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2011 DIGILAW 2097 (HP)

STATE OF H. P. v. PURSHOTAM LAL GUPTA

2011-04-20

R.B.MISRA, SURINDER SINGH

body2011
JUDGMENT : SURINDER SINGH, J. 1. Cr. M.P.(M) No.528 of 2009. Heard the learned counsel for the parties and gone through the record produced before us along with the Rules of Business of the State Government. 2. In Corruption Case No.4-S/7 of 1991 the respondents were acquitted vide its judgment dated 16.8.2007 by the Learned Special Judge (Forest), Shimla, punishable under Sections 467, 468, 471, 120- B of the Indian Penal Code and Section 5 (2)1(d) of the Prevention of Corruption Act, 1988, in a so called Sintex Tanks scandal case, and the State intends to seek leave to appeal after delay of one year and eighty two days, by moving the present application, precisely on the following grounds:- (i) On getting the certified copy on 22.8.2007, the impugned judgment was examined by the Department of Prosecution and a proposal was sent to the Superintendent (Vigilance) vide letter dated 3.9.2007, for filing the appeal, which was further forwarded to the Additional Director General of Police (Vigilance), who vide his letter dated 4.10.2007 sent it to the Government with the said proposal. (ii) At the Government level, it was examined by the Law Department and also the Administrative Department and filing of appeal was not recommended, thus, it was sent to the Director (Prosecution) vide letter dated 13.11.2007, to find out the lapses in investigation/prosecution, if any, and to suggest the remedial measures. (iii) The Director (Prosecution) vide his letter dated 2.2.2008 sought the police file from the Under Secretary (Home) to the Government of Himachal Pradesh for examination. Vide letter dated 10.3.2008, the Principal Secretary (Home) responded that the case file stood already sent to the office of learned Advocate General for filing an appeal against the acquittal in (barbed wire case) Cr.A. No.282/2007 (pending hearing) arising out of FIR No.4/86. (iv) On 9.7.2008, the Director (Prosecution) opined that PWs 11, 27 and 61 as having resiled from their previous statements and did not support the prosecution case, they were deserved to be dealt with departmentally for dereliction and misconduct in discharge of their official duties. (v) While the file was being examined in the office of Director General of Police (Vigilance) for taking action as suggested by the Director (Prosecution). (v) While the file was being examined in the office of Director General of Police (Vigilance) for taking action as suggested by the Director (Prosecution). The perusal of official record reveals that in the meantime, one of the accused Purshotam Lal had served a notice under Section 80 C.P.C. for malicious prosecution and damages against the State. In the opinion of DGP a substantial question of law is involved and the prosecution evidence was not dealt with in its right perspective, thus at his level, he decided to send the matter to the Government to reconsider its decision not to file appeal. (vi) Again the Vigilance Department took up the matter with the Law Department, State Vigilance and Anti Corruption Bureau. A meeting was also convened for its discussion to suggest the appropriate and right course of action. On 6.12.2008, the authorities decided to file an appeal in the High Court and the Deputy Secretary (Vigilance) of the State Government referred the matter to the Principal Secretary (Home) to the Government of Himachal Pradesh vide his letter dated 3.1.2009 to take further action in the matter, which was received in this department on 6.1.2009 and was diarised in the Home-E Section, therefore, it took time to prepare the application for condoning the delay etc. and the appeal was finally assigned to the Advocate General for taking further action in the matter which caused the delay of 445 days. 3. On calculating the period spent on the explanation for condoning the delay in this application, duly supported by the affidavit, the Registry of this Court found that the appeal was barred by one year and eighty two days. Notice of this application was sent to the respondents. They resisted and contested the application on the grounds:- (a) that the conscious decision was earlier taken by the State Government not to file an appeal at the appropriate level after going through the evidence and facts of the case and the matter stood closed on 13.11.2007 and the Director (Prosecution) had suggested an action to be taken against the defaulting Officers/officials who turned hostile, which was administrative action to fix the responsibility. (b) Another Cr. Appeal No.282/2007 has no relevance with the present case. (c) The Director General of Police (Vigilance) has no power and authority to sit over the decision of the State Government dated 13.11.2007. (b) Another Cr. Appeal No.282/2007 has no relevance with the present case. (c) The Director General of Police (Vigilance) has no power and authority to sit over the decision of the State Government dated 13.11.2007. (d) It is specifically contended that some of the respondents served legal notice for malicious prosecution and damages upon the Principal Secretary (Home) to the Government of Himachal Pradesh, the then Director (Agriculture) and Civil Suit No.18-S/1 of 2008 was filed in the Court of learned District Judge, Shimla, which has been transferred to the Civil Judge (Senior Division), Court No.1, Shimla for its decision and the respondent-State has also filed its reply, thus to file an appeal was a counter strategy to defeat the proceedings in the civil suit. 4. Respondent No.12 Shri I.S. Azad also filed Cr.M.P. No.886 of 2010 under Section 482 of the Code of Criminal Procedure for placing on record the opinion of the Law Department dated 18.10.2007 and the noting of the file of Law Department as well as Administrative Department to show that the appeal was filed in retaliation of the civil suit filed by some of the respondents, as aforesaid. This application was also contested by the State. 5. The matter with respect to filing and non-filing of appeal is taken by the State at a Secretary level after obtaining the opinion of the Law Department. The Rules of Business of the Government of Himachal Pradesh, which were amended vide order dated 21.9.2006 with respect to the legal matters at serial No.8 to file the appeals (in civil or criminal cases), all the cases upto High Court falls within the ambit of the Secretary concerned and where there is difference of opinion between the two departments, the matter is required to be decided by the Chief Secretary and as per Rule 58 some classes of the cases may be submitted to the Chief Minister which are considered necessary. In this case, on reconsideration the matter the Honble Chief Minister took the decision to file an appeal. 6. Shri J.S. Bhogal, learned Senior Advocate, duly assisted by the other counsel for the respondents, submitted that there is no sufficient cause to condone the delay in filing the appeal either pleaded or submitted by Sh. R.K. Sharma the learned Senior Additional Advocate General. 6. Shri J.S. Bhogal, learned Senior Advocate, duly assisted by the other counsel for the respondents, submitted that there is no sufficient cause to condone the delay in filing the appeal either pleaded or submitted by Sh. R.K. Sharma the learned Senior Additional Advocate General. Otherwise also, from the facts on record, no legal and adequate reasons are decipherable which constitute sufficient cause. To buttress his arguments, he cited the judgment of apex Court rendered in Balwant Singh (Dead) v. Jagdish Singh & Ors. [ AIR 2010 SC 3043 ]. 7. On the other hand, learned Senior Additional Advocate General countered the above arguments on the ground that the facts pleaded are cogent and duly supported by the evidence on file which constitute the sufficient cause for condoning the delay in filing the appeal. 8. We have considered the rival contentions of the parties and have thoughtfully pondered over the matter. 9. As a matter of fact "sufficient cause" for not filing an appeal/leave to appeal within the period of limitation should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances and the type of each case. In Balwant Singhs case supra, the Supreme Court with reference to Section 5 of the Limitation Act observed that it should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant, thus, the Court will not punish an appellant with foreclosure of the appeal, for unattended lapses. In fact, the decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. 10. The extent or degree of leniency to be shown by a Court depends on the nature of application and facts and circumstances of the case. The want of diligence or inaction can only be attributed to an appellant only when something required to be done by him, is not done. These are some of the principles, which govern the discretion of the Court in such matters. Thus, on analysing the above principles, when we see the facts of this case we incline to condone the delay. These are some of the principles, which govern the discretion of the Court in such matters. Thus, on analysing the above principles, when we see the facts of this case we incline to condone the delay. For the reasons that though the District Attorney (Vigilance) advised to file appeal and submitted the matter through proper channel along with the grounds of appeal, it was decided at the Secretary level not to file the appeal and close the matter on the basis of the opinion by the Law Department dated 18.10.2007, which was accordingly conveyed to the Director General of Police (Vigilance) and to take action against the defaulting Officers/officials, who turned hostile to the prosecution. In response thereof, a reference was made by the Additional Director General of Police (S.V. & ACB) reconsidered the matter by the Government at the appropriate level, on the ground that two chare-sheets were prepared against the respondents, one was with respect to the barbed wire and another with regard to Sintex Tanks. On barbed wire case, the appeal was admitted for hearing and in Sintex Tanks case, taking undue advantage of the judgment of acquittal, respondent Purshottam Lal Gupta had sent notice under Section 80 of the Code of Civil Procedure for claiming the damages to the tune of Rs. 50,00,000/- for malicious prosecution etc and also against S.S. Chandel, the then Controller of Store, Ashok Thakur, R.C. Singh and Kirpal Singh, thus the case for listing and reviewing the matter and the grounds of appeal were received in the Home Department. 11. Again the matter was sent to the Law Department. They reiterated their earlier opinion vide their opinion dated 30.10.2008, but the Administrative Department in view of the civil litigation proposed to file an appeal, which was in conflict with the opinion of the Law Department and the matter was discussed with the officers of the Administrative Department and Law Department the State Vigilance and Anti Corruption Bureau and the matter was sent by the Secretary (Home) to the Chief Secretary on 6.12.2008. 12. The perusal of the record before us shows that on 8.12.2008, the Chief Secretary was of the opinion that no useful purpose would be served in filing the appeal at such a belated stage, but however submitted the matter for the decision of the Honble the Chief Minister. 12. The perusal of the record before us shows that on 8.12.2008, the Chief Secretary was of the opinion that no useful purpose would be served in filing the appeal at such a belated stage, but however submitted the matter for the decision of the Honble the Chief Minister. On 9.12.2008, a decision was taken at the higher level to file an appeal in this case, hence the matter was sent to the office of the Advocate General through the Administrative Department to file an appeal which took time in its preparation and was ultimately filed in this Court on 10.5.2009. 13. It is true that the files moved at snails pace in Government offices which otherwise should not have taken much time, but the cumulative effect of these circumstances shows that the Government had been deliberating at different levels to decide and reconsider the matter since the Senior Officers were involved and also considering the affect of filing the suit as high stakes were involved. 14. Thus, in our considered opinion, the above facts constitute "sufficient cause" for condoning the delay. Therefore, we have no hesitation in allowing this application, as such, delay in filing the application for leave to appeal is hereby condoned. Application Stands accordingly disposed of. Record produced returned to the learned Senior Additional Advocate General. Cr. M.P.(M) No.529 of 2009. 15. The State has sought leave to appeal. 16. Heard. 17. The record of the learned trial court has been received and we have perused the record. Mainly the acquittal of respondents is owing to the fact that the award of Arbitrator in favour of the respondent Purshottam Lal, was affirmed in appeal by the High Court in decree of civil Court and the learned trial Court considered these findings of a binding nature in these criminal proceedings and further took note of some contradictions appearing in the evidence of the prosecution coupled with the hostility of some of the official witnesses. 18. Thus, against the above backdrop, we feel that the case requires determination on its merits as it involves the arguable questions of law and facts, therefore, leave to appeal is granted. Application stands disposed of. Cr. Appeal No.160 of 2009. Admit. The respondents are duly represented. They are hereby directed to furnish the bonds for appearance in this appeal to the tune of Rs. Application stands disposed of. Cr. Appeal No.160 of 2009. Admit. The respondents are duly represented. They are hereby directed to furnish the bonds for appearance in this appeal to the tune of Rs. 10,000/- each with a surety of the like amount to the satisfaction of learned Registrar (Judicial) within three weeks from today. List the matter for hearing on 6th July, 2011.