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2017 DIGILAW 102 (JK)

Rohit Kumar v. State of J&K

2017-03-02

B.S.WALIA

body2017
JUDGMENT 1. This judgment shall decide Cr. Revision No.52/2016, Cr. Revision No.56/2016 & connected MP's on account of identical challenge in both petitions to the impugned orders condoning delay while entertaining appeal against acquittal on the ground that delay was condoned despite "Sufficient Cause" not having been established. 2. Cr. Revision No.52/2016 has been filed u/s 435 of the Cr.P.C. and in the alternative u/s 104 of the Constitution of J&K seeking quashing of order dated 17.08.2016 passed by the learned Principal Sessions Judge, Kathua in File No.292/Criminal Misc., titled State through SSP Kathua Vs. Vikram Kumar on the ground that delay of 155 days had been condoned despite sufficient cause not having been established. Likewise, Cr. Revision No.56/2016 has been filed u/s 435 of the Cr.P.C. and in the alternative u/s 104 of the Constitution of J&K seeking quashing of order dated 30.08.2016 passed by the learned Principal Sessions Judge, Kathua in File No.279/Criminal Misc. titled State through SSP Kathua Vs. Rohit Kumar on the ground that delay of 229 days in filing a time barred appeal had been condoned despite sufficient cause not having been established. 3. Brief facts of the case leading to the filing of Cr. Revision No.52/2016 as per averments contained therein are that the petitioner was falsely implicated for the commission of offences u/S's 279/304-A RPC and pursuant to registration of FIR and investigation in respect thereto, final report was presented before the Court, full-fledged trial was conducted in which the petitioner was acquitted of all the charges by the Court of the Learned Sub-Judge (Special Mobile Magistrate), Kathua vide judgment dated 30.05.2015. Appeal against acquittal was filed before the Court of the Learned Principal Sessions Judge, Kathua after the expiry of period of limitation along with an application for condonation of delay i.e. Annexure-C, whereupon the petitioner was summoned and in response to the application seeking condonation of delay, the petitioner filed a detailed response i.e. Annexure-D. After hearing arguments, the Learned Lower Appellate Court vide impugned order dated 17.08.2016 condoned delay of 155 days in late filing of the appeal. 4. 4. Impugned order dated 17.08.2016 has been challenged inter alia on the ground that the respondent had miserably failed to tender any justifiable cause for condonation of delay, sanction for filing appeal was granted by the Law Department on 20.01.2016, to explain the delay but no mention was made as to when the copy of the judgment was applied for and obtained, when sanction was applied for, how period of 12 days was consumed after receipt of sanction besides it was beyond comprehension as to why SSP Kathua would contact SSP Kathua after obtaining sanction for filing appeal, therefore, the application on the face of it was mala fide and an outcome of sheer negligence at all levels as such, no special latitude was permissible in the facts and circumstances of the case, petitioner had categorically stated that the copy of the impugned judgment was applied for and obtained on 23.12.2015 i.e., much after the expiry of the period of limitation but the impugned order was conspicuously silent on aforesaid aspect's, consequentially was palpably erroneous on account of adoption of an extremely liberal approach, although judgments relied upon had been referred to but the same had not been applied in the facts and circumstances of the case, thereby, the learned Lower Appellate Court had committed a material irregularity and illegality in condoning inordinate delay of more than 155 days especially where a right had accrued to the petitioner in respect of finality of the judgment of acquittal. As such the impugned order deserved to be set aside. 5. In Criminal Revision No.56/2016, the petitioner was proceeded against under Section 279/304-A RPC read with some other offences of the Motor Vehicles Act and after being subjected to a full-fledged trial was acquitted of the charges under Sections 279/304-A RPC but was convicted under Sections 146/196/130/177 of the Motor Vehicles Act by the Court of the Learned Sub-Judge (Special Mobile Magistrate), Kathua by virtue of judgment dated 01.04.2015. Appeal was filed before the Court of the learned Principal Sessions Judge, Kathua after the expiry of the period of limitation along with an application for condonation of delay whereupon the petitioner was summoned, filed a detailed response to the application seeks condonation of delay of 190 days (wrongly written as 229 days) opposing condonation of delay on the grounds that although the sanction for filing an appeal was granted by the Law Department on 30.11.2015 but it was nowhere stated as to when the sanction was applied for, when the copy of the impugned judgment was obtained, there was no explanation as to how the period of 47 days time thereafter was consumed, that the aforementioned aspect of the matter had not been considered by the learned Lower Appellate Court, that although the SSP Kathua was the applicant himself, it was beyond comprehension as to why the SSP Kathua would himself contact himself for requisite assistance for filing of the appeal and in the process, occasion delay of more than one month in getting the requisite information, that the learned Lower Appellate Court had adopted a very liberal approach without taking into account the factual aspects of the matter and without dealing with the points raised, that although reference was made to the judgments of the Hon’ble Supreme Court but the same was without considering the facts and circumstances in issue, thereby a material irregularity and illegality had been committed in condoning inordinate delay of 229 days. Virtually, identical grounds have been taken in Criminal Revision No.56/2016 as in Criminal Revision No.52/2016 petition. 6. None has put in appearance on behalf of the respondent. I have heard learned counsel for the petitioner. Judgment in the case was rendered on 30.05.2015. Appeal was filed against the same along with an application seeking condonation of 155/229 days delay respectively in late filing of the appeals. 7. Reliance was placed by learned counsel on the decisions in case titled State of J&K vs. Pawan Kumar & ors. 2011 (2) JKJ (HC) 170, 2010(1) SLJ 54, 1983 KLJ 364, 2011 JKJ 25944, 1997 SLJ 268 and AIR 2007 Orissa 90 to contend that sufficient cause was required to be shown by the prosecution for seeking condonation of delay and no sufficient cause having been shown by the State, application seeking condonation of delay deserved to be dismissed. 8. 2011 (2) JKJ (HC) 170, 2010(1) SLJ 54, 1983 KLJ 364, 2011 JKJ 25944, 1997 SLJ 268 and AIR 2007 Orissa 90 to contend that sufficient cause was required to be shown by the prosecution for seeking condonation of delay and no sufficient cause having been shown by the State, application seeking condonation of delay deserved to be dismissed. 8. A perusal of the impugned order reveals that the Learned Lower Appellate Court while allowing the application and condoning the delay took into account that no doubt proof of existence of sufficient cause was a condition precedent for condonation of delay but what was relevant was not the length of delay but the sufficiency of the cause and duration of delay was one of the circumstances to be considered in exercising the discretion, that although no special indulgence could be shown to the Government which, in similar circumstances, could not be shown to an individual litigant, one could not, but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels, thereby causing delay, intentional or otherwise, consequentially some latitude was not impermissible and if the appeals brought by the State were lost for such default, no person was individually affected and sufferer in the ultimate analysis, was public interest. Therefore, the expression ‘sufficient cause’ was required to be considered with pragmatism by adopting a justice-oriented approach rather than a technical and pedantic approach requiring explanation for each days delay. 9. Learned Lower Appellate Court in allowing the application seeking condonation of delay relied on the decision of the Hon’ble Supreme Court in N. Balakrishnan v. M. Krishnamurthy ( AIR 1998 SC 3222 ), wherein it was held that Section 5 was to be construed liberally so as to do substantial justice to the parties and the Court had to go into the position of the person concerned to ascertain whether the delay could be said to have resulted from the cause stated and whether the cause could be recorded in the facts of the case to be a sufficient cause and that although no special indulgence could be shown to the Government which, in similar circumstances, could not be shown to an individual litigant, one could not but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels. 10. Learned Lower Appellate Court also referred to the decision of the Hon'ble Supreme Court in New India Insurance Co. Ltd. v. Shanti Misra ( 1975 (2) SCC 840 ), wherein it was held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law and the expression ‘sufficient cause’ should receive a liberal construction and what constituted sufficient cause could not be laid down by hard and fast rules. Likewise in Brij Indar Singh vs. Kanshi Ram (ILR (1918) 45 Cal 94 (PC), it was observed that true guide for a Court to exercise the discretion under Section 5 was whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain vs. Kuntal Kumari ( AIR 1969 SC 575 ), the Hon’ble Supreme Court held that unless want of bona fide or inaction or negligence as would deprive a party of the protection of Section 5 was proved, the application must not be thrown out nor any delay refused to be condoned. In O.P.Kathpalia vs. Lakhmir Singh ( 1984 (4) SCC 66 ), the Supreme Court held that if refusal to condone the delay resulted in grave miscarriage of justice, it would be a ground to condone the delay and in the circumstances condoned the delay. In Collector Land Acquisition vs. Katiji ( 1987 (2) SCC 107 ), the Hon’ble Supreme Court considered the question of limitation in an appeal filed by the State and held as under:- “Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression ?sufficient cause is adequately elastic to enable the court to apply the law in a meaningful manner which subserves 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. This court reiterated that the expression ?every day’s delay must be explained does not meant that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. But the message does not appear to have percolated down to all the other courts in the hierarchy. This court reiterated that the expression ?every day’s delay must be explained does not meant that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. 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. 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. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice – oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step motherly treatment when the State is the applicant. The delay was accordingly condoned. 11. In the aforementioned background, the learned Lower Appellate Court came to the conclusion that in case delay was not condoned for filing appeal against the order of acquittal, the same would result in grave miscarriage of justice, accordingly, condoned the delay. 12. Mere length of delay is not a ground for denial of condonation of delay. What matters is the sufficiency of the cause shown. Admittedly, no special indulgence can be shown to Government which, in similar circumstances, cannot be shown to an individual, but at the same time the Court cannot be oblivious of the ground realities of decisions taken by officers / agencies not being taken at the same speed as are taken by an individual and of being taken at a slow pace in routine, thereby causing delay. In a case like this, delay to favour the petitioners who had been acquitted also cannot be ruled out. Accordingly, not condoning delay would amount to defeating the cause of Justice. Seeking to achieve a technical victory by opposing a appeal against acquittal on ground of limitation cannot be pressed into action in a case where it is the collective right of society at large which is sought to be protected and tested by condoning delay in comparison to a dispute inter se individuals. Accordingly, if delay is not condoned in an appeal against acquittal it would be very easy for a litigant to manipulate the system and thereby defeat the process of law solely on account of a technicality. The same is not the intendment of law. At the same time it is not that delay in filing appeal in a criminal case is to be condoned in routine or that merely because the litigant is State, the delay is to be condoned in routine. In a case such as the instant case while condoning delay, the competent authority is answerable to explain the reasons for not filing the appeal within time and in case of unsatisfactory explanation is liable to be proceeded with at the departmental level as also by way of imposition of costs to be recovered from the person responsible for the delay for which there is no satisfactory explanation. Reference in this connection is made to the decision of the Hon'ble Supreme Court in Registrar of Companies v. Rajshree Sugar & Chemicals Ltd., (2000) 6 SCC 133. Relevant extract of the same is reproduced hereunder : “...2. This appeal has been preferred from the decision of the High Court of Madras dated 17-3-1998. The appeal was filed on 26-7-1999 after a delay of 406 days. The application for condonation of delay filed by the appellant shows that the Department of Legal Affairs took up the matter only on 16-12-1998. No explanation whatsoever has been given for the appellant’s inaction during this period of nine months. The observation of this Court in State of U.P. v. Bahadur Singh regarding the latitude to be shown to the Government in deciding questions of delay, does not give a licence to the officers of the Government to shirk their responsibility to act with reasonable expedition. The observation of this Court in State of U.P. v. Bahadur Singh regarding the latitude to be shown to the Government in deciding questions of delay, does not give a licence to the officers of the Government to shirk their responsibility to act with reasonable expedition. However, since the matter has been permitted to be argued on merits, it would not be appropriate to dismiss the appeal on the ground of delay, but our disapproval of the conduct of the appellant in this regard will be reflected in the costs which we intend to award against the appellant in favour of the respondents, irrespective of our decision on merits. 13. In State of Nagaland v. Lipok Ao, (2005) 3 SCC 752 the Hon'ble Supreme Court held : “.8. The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishnamurthy it was held by this Court 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 in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as 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. 9. What constitutes sufficient cause cannot be laid down by hard-and-fast rules. In New India Insurance Co. Ltd. v. Shanti Misra this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression ?sufficient cause should receive a liberal construction. 9. What constitutes sufficient cause cannot be laid down by hard-and-fast rules. In New India Insurance Co. Ltd. v. Shanti Misra this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression ?sufficient cause should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. 12. In O.P. Kathpalia v. Lakhmir Singh a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector, Land Acquisition v. Katiji a Bench of two Judges considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression ?sufficient cause is adequately elastic to enable the court to apply the law in a meaningful manner which subserves 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. This Court reiterated that the expression ?every day’s delay must be explained does not mean that a pedantic approach should be made. The doctrine must be applied in a rational, common-sense, pragmatic manner. 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. The doctrine must be applied in a rational, common-sense, pragmatic manner. 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. 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. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the State is the applicant. The delay was accordingly condoned 13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay as accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Prabha v. Ram Parkash Kalra this Court had held that the court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. Delay as accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Prabha v. Ram Parkash Kalra this Court had held that the court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law. 14. In G. Ramegowda v. Spl. Land Acquisition Officer it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression ?sufficient cause - must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected, but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts, omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have ?a little play at the joints?. Due recognition of these limitations on governmental functioning — of course, within reasonable limits — is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of governmental functioning is procedural delay incidental to the decision-making process. The delay of over one year was accordingly condoned. 15. It is axiomatic that decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the 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 in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day’s delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-à-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal, needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. In the event of decision to file appeal, needed prompt action 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 the State is an impersonal machinery working through its officers or servants. 16. The above position was highlighted in State of Haryana v. Chandra Mani and Special Tehsildar, Land Acquisition v. K.V. Ayisumma. It was noted that adoption of strict standard of proof sometimes fails to protract (sic) public justice, and it would result in public mischief by skilful management of delay in the process of filing an appeal..." 14. Thus what has to be ensured in the ultimate analysis is that interest of Society at large does not suffer as all stake holders have a pivotal role in the upholding of the rule of law. Thus interpreted, the expression ‘sufficient cause’ is required to be considered with pragmatism while adopting a justice-oriented approach rather than testing it on the anvil of explanation for delay for day to day. 15. Viewed in the context of the position as well as law as noticed above, I am of the considered view that the impugned order by the learned lower Appellate Court in both cases does not warrant any interference except for modification to the extent that the condonation of delay would be subject to payment of Rs. 10,000/- (Rs. ten thousand) as costs to be paid by the respondent State to the petitioner in each case with the costs so paid to be recovered from the officer concerned responsible for the delay in institution of appeal after affording opportunity of hearing to the officer concerned. Revision petitions stand dismissed subject to aforesaid modification.