Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 380 (ALL)

RAKESH DONERIA v. STATE OF U. P.

2018-02-12

RAJUL BHARGAVA

body2018
JUDGMENT Hon’ble Rajul Bhargava, J.—Heard Sri Prem Prakash, learned counsel for the applicant and learned A.G.A. for the State. 2. This application under Section 482 Cr.P.C. has been filed for quashing the order dated 4.12.2017, 15.2.2012 and 27.2.2012 as well as proceedings of Criminal Appeal No. 56 of 2012, pending in the Court of IV Additional District Judge, Agra arising out of judgement and order dated 4.6.2010 acquitting the applicant from the Case Crime No. 467 of 1998 Sections 39, 40 and 44 of Indian Electricity Act, P.S. Etmaddaula, District Agra. 3. The allegations against the applicant is that he is the proprietor of an industry in which on 11.9.1998 a raid was conducted by the officials of power corporation and several irregularities regarding tampering of metres and pilferage of electricity were noted. The meters which were found tampered were sealed by the authorities of electricity department. An F.I.R. against the applicant was registered under Sections 39, 40 and 44 of Indian Electricity Act. After investigation charge-sheet was submitted and the applicant was put to trial. He was, however, acquitted of the charges levelled against him by judgement and order dated 4.6.2010 passed by Additional Chief Judicial Magistrate, Court No. 1, Agra. The District Magistrate granted sanction to file criminal appeal against the judgement and order of acquittal dated 4.6.2010 passed in Criminal Case No. 508 of 2001. It transpires from record that on account of internal procedure for filing an appeal between the Government departments, the appeal was filed with delay of 170 days by the opposite party No. 2 alongwith delay condonation application under Section 5 of Indian Limitation Act through District Government Counsel (Criminal). The said application was marked as Criminal Misc. Application No. 18 of 2011. It further appears from the record that several dates were fixed for disposal of application under Section 5 of Limitation Act which ultimately was dismissed for the non-appearance/prosecution by the Additional District and Sessions Judge, Court No. 12, Agra on 6.7.2011. It is relevant to state that said application under Section 5 of Limitation Act was not decided on merits but simply on account of non-prosecution. Thereafter a second criminal appeal was filed against the judgement of acquittal alongwith Criminal Misc. Application No. 463 of 2011 for condonation of delay in filing the appeal. It is relevant to state that said application under Section 5 of Limitation Act was not decided on merits but simply on account of non-prosecution. Thereafter a second criminal appeal was filed against the judgement of acquittal alongwith Criminal Misc. Application No. 463 of 2011 for condonation of delay in filing the appeal. The appellate Court allowed the said application after hearing appellant-State of U.P. through opposite party No. 2 and the counsel for the applicant vide order dated 15.2.2012. In the said order, the learned judge has detailed the reasons for condonation of delay in filing the appeal. The appeal was registered as Criminal Appeal No. 56 of 2012. The said appeal remained pending since 2012 and no objection with regard to the maintainability of the said appeal was raised by the applicant. However, on 1.12.2017 an application was moved by the applicant regarding non-maintainability of the said appeal on the ground that prior to the institution of the appeal no sanction was accorded by the District Magistrate, Agra. An objection in the said application was also taken that the application for delay condonation was dismissed on 6.7.2011 and the said fact of dismissal of the earlier delay condonation application was concealed in the subsequent application which was allowed by order dated 15.2.2012. Therefore, file of Criminal Misc. Application No. 18 of 2011 be summoned. Another objection was also raised as ground No. 4 in the said application that Sri Hari Dutt Sharma, Advocate appearing for the department has not been legally authorized by any official of the Corporation especially, Sri G.K. Saraswat was never posted as Executive Engineer under whose signature on Vakalanama, he is appearing to argue the case on behalf of the Corporation. 4. I have carefully perused the impugned orders dated 15.2.2012 and 4.12.2017.I may record that the applicant was duly heard when the delay condonation application No. 463 of 2011 was allowed by an order dated 15.2.2012 as recorded in the said order. In the impugned order it has been recorded that in the second delay condonation application, there is no suppression of fact. On the contrary, the details of dismissal of application No. 18 of 2011 for non-prosecution has been mentioned therein. The objection of the applicant that second delay condonation application was based on suppression of material fact was outrightly rejected. In the impugned order it has been recorded that in the second delay condonation application, there is no suppression of fact. On the contrary, the details of dismissal of application No. 18 of 2011 for non-prosecution has been mentioned therein. The objection of the applicant that second delay condonation application was based on suppression of material fact was outrightly rejected. So far as other objection that the second delay condonation application was filed without sanction from District Magistrate has no legs to stand on as the District Magistrate has earlier granted sanction for filing appeal against the judgement of acquittal as there was ample evidence on record that the applicant’s firm was involved in pilferage of electricity running into Lacs of Rupees. 5. Learned counsel for the applicant has further contended that once Criminal Misc. Application No. 18 of 2011 was dismissed, the Court below had no jurisdiction to condone the delay in filing of the appeal by the impugned order dated 15.2.2012 without affording any opportunity and the same virtually amounts to reviewing of the earlier order which is impermissible in law. He has also submitted that in the second application for condonation of delay, the fact of dismissal of earlier application was suppressed. However, he could not reply to the query of the Court that in the application dated 1.12.2017 there is nothing to indicate that the order dated 15.2.2012 was passed without affording any opportunity to the applicant. Learned counsel for the applicant also could not offer any satisfactory explanation for challenging the order dated 15.2.2012 after a lapse of about six years, to which he submitted that appellate Court had no jurisdiction to entertain second application for condonation of delay which amounts to reviewing of the earlier order which is barred in view of Section 362 Cr.P.C. In support of his arguments, learned counsel for the applicant has relied upon the judgement of Apex Court rendered in Bindeshwari Prasad Singh v. Kali Singh, (1977) 1 SCC 57 . In this case the order passed by the Magistrate while dismissing complaint on 23.11.1968 was a judicial order on which the earlier Magistrate had recorded detailed reasons for dismissing the complaint. Therefore, second order passed by Magistrate recalling earlier order dated 23.11.1968 was held to be reviewing the earlier order which was wholly without jurisdiction. In this case the order passed by the Magistrate while dismissing complaint on 23.11.1968 was a judicial order on which the earlier Magistrate had recorded detailed reasons for dismissing the complaint. Therefore, second order passed by Magistrate recalling earlier order dated 23.11.1968 was held to be reviewing the earlier order which was wholly without jurisdiction. With due respect, I may record that in the present case earlier application for condonation of delay was not decided on merits of the case but it was simply dismissed for want of prosecution. 6. Learned counsel further relied upon the judgement of Apex Court in Hari Singh Mann v. Harbhanjan Singh Bajwa and others, (2001) 1 SCC 169 , wherein it is held that “High Court has no jurisdiction to alter or review its own judgement or order except to extent of correcting any clerical or arithmetical error.” In this case also,the High Court has disposed of matter on 7.1.1999 under Section 482 Cr.P.C. Subsequently, the said order was recalled by the High Court and in the facts of this case, Apex Court set aside the subsequent order. Learned counsel for the applicant has also relied upon following decisions of Hon’ble Apex Court: 1. State of Kerala v. M.M.Manikantan Nair, (2001) 4 SCC 752 (para-7) 2. R. Annapurna v. Ramadugu Anantha Krishan Sastry and others, (2002) 10 SCC 401 (paras 2 to 6) 3. Hindustan Construction Co. Ltd. v. Gopal Krishna Sengupta, (2003) 11 SCC 210 (paras 18, 19, 24 and 25) 4. State of U.P. v. Surendra Kumar, (2005) 9 SCC 161 (Para 8) 5. Sunita Jain v. Pawan Kumar Jain, (2008) 2 SCC 705 (paras 31 to 34) 7. With due respect, I may record that all the judgements cited by learned counsel for the applicant, pertains to provision of Section 362 Cr.P.C. which puts a complete embargo on any Court to review its own judgement and except to correct clerical or arithmetical error. The facts of present case are totally different. The Court below while allowing delay condonation application has given sufficient and cogent reasons for condoning the delay in the filing of the appeal. 8. The Hon’ble Apex Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others, (2013) 12 SCC 649 , after taking into account several judgements, laid down principles/guidelines on the issue pertaining to condonation of delay. 8. The Hon’ble Apex Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others, (2013) 12 SCC 649 , after taking into account several judgements, laid down principles/guidelines on the issue pertaining to condonation of delay. For ready reference guidelines to be adopted while considering the delay condonation application have been stated in para 15 which is quoted below: “(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 9. In the said guidelines, para 13 is very relevant which states that, “The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 10. The Courts have always been aware of the fact that manner in which files move from one department to other in the matters involving State, Public Body or entity, on account of which some delay is caused in challenging the orders before appropriate forum by the Government functionaries. I may further record that earlier application for delay condonation was dismissed on account of lackadaisical and uncaring attitude of the then District Government Counsel (Criminal) on account of which fact the department cannot be made to suffer especially in a case where huge loss has been caused to State Exchequer on account of alleged pilferage/theft of electricity by tampering meters by the applicant’s concern. As already observed, the objections on behalf of the applicant have been raised after about six years of the admission of the appeal besides it, I do not find any illegality or infirmity in the impugned orders passed by the Courts below. 11. The present application lacks merit and it is, accordingly, dismissed. 12. As already observed, the objections on behalf of the applicant have been raised after about six years of the admission of the appeal besides it, I do not find any illegality or infirmity in the impugned orders passed by the Courts below. 11. The present application lacks merit and it is, accordingly, dismissed. 12. However, in the peculiar facts of the case, the Additional Sessions Judge, Court No. 4, Agra is hereby directed to hear the appeal on merits after giving due opportunity to both the parties and decide the same within three months from the date of receipt of a copy of this order. 13. The office is directed to communicate a copy of this order to the Court concerned immediately for ensuring its necessary compliance.