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2010 DIGILAW 117 (GAU)

State of Tripura v. Siddik Miah & Anr.

2010-02-16

U.B.SAHA

body2010
U. B. Saha, J.;- The instant application is filed under Section 5 of the Limitation Act, 1963 for condoning the delay of 150 days along with an application for granting leave to prefer appeal by the petitioner-State against the order of acquittal dated 27.02.2009 passed by the learned Addl. Sessions Judge, Sonamura, West Tripura in S.T. 42 (WT/S)/2008 acquitting the respondents from the liability of charges framed under Section 376 (1) and 323 of IPC. 2. Heard Mr. R.C. Debnath, learned Public Prosecutor in-charge for the State petitioner as well as Mr. K.N. Bhattacharjee, learned senior counsel assisted by Mr. R.C. Deb, learned counsel for the respondent accused. 3. In support of the contentions made in the petition for condonation, Mr. Debnath would contend that delay of 150 days caused in filing appeal against the judgment acquitting the respondents is bona fide and not intentional as the State is a machinery impersonal and nobody is looking into the interest of the Government properly though the employees/officers are entrusted with specific responsibilities but those employees/officers try to do their job leisurely and, not only that, they also try to shift thir responsibilities to other officers. In this way the decision for preferring appeal could not be taken in time and as a result of which even the application for obtaining the certified copy was also filed at a belated stage. He also contended that the learned PP who conducted the trial of the case even did not place the original certified copies of the judgment dated 27.02.2009 along with all other relevant papers like deposition and police docket while sending the file to the Law Department. At that situation there was no other alternative to the Law Department except to request the learned Addl. PP, Sonamura to place the original certified copy of the judgment in question. On request of the Law Department the Addl. PP, Sonamura applied for the certified copy of the judgment and only on 24.04.2009, i.e. after about two months and the same was ready for delivery on 25.04.2009 and thereafter the judgment along with the police docket were sent to the Law Department for its decision. On request of the Law Department the Addl. PP, Sonamura applied for the certified copy of the judgment and only on 24.04.2009, i.e. after about two months and the same was ready for delivery on 25.04.2009 and thereafter the judgment along with the police docket were sent to the Law Department for its decision. Thereafter, the file was placed before the office of the learned PP, High Court and the learned PP, High Court took the file to his residential chamber for preparing the draft but unfortunately the file was mis-placed as at the relevant time the residence of the learned PP was being renovated and not only the instant file, even other files were also mixed with the books and files kept in the room. After locating the file, on 22.09.2009 the learned PP dictated the memo of appeal along with the application for special leave to his Secretary/Stenographer but the Secretary/Stenographer of the learned PP could not type it out in time as his wife was pregnant and admitted to a Nursing Home. Only after her release from the Nursing Home on 15.10.2009 the file was placed before the learned PP. Accordingly, the same was sent to the Law Department but by this time delay of 150 days was caused in filing the appeal. Hence, the application for condonation of delay. 4. He further contended that there is no doubt that the proposed appeal is against the order of acquittal and unless the Court re-appreciates the evidence on record the accused-respondents are innocent in the eye of law but at the same time it is the duty of the State also to send a message to the victim that the State is trying to provide justice to her. It is also mentioned in the condonation petition that limitation for preferring appeal against the order of acquittal is 90 days and in the instant case as the judgment was delivered on 27.02.2009 acquitting the respondents, the date for preferring appeal within the limitation was expired on 28.05.2009 and the memo of appeal along with the application for special leave was filed on 27.10.2009. Hence, 150 days delay was caused in preferring the appeal in question. 5. Hence, 150 days delay was caused in preferring the appeal in question. 5. He also contended that it is the duty of the petitioner-State to show sufficient cause for causing delay as the same is the condition precedent for exercising the extra ordinary restriction vested in the Court. He also contended that the Court is to consider whether the delay as explained by the State on the peculiar circumstances of the case is sufficient or not and more so, whether on the ground of delay caused due to the negligence on the part of the State officials the victim should be denied justice by a Court of law when the charges levelled against the respondents are heinous in nature, particularly when out of two charges levelled against the respondents one is under Section 376 of the IPC. He ultimately prays for condonation of delay of 150 days in preferring the appeal against the judgment dated 27.02.2009 passed by the learned Addl. Sessions Judge, Sonamura, West Tripura acquitting the respondents from the charges levelled against them under Sections 376 (1) and 323 of IPC. 6. The respondents by way of filing an objection resisted the prayer for condonation of delay in preferring the appeal. Mr. Bhattacharjee, learned senior counsel for the respondents submits that when the respondent-accused persons have been honourably acquitted by the learned trial Court from the charges levelled against them, the Court has to be loath from exercising its discretionary power under Section 5 of the Limitation Act as vested in it. 7. Mr. Bhattacharjee also submitted that the State-appellant explained the delay of 150 days and prays for condoning the same but actually the delay occurred in filing the appeal is 180 days as the State counted the limitation for filing appeal against acquittal as 90 days instead of 60 days. Therefore the delay of 30 days remains unexplained. He referred to the judgment of a Division Bench of this Court in the case of Union of India & Ors. Vs. Wood Crafts Products Ltd. & Anr. reported in 2001 (1) GLT 34 : 2001 (1) GLJ 369 wherein the Division Bench of this Court taking note of the case of Collector, Land Acquisition, Anant Nag Vs. Katiji & Ors., reported in AIR 1987 SC 1353 and the decision of State of Haryana Vs. Vs. Wood Crafts Products Ltd. & Anr. reported in 2001 (1) GLT 34 : 2001 (1) GLJ 369 wherein the Division Bench of this Court taking note of the case of Collector, Land Acquisition, Anant Nag Vs. Katiji & Ors., reported in AIR 1987 SC 1353 and the decision of State of Haryana Vs. Chandramoni, AIR 1996 SC 1623 as well as the case of P.K. Ramchandra Vs. State of Kerala, AIR 1998 SC 2276 held that the term 'sufficient cause' is not defined under Section 2 of the Limitation Act but by the same it means so far has been construed as beyond control of the party seeking indulgence for extension of the period of limitation. But from a bare perusal of Section 5 of the Limitation Act and its preamble, it manifests that Limitation Act is an exhaustive code governing the law of limitation in respect of matters specially dealt with it. This is why the law of limitation is a panacea to prevent disturbance or deprivation of what may have been acquired in equity of justice or what may have been lost by the parties or inaction/negligence of laches. The Courts are not permitted to travel beyond the provisions of the Act or to supplement them. The Court cannot grant exemption from limitation on equitable consideration or on the ground of hardship. While referring to the aforesaid law report Mr. Bhattacharjee would further contend that if the Court allows the prayer for condonation of delay, as prayed for, then the present respondents will be again harassed by the prosecution though they have already been honourably acquitted by the Trial Court. 8. In response to the aforesaid submission of Mr. Bhattacharjee, Mr. Debnath relied upon a decision of the Apex Court in the case of State of Nagaland Vs. Lipok Ao & Ors. reported in AIR 2005 SC 2191 wherein the Apex Court after taking note of the case of Katiji (supra) as well as Chandrarnoni (supra) noted that to proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the Court. What counts is not the length of delay but the sufficiency of the cause and the shortness of the delay is one of the circumstances to be taken into account hi using the discretion. He also relied upon the case of State of Manipur & Ors. Vs. What counts is not the length of delay but the sufficiency of the cause and the shortness of the delay is one of the circumstances to be taken into account hi using the discretion. He also relied upon the case of State of Manipur & Ors. Vs. Khumanlambam Nilaroton Singh reported in 2007 (3) GLT 650 : 2007 Lab IC 2754 wherein a Division Bench of this Court, in which I was a party, condoned the delay of 554 days in filing the Writ Appeal taking note of Lipok Ao & Ors. (supra). The Apex Court also took note of the case of Balakrishnan Vs. M. Krishnamurthy, AIR 1998 SC 3222 wherein it was held that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go to the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case is sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels. It is also noted that it is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay- intentional or otherwise-is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression 'sufficient cause' should, therefore, be considered with pragmatism injustice-oriented approach rather than the technical detection of sufficient cause for explaining everyday's delay. 9. It is further noted that in the event of decision to file appeal needed prompt action and should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. 9. It is further noted that in the event of decision to file appeal needed prompt action and should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. (Emphasis supplied) 10. Having heard the learned counsel for the parties and on going through the law reports relied upon by them it appears that none of those cases are relating to application for condonation of delay in a criminal justice system though the principle relating to condoning delay under Section 5 has been explained and discussed. This Court has gone through the judgment against which the appeal is preferred. On going through the judgment it cannot be said that there is no material for preferring appeal. Whether the accused respondents will be free from the charges levelled against them or not that would be decided in the appeal on the basis of materials on record. Therefore, it would not be proper for this Court to express any opinion regarding the merit of the appeal while deciding the prayer for condonation of delay. The contention of Mr. Bhattacharjee, learned senior counsel that the period of limitation for preferring appeal against the order of acquittal is 60 days and not 90 days basing on subsection (5) of Section 378 CrPC is not helpful for the decision in the instant petition as it appears from sub-sections (4) & (5) of Section 378 CrPC that speaks about appeal against the order of acquittal instituted on the basis of a compliant. But in the instant case the order of acquittal passed by the learned trial Court is not from a case instituted upon a compliant. As in the provisions of Section 378 CrPC sub-section (1) Legislature did not prescribe any period of limitation for presenting an appeal by the State from an original or appellate order of acquittal passed by any Court other than High Court, therefore, according to this Court the period of limitation for leave to appeal would be guided by the law of limitation particularly. Article 114 (a) of the Limitation Act where the period of limitation is prescribed as 90 days for preferring appeal from an order of acquittal. 11. There is no doubt that the provisions of sub-section (1) of Section 378 CrPC are subject to the provisions of sub-section (5) also whereas the provisions of sub-section (2)are not subject to the provisions of sub-section (5). It cannot be therefore said by stretch of imagination that there is any period of limitation prescribed for presenting application for leave to appeal on behalf of the State. The provisions of sub-section (1) under which the State may present appeal from an order of acquittal are obviously subject to the provisions of sub-section (5). Sub-section (5) prescribes the period of limitation for presenting application under sub-section (4) for granting of special leave to appeal from an order of acquittal passed in a case instituted upon complaint, under sub-section (1) the State Government may present appeal from order of acquittal passed in any case, which may be even a case instituted upon complaint. According to this Court the submissions of Mr. Debnath has some force. 12. Under sub-section (1) of Section 378 CrPC the State Government may prefer an appeal even from the order of acquittal passed in any case which may be a case instituted upon complaint and when the state has to prefer appeal against the order of acquittal passed in a case instituted upon compliant the application for leave to appeal under subsection (3) of Section 378 has to be made within the period as prescribed by sub-section (5) of Section 378 CrPC. Not only that, in Section 2(d) of CrPC where the definition of compliant has been mentioned, it is specifically stated that complaint means any allegation made orally or in writing to a Magistrate with a view to his taking action under this code that some persons, whether known or unknown has committed an offence but does not include a police report. But in explanation a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant meaning thereby that the report made by a police officer in a case which discloses after investigation the commission of cognizable offence cannot be treated as a complaint rather the same has to be treated as a police report and subsection (5) of Section 378 has no manner of application, so far an application for leave for preferring appeal against the order of acquittal from a case instituted on the basis of a police report is filed. And there is no doubt in the mind of this Court that the legislature while exercising its wisdom considered the fact that the period of limitation for presenting application for leave to appeal provided in sub-section (5) would only govern such application under sub-section (3) of Section 378 CrPC made on behalf of the State Government for grant of leave to appeal which relates to an order of acquittal passed in a case instituted upon complaint only. The period of limitation is six months where the complainant is a public servant and 60 days in other case computed from the date of the order of acquittal meaning thereby that an application for granting leave to prefer appeal against the order of acquittal against the complaint can be even filed within six months if such complaint is filed by a public servant and 60 days in every other case computed from the date of the order of acquittal. 13. Hence, the application for leave to appeal from an order of acquittal passed in a case instituted otherwise upon a complaint may be presented within the period of limitation prescribed under Article 114 (a) of the Limitation Act, 1963. Therefore, the period of limitation for presenting appeal on behalf of the State Government from an order of acquittal is 90 days from the date of that order of acquittal and not 60 days. Therefore, the period of limitation for presenting appeal on behalf of the State Government from an order of acquittal is 90 days from the date of that order of acquittal and not 60 days. In the instant case as the petitioner-State-appellant filed the application for condonation of delay of 150 days excluding 90 days, as they are entitled to in view of the provisions of Clause (a) of Article 114 of the Limitation Act, according to this Court, the said delay is also properly explained, and it would not be proper for this Court to reject the prayer for condonation of delay in preferring the appeal against the order of acquittal along with the application for granting leave to prefer appeal. If this Court would reject the prayer for appeal then neither the Public Prosecutor nor the officer of the Law Department would suffer rather the citizen, particularly the victim who approached the State through its machinery for getting justice would be deprived from her legitimate right to justice as protected by the Constitution of India. In view of the decision of the Apex Court in the case of Lipok Ao & Ors. (supra) wherein the Apex Court noted that the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. (Emphasis supplied) 14. And also when this Court is satisfied with the reasons stated for causing delay in preferring appeal against the order of acquittal along with an application for granting leave to prefer appeal required under Section 378 CrPC sub-section (1) it would not be proper again for this Court to reject the application for condonation of delay consequent where of the appeal as preferred would also be dismissed on technical ground of limitation the duty of the Court is not to deny justice on technical ground but to render substantial justice, if really a case is made out for preferring appeal. 15. 15. This Court also in the case of Wood Crafts Products Ltd. (supra) observed, inter alia, that under the concept of welfare State, in order to promote social justice, it is the bounden duty of the State to protect and preserve the public interest and public fund. Since the public exchequer is incurring heavy expenses on the different departments of the State and its instrumentalities, it is incumbent upon them to be fast and prompt in discharging their duties and in carrying their responsibilities with due diligence. If there is good case on merit and the application for condonation of delay, unintentional or otherwise, filed by the State is not allowed, it is certain that damage will be caused to the public interest and public fund. Unfortunately, the officers of the State and its instrumentalities carry on impression that with each and every case, the delay caused in filing an appeal is bound to be condoned, taking it for granted on the basis of a few decisions where the delay has been condoned considering the facts of those cases where sufficient causes were shown and proved. This Court also noted that the application in that case for condonation of delay had been filed in a very cryptic and casual manner without explaining the delay as required by law of limitation. 16. This Court has already noted in the earlier part of this order that the grounds taken in the memo of appeal require an examination of the order of acquittal under appeal and in view of the discussion made in the foregoing paragraphs of this order, this Court thinks it fit and proper to exercise its discretionary power for the interest of justice to condone the delay of 150 days caused in preferring the present appeal along with the application for granting leave to prefer appeal by the petitioner-State-appellant. 17. Accordingly, the delay of 150 days in preferring the appeal is condoned and the miscellaneous application is disposed of.