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2021 DIGILAW 387 (JK)

State of J&K v. Mohd. Ayoub

2021-07-30

VINOD CHATTERJI KOUL

body2021
JUDGMENT : Vinod Chatterji Koul, J. 1. Delay of 809 days in filing application seeking leave to appeal against an order, whereby the complaint of the appellant was dismissed and accused acquitted, is sought to be condoned. The order against which leave to appeal is sought to be filed was passed on 09.11.2013 and this application has been filed on 17.04.2016. 2. The grounds on which the condonation of delay in filing the application seeking leave to appeal is that the appeal could not be filed in time because the applicant had filed an application seeking restoration of the complaint, which was dismissed on 05.05.2014 and after dismissal of the application for restoration of the complaint, the applicant applied to the higher authorities for sanction with regard to the filing of appeal in the said process it took time and, therefore, application seeking leave to appeal could not be filed well within time. This is all what has been stated with regard to the delay, which is sought to be condoned. 3. The record of the case would reveal that the complaint for offences punishable under Section 7/16 of Prevention of Food Adulteration Act was filed on 16.06.2012 before the learned Judicial Magistrate 1st Class, Thathri and as the Food Inspector remained continuously absent for four consecutive hearings and as no witness was produced, since the case was a summon trial case, the trial court dismissed the same for non appearance of the complainant and non-prosecution. Since the accused was acquitted, instead of filing an appeal, the petitioner filed an application seeking restoration of the complaint, which was rightly rejected by the learned trial Court, because it had no power to review its own order under the Code of Criminal Procedure. 4. To condone the delay, a case showing sufficient reasons, which prevented it from filing application seeking leave to appeal within the period prescribed, is to be shown and made out. 5. It is true that the Courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the Sate, but while considering the application, the Court should also find out as to whether there is any merit in the appeal filed by the State or not. 6. 5. It is true that the Courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the Sate, but while considering the application, the Court should also find out as to whether there is any merit in the appeal filed by the State or not. 6. The Supreme Court in Office of The Chief Post Master General v. Living Media India Ltd., AIR 2012 SC 1506 , has been held that: “12. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” 7. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” 7. In Amalendu Kumar Bera v. State of West Bengal, (2013) 4 SCC 52 , it has been held by the Supreme Court that: “Merely because the Respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in absence of ‘sufficient cause’ delay shall not be condoned.” 8. In Tukaram Kana Joshi v. M.I.D.C., AIR 2013 SC 565 , the Supreme Court has observed that: “The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case.” 9. In the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649 , the Supreme Court made an observation as follows: “15. From the aforesaid authorities the principles that can broadly be culled out are: 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. 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. 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. 16. To the aforesaid principles we may add some more guidelines taking note of the present-day scenario. They are: a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.” 10. From the above, it is, amongst others, apparent that 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. 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. If grounds made in application are fanciful, the courts should be vigilant not to expose the other-side unnecessary to face such a litigation. 11. In the instant case, there is delay of 809 days in approaching this Court, which cannot be termed as a delay of short duration. This, of course is an inordinate delay, which cannot be condoned in absence of sufficient reasons to be shown by the applicant, which in the instant case are lacking. 12. For the foregoing reasons, application seeking condonation of delay of 809 days in filing the application seeking leave to appeal, which has not been sufficiently explained, deserves to be dismissed. Accordingly, the application seeking condonation of delay is dismissed. Consequently, application seeking leave to appeal shall also stand dismissed.