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2002 DIGILAW 556 (CAL)

State v. Goutam Ghosh

2002-08-20

DEBIPRASAD SENGUPTA, Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J.: This order arises out of hearing of a petition under section 5 of the Limitation Act filed by the petitioner, State of West Bengal praying for an order condoning the delay of two months and fifteen days in the filing of its Leave Petition before this Court for preferring an appeal against the Judgment and Order of acquittal of the accused persons dt. 21.7.2000 passed by the ld. Addl. Sessions Judge, 3rd Court, Alipore in S.T. No.1(2)/98 [S.C. No.25(12)/97] wherein all the accused were facing charges under sections 498A/34, 306 & 304B I.P.C. The contention of the ld. Public Prosecutor is that the State wants to challenge that order of acquittal since it is not in accordance with law and is based on misappropriation of facts and law and thereby has caused a total failure of justice. 2. The explanation of the delay has been given by the petitioner in its affidavits as follows. The impugned judgment was passed on 21.7.2000. The ld. Public Prosecutor Mr. J.N. Ray, who had conducted this trial was lying seriously ill on that date and ultimately he expired in November, 2000. In the event of any order of acquittal, the conducting P.P. has to pass an opinion over the illegality and/or the infirmities underlying the judgment and to recommend to the Govt. preferring of an appeal against that judgment and order. In the instant case, the P.P. concerned who was also the Chief Public Prosecutor for the District of 24-Parganas (South) having died immediately after the passing of the judgment could not have any scope to have the said exercises. Few months after his death Mr. Sushil Chakraborty was appointed the Public Prosecutor for that district and after taking charge of his office he passed an opinion recommending the preferring of an appeal against the aforesaid judgment of acquittal on perusal of the records of the case. After getting this opinion of the P.P. concerned the department applied for certified true copy of the judgment in the month of December, 2000 and obtained the same within few days. After getting this opinion of the P.P. concerned the department applied for certified true copy of the judgment in the month of December, 2000 and obtained the same within few days. As per the standing order of the Govt., for the purpose of preferring an appeal in such a case the District Magistrate of the concerned district has to move the Legal Remembrancer, West Bengal, justifying such prayer and the L.R. in his turn obtains the opinion of the High Court over the same and thereafter ultimately passes order for preferring the appeal. Since the impugned judgment was passed on 21.7.2000, the period of limitation of 60 days expired on 19.9.2000 in view of the provisions of section 378(5) Cr.P.C. After getting the opinion of the P.P. and observing all the formalities as required under the rules the State filed the application for leave to appeal in the month of February, 2001 and the delay thus caused was quite beyond the control of the department. Hence the State has now filed this petition for condonation of the delay to enable it to file the Leave Petition before this Court in view of the complexion and the gravity of the offence. 3. The O.Ps. who were the accused persons in the criminal case concerned before the trial Court have contested this application under section 5 of the Limitation Act by filing an affidavit-in-opposition. They have denied some of the material allegations of the petitioner-State. But they have not denied or disputed the statements that the erstwhile conducting Public Prosecutor Mr. J.N. Ray was lying seriously ill on the date on which the impugned judgment was delivered by the trial Court and that he ultimately expired immediately thereafter and also that the new Public Prosecutor Mr. Sushil Chakraborty was appointed by the Govt. But they have not denied or disputed the statements that the erstwhile conducting Public Prosecutor Mr. J.N. Ray was lying seriously ill on the date on which the impugned judgment was delivered by the trial Court and that he ultimately expired immediately thereafter and also that the new Public Prosecutor Mr. Sushil Chakraborty was appointed by the Govt. a few months thereafter and after taking charge of the office and perusing the records of the concerned case he opined that an appeal should be preferred against that judgment and thereafter the department filed application for taking certified copy of the said judgment and then the District Magistrate moved the Legal Remembrancer justifying such a proposal for preferring an appeal against that judgment whereupon the Legal Remembrancer obtained the opinion of the Public Prosecutor of High Court on that question and after that finally passed an order for preferring the said appeal and thus the State filed the application for Leave to appeal in the month of February, 2001 after observing the formalities as required under the Rules and in the process the delay for 2 months 15 days took place being quite beyond the control of the department of the Govt. concerned and such delay was totally unintentional. It is the case of the O.Ps. that the applicant-State has not shown any sufficient reason to explain away the delay which was to their knowledge and that it is as late as on 11th January, 2001 that the ld. Public Prosecutor suddenly made a proposal for preferring an appeal and there is no explanation whatsoever as to what happened prior to that. It is further stated by the O.Ps. that they filed a petition under section 340 Cr.P.C. in the trial Court in connection with which the ld. P.P., Sri Sushil Chakraborty, appeared by filing Vakalatnama on 18th December, 2000 and this shows that he had full knowledge about the impugned judgment having been passed by the trial Court on 21.7.2000 and the delay thus indulged in by the State to file the appeal in the month of February, 2001 cannot be said to have been properly explained away due to such a fact. The further contention of the O.P. is that the applicant-State has not spelt out the particular dates on which they filed petition for certified copy of the judgment or they took action for observing the various formalities as per the rules as have been alleged in its petition. Neither it has explained what it did during the period of first 60 days, that is, the period of limitation after the judgment was delivered. The O.Ps. have cited a host of reported decisions in their affidavit-in-opposition in support of their contention that under the Law of Limitation as settled by those judgments of the Apex Court and different High Courts, the delay indulged in by the State in the matter of preferring of appeal having not been explained properly is incapable of being condoned according to the O.Ps., therefore, the petition for condonation of the delay is liable to be dismissed and the proposed appeal cannot be admitted. 4. In support of their contention the O.Ps. have referred to a number of decisions. First, they have cited AIR 1993 SC 1245 (Binod Behari Singh vs. Union of India) wherein it has been held that it may not be desirable for the Govt. or the Public Authority to take shelter under the plea of limitation to defeat a just claim of a citizen, but if a claim is barred by limitation and such plea is raised specifically, the Court cannot straightaway dismiss the plea simply on the score that such plea is ignorable. Secondly, the O.Ps. have cited another decision reported in 1973 Cr.L.J. 131 wherein it has been held that in order to avail himself of the provisions of section 5 of the Limitation Act the party in default must satisfy the Court that he had sufficient cause for not making the requisite application right up to date on which the application is presented or, in other words, he must satisfactorily account for each day's delay and unless it is so accounted for, the Court has no authority in law to condone the delay. Still another ruling which the O.Ps. have relied upon is reported in AIR 1981 SC 733 which enunciated the principle that the explanations of the delay must be referable to the period prior to the expiry of period of limitation and not the period subsequent to it alone. 5. Still another ruling which the O.Ps. have relied upon is reported in AIR 1981 SC 733 which enunciated the principle that the explanations of the delay must be referable to the period prior to the expiry of period of limitation and not the period subsequent to it alone. 5. The question is if the petitioner-State can be said to have sufficiently explained the delay of 2 months 15 days in filing the application for leave to file an appeal against the impugned judgment of acquittal and therefore is entitled to have the delay condoned. According to section 5 of the Limitation Act, any appeal or application other than application under Order XXI C.P. Code may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or not making the application within such period. From time to time the expression "sufficient cause" has been subjected to scrutiny at the hands of the Courts in India and the trend shows that there has been a gradual change in the outlook and attitude of the Apex Court as well as different High Courts of our country in finding out the true purport and spirit in which the above provisions of section 5 have been enacted and, more particularly, in which the words, "sufficient cause" were used. In Dinabandhu vs. Indumani, reported in AIR 1954 SC 411 , it was held that the words "sufficient cause" should receive liberal construction. In another subsequent judgment of the Apex Court reported in AIR 1978 SC 537 (Sandhyarani vs. Sudharani) it was observed that the expression "sufficient cause" should receive liberal construction so as to advance substantial justice and ordinarily delay in filing appeal should be condoned when no negligence, inaction or want of bona fides is imputable to the appellants and that in an application for condonation of delay the said expression cannot be construed as a cause beyond the control of the party. Similar voice was echoed in still another verdict of that Court given in a decision reported in AIR 1988 SC 897 (Ramgawda vs. Land Acquisition Officer) when it held that each case will have to be considered in the peculiarities of its own special facts and generally delays in bringing the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona tides is imputable to the parties seeking condonation of delay. Another milestone in the progress of the idea of taking liberal view in the matter of condonation of delay in admitting of appeals was found to be set when Supreme Court in Shankar Rao vs. Chandra Sen, reported in AIR 1987 SC 1726 , observed that the Court should make a justice-oriented approach and should not make an injustice-oriented approach and reject the application for condonation of delay in filing an appeal, while in D.P. Katpalia vs. Lakshmi Singh [ AIR 1984 SC 1744 corresponding to (1994)4 SCC 66] it held that if the refusal to condone the delay resulted in grave miscarriage of justice it would be a ground to condone the delay. Again, in State of Haryana vs. Chandramal, reported in AIR 1996 SC 1623 , the Supreme Court has reiterated the same principle that the expression, "sufficient cause" should be considered with pragmatism and justice-oriented approach rather than detection of sufficient cause for explaining everyday's delay and that factors which are peculiar to the nature and characteristic of the functioning of the governmental conditions would be cognizant to and require adoption of pragmatic approach in justice-oriented process. In a very recent judgment of the Apex Court the case before approval has been strongly relied on AIR 2002 SC 1201 .This trend towards the liberal saw its culmination when the Apex Court in still another of its epoch-making judgments came down heavily on the proneness of the Courts below to allow technical considerations prevailing upon the cause of substantial justice. This was in Collector of Land Acquisition vs. Katiji, reported in AIR 1987 SC 1353 . This was in Collector of Land Acquisition vs. Katiji, reported in AIR 1987 SC 1353 . Herein the Apex Court of our country has pronounced a thoroughly radical verdict by enjoining as follows: "The legislature has conferred the power to condone delay by enacting section 5 of the Indian Limitation Act, 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:–– 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. 'Every days delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations 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 a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 6. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 6. In the light of the above salutary principles let us analyse the facts of our present case and see whether they deserve to be governed by the same. Here the ground for the delay as spelt out in the petition is as follows. The judgment of acquittal in the concerned session case was passed on 21.7.2000. The learned Public Prosecutor who was conducting the case on behalf to the prosecution became seriously ill when the said order was passed. Ultimately he expired in the month of November, 2000. As per the rules, when an acquittal order is passed in a sessions case, the conducting P.P. has to pass an opinion over the infirmities of the judgment and also to recommend to the Govt. the preferring of an appeal against the judgment in question. Here, the P.P. Mr. J.N. Ray having at the relevant time suffered serious illness ultimately leading to his death the abovementioned tasks could not be performed by him. Few months after his death Sri Sushil Chakraborty was appointed as Public Prosecutor for the District of 24-Parganas (South) and after taking charge of his office and after perusal of the records he passed an opinion recommending the preferring of an appeal against the said judgment of acquittal. On getting this opinion of the P.P. the concerned department of the Government applied for certified copy of the judgment in December 2000. The other required formalities were then observed. The District Magistrate moved the Legal Remembrancer who in his turn obtained opinion of the Public Prosecutor of the High Court on the question and then passed an order giving approval to the preferring of the proposed appeal. Thereafter the State filed the application in question seeking Leave to Appeal in February, 2001 and in the process delay of 2 months 15 days occurred. 7. The question is whether the delay has been explained away by the applicant-State by establishing a "sufficient cause". Thereafter the State filed the application in question seeking Leave to Appeal in February, 2001 and in the process delay of 2 months 15 days occurred. 7. The question is whether the delay has been explained away by the applicant-State by establishing a "sufficient cause". As we have seen the well-settled trend from a host of decisions of the Apex Court, the expression cannot be construed as a cause beyond the control of the party and when there is no gross negligence or deliberate inaction or want of bona fides imputable to the applicant, the cause should be taken as sufficient and the delay should be condoned. In the present case, it is not disputed by the O.P. that the erstwhile ld. P.P. Mr. J.N. Ray, who was conducting the hearing of the case during trial was seriously ill on the date on which the impugned judgment was delivered i.e. on 21.7.2000 and ultimately he expired immediately thereafter and a few months after that a new P.P., named, Mr. Sushil Chakraborty, was appointed by the Govt. and after perusing the records this new P.P. recommended the preferring of an appeal and on 11.1.2001 he made a proposal to the Legal Remembrancer for preferring an appeal against the said judgment. These allegations having not been denied or disputed, it goes without saying that the delay for the period commencing from the date of death of the erstwhile Public Prosecutor till the date on which the newly appointed P.P. took charge of that office could not be attributable to any deliberate inaction of the department concerned. It is a common knowledge that the appointment of a Public Prosecutor cannot be effected overnight and a minimum time has to be taken, the Government having had to negotiate so many formalities in the process. Therefore, the time gap between the date of death of the erstwhile P.P. and that of the appointment of the new P.P. in the former's place is bound to emerge and this cannot be ascribed to any negligence or deliberate inaction on the part of the Government. In the above mentioned judgment in Collector, L.A., Anantanag vs. Mst. Katiji & Ors. In the above mentioned judgment in Collector, L.A., Anantanag vs. Mst. Katiji & Ors. ( AIR 1987 SC 1353 ) the Apex Court gave recognition to certain special inconveniences confronting the "State" in particular on account of its having" an impersonal machinery, the inherited bureaucratic methodology imbued with the note-making, file pushing and passing-on-the-buck ethos". Their Lordships observed that in the case of "State" since no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal, the delay on its part was less difficult to understand than in the case of delay occurring to a private individual. In the case at hand, as we have pointed out above, the time that was taken in excess of the period of limitation could not be taken to be due to any deliberate inaction on the part of the employees of the concerned department of the Government, far less their culpable negligence or mala fides. The basic factor leading to such a situation was the demise of the erstwhile conducting P.P. He was the man who was solely conversant with all the details of the case and once the judgment was delivered, it was possible for him alone to know and opine within a reasonably short period whether an appeal should be preferred against the same. But since the ice-cold hands of death silenced him for good, that was not to be. Thereafter, few months were taken by the Govt. to appoint the new Public Prosecutor of the district in his place. As we have observed above, this length of time taken by the Government in giving the new appointment cannot be taken as any part of the delay deliberately caused at its instance or remaining unexplained. The fact that during the .period from the date of the judgment till the date on which the newly appointed Public Prosecutor took charge of the office, there was no existence of any permanent Public Prosecutor at all itself should be taken to constitute a good ground explaining away the inaction of the concerned department of the Government in not filing any such appeal during this period. 8. Regarding the period taken by the State to prefer the appeal after the joining of the new Public Prosecutor, Mr. 8. Regarding the period taken by the State to prefer the appeal after the joining of the new Public Prosecutor, Mr. Sushil Chakraborty, the case of the applicant is that this period was consumed in observing the formalities required to be performed before an appeal against an acquittal order by the State. In this connection the contention of the ld. Advocate for the O.P. is that after the impugned judgment and order of acquittal was passed, the O.P. filed a petition before the trial Court under section 340 Cr.P.C. which was numbered as Misc. Case No.30 of 2000 and in that Misc. case this very Public Prosecutor, Mr. Sushil Chakraborty, appeared for the State by filing Vakalatnama on 18.12.2000 and also filed two petitions to contest that matter. It is contended that this shows that this Public Prosecutor came to know about the matter well ahead the 11th January, 2001 on which he proposed for the first time to the Legal Remembrancer that appeal should be preferred. According to Mr. Mukherjee, there is no explanation why no step was taken to file the appeal at least by that time, i.e., 18th December, 2000 when the ld. P.P. evidently had the knowledge about the fate of the sessions case in question. We are not impressed by this argument. It is not correct to say that no explanation has been offered in this respect. It is the positive averment made in the application (vide the supplementary affidavit filed by the State) that Mr. Chakraborty after having taken charge of the office perused the records of the case and opined that it was a fit case for preferring of appeal and after getting his opinion the department applied for certified copy of the judgment in December, 2000. It should not be forgotten that giving of opinion involves some mental exercise. It cannot be expected that the Public Prosecutor would deliver it overnight in a mechanical way particularly when he was not the conducting P.P. during the trial of the case. After he formed his opinion, it was to be communicated to the Legal Remembrancer and his office had to take its time in doing that. It cannot be expected that the Public Prosecutor would deliver it overnight in a mechanical way particularly when he was not the conducting P.P. during the trial of the case. After he formed his opinion, it was to be communicated to the Legal Remembrancer and his office had to take its time in doing that. Similarly, after the District P.P.'s opinion was made known to the Legal Remembrancer he was to obtain the opinion of the P.P. of the High Court and here also the respective offices of the L.R. and the P.P. of High Court would take their minimum time and it is in connection with this that Their Lordships in the case of Land Acquisition Collector, Anantanag ( AIR 1987 SC 1353 ), quoted above, gave recognition to the reality by characterising the bureaucratic methodology as one imbued with note-making, file pushing, passing-on-the buck ethos, etc., because nobody was personally hit or hurt by the result of the litigation concerned. From this we are inclined to arrive at our finding that the time that was consumed in the processing of such matters in the various departments as aforesaid was due to the factors which are inherent in the system and beyond control of the authorities and it can by no means be termed as deliberate inaction or negligence on the part of the State. If there is nothing to show that there was any intentional delaying on the part of the employees concerned or the Public Prosecutor or other authorities but, on the contrary, the facts and circumstances show that the passage of time was beyond the control of the people who were responsible for taking steps to file the appeal, then in such an event, if the Court rejects the petition and does not condone the delay, then it will definitely be failing to make a justice––oriented approach to the matter, being regardless of the principle enunciated in the leading judgment of the Apex Court mentioned above, viz., that when substantial justice and technical considerations 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. This will be more so in view of the position spelt out by the applicant that the charges framed in the concerned sessions case against the accused O.Ps. This will be more so in view of the position spelt out by the applicant that the charges framed in the concerned sessions case against the accused O.Ps. being under sections 498A & 306/304B I.P.C are extremely grave and the judgment of acquittal has been passed by the trial Court by taking an erroneous view of both law and facts involved in the case and making a wrong appreciation of evidence. Thus, the delay in this case having not been occasioned deliberately, nor being on account of any culpable negligence or mala fides, refusal on the part of the Court to condone this delay may, as was apprehended by Their Lordships of the Apex Court in the abovementioned judgment, result in a meritorious matter being thrown out at the very threshold and cause of justice may be defeated. Here, the delay cannot be taken as inordinate. It is not in terms of years, nor even half a year, nor even three months. It is for two and half months. The argument of Mr. Mukherjee, ld. Counsel for the O.Ps., has been that delay for each and every day specifically has not been explained. In the language of the provisions of section 5 of the Limitation Act there is no requirement that each day should be taken up separately and explanation should be offered as to what happened to it. In the above ruling the Hon'ble Supreme Court has made a departure from this conventional idea by enjoining that the saying "everyday's delay must be explained" does not mean that a pedantic approach should be made. Their Lordships then sarcastically lashed out at the idea saying "why not every hour's delay or every second's delay?" According to them, the doctrine must be applied in a rational, commonsense; pragmatic manner. We are of the opinion that in the present case taking into account all the facts coming into play, as narrated above, the delay of 2½ months that creeped in has been on the whole satisfactorily explained by the applicant-State. To require an explanation threadbare as to what the applicant-State did on each date separately and severally will be an act of overdoing which is not the intention of the law or the legislature and which will be in utter derogation of the letter and spirit of the findings of the highest Court of our land in the above quoted judgment. It should not escape our notice that in that judgment Their Lordships have lamented seeing that their message has not percolated down to all other Courts in the hierarchy that the expression, "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of the justice that being the life-purpose for the existence of the institution of Courts and the Apex Court has been systematically making a justifiably liberal approach in matters instituted in that Court. 9. Having regard to the entire discussion made above, particularly the sermon of the highest Court of our country as to the true spirit and philosophy that should govern the interpretation of the expression "sufficient cause", we are satisfied that sufficient cause exists for the delay. Accordingly, we allow the petition under section 5 of the Limitation Act after condoning the delay. The application for leave to appeal be placed before an appropriate Bench for hearing. Debi Prasad Sengupta, J.: I agree. Writ petition allowed.