."

The Court noted that the State's application for condonation of delay lacked any substantial justification for the delay. It observed that the acquittal was not solely based on Mohan Lal but also on the prosecution's failure to establish a clear chain of custody for the contraband. Accordingly, the Court allowed the appeal, overturning the High Court's order condoning the delay.

"Having considered the basis for the acquittal and also the fact that change of law by itself cannot be a ground for finding fault with the acquittal judgment rendered in favour of the appellant as far back as on 10.12.2018, the impugned order dated 23.06.2023 of the High Court in our assessment, cannot be sustained. Accordingly, by setting aside the order dated 23.06.2023 in the Crl. M.A. No. 1 of 2022 in Crl. Appeal No. 762 of 2023, the appeal is allowed," the Court ordered. 

Cause Title: Hyder v. State of Kerala [Special Leave to Appeal (Crl.) No(s). 14267/2023]

Appearance:-

Appellant: Advocates Ritesh Kumar Chowdhary (AOR), Niyas Valiyathodi, Akash Kumar Singh

Respondent: Advocates Harshad V. Hameed (AOR), Dileep Poolakkot, Ashly Harshad, Amar Nath Singh

Click here to read/download the Order