State of Kerala, Represented By The Additional Public Prosecutor v. Adoor Prakash, S/O. Kunhiraman
2025-08-13
A.BADHARUDEEN
body2025
DigiLaw.ai
JUDGMENT : A. Badharudeen, J. This is a petition filed to condone delay of 225 days in filing the revision petition. 2. The reasons for condoning the delay in a nutshell could be gathered from paragraph Nos.3 and 4 of the affidavit in support of this petition and the same are as follows: “3. The Criminal Revision Petition against the order of the Court below ought to have been filed within 90 days from the date of the issuance of a certified copy of the impugned order. As per the existing Rules and Procedures, the order is to be perused and examined by the Investigating Officer of the case, the Additional Legal Advisor, who is in charge of the case. The Legal Adviser has advised to challenge the impugned order as per the remarks dated 6/10/2021. In turn the Superintendent of Police, Vigilance and Anti- Corruption Bureau, Northern Range, Kozhikode has forwarded the request dated 25/10/2021 to Director, VACB to file appeal against the impugned order. Subsequently the Director, VACB has vide letter dated 9/11/2021 reques the Government for according order to file appeal against the impugned order. The Home and Vigilance Department which decides and issues order to file appeal against the impugned order. 4. In the case at hand, the Home and Vigilance Department has decided to prefer Revision Petition before Hon'ble High Court against the impugned order passed by the Court below, vide G.O (Rt) No.2421/2022/Home dated, Thiruvananthapuram 29/8/2022. Subsequently, the Government intimated the Government Order to the Director, VACB. The Director, VACB vide letter dated No.C11 (SJK) 4824/2011 dated 3/9/2022 directed the Superintendent of Police, Northern Range, Kozhikode to take further steps to file the appeal before this Hon'ble Court. Pursuant to the communication from the Director, VACB, the Superintendent of Police, VACB has directed me to entrust the entire file with the Advocate General, Kerala. I have entrusted the file with the Advocate General Office on 6/9/2022. Subsequently, the Public Prosecutor who is in charge of the case has to pursue the Case Diary and the impugned order passed by the court below. The Public Prosecutor who in charge of the case has informed me that a certified copy of the impugned order is to be obtained from the court below. I applied for a certified copy of the impugned order on 06.08.2022 and obtained the same on 16.09.2022.” 3.
The Public Prosecutor who in charge of the case has informed me that a certified copy of the impugned order is to be obtained from the court below. I applied for a certified copy of the impugned order on 06.08.2022 and obtained the same on 16.09.2022.” 3. Respondent Nos.1 and 2 appeared and objected condonation of delay. In the counter affidavit filed by the 1 st respondent as on 23.10.2024, the genesis of the case has been narrated which started as early in the year 2006 and also non-explanation of the delay in proper form. Similarly, the 2 nd respondent also filed objection. That apart, additional statement also filed by the 1 st respondent. Today, at the time of argument, summarizing the contention, chronology of events after delivery of the impugned order also has been submitted by the learned counsel for the 1 st respondent. 4. According to the learned counsel for the 1 st respondent, even though the order in C.C.No.6/2011 was passed on 30.09.2021, the Director, Vigilance & Anti- Corruption Bureau, Thiruvananthapuram, wrote a letter to Home Department seeking permission to file an appeal only on 09.11.2021. On 29.08.2022, the Home Department issued G.O. (Rt) No. 2421/2022/HOME, granting permission to the Director, Vigilance and Anti-Corruption Bureau (VACB), to file an appeal against the order dated 30.09.2021 in C.C. No. 6/2011. Follow up action was recommended on 03.09.2022. Thereafter, on 06.09.2022, the deponent of the affidavit entrusted the file to the office of the Advocate General and applied for a certified copy. The certified copy was obtained on 16.09.2022. The investigating officer signed the affidavit in support of this petition on 21.12.2022, stating that the delay is 225 days. However, the revision petition was filed only on 13.01.2023 and according to the learned counsel for the 1 st respondent, the actual delay in the meantime would come to 467 days. That apart, 23 days of delay in between 21.12.2022 and 13.01.2023 not explained. 5. While seeking condonation of delay, it is pointed out by the learned Special Public Prosecutor appearing for the revision petitioner that, in the connected Crl.R.P.No.173/2023, the delay was condoned and was admitted. The other connected Crl.R.P.No.358/2023 posted for hearing on admission. Therefore, this connected matter also may be posted for admission hearing along with other revision petitions after condoning the delay.
The other connected Crl.R.P.No.358/2023 posted for hearing on admission. Therefore, this connected matter also may be posted for admission hearing along with other revision petitions after condoning the delay. It is pointed out by the learned Special Public Prosecutor further that 467 days’ delay was calculated by the learned counsel for the 1 st respondent by including the period of exclusion in between 01.03.2022 to 31.05.2023. therefore, the delay is not 467 days. It is pointed out that the procedural lapses caused the delay and the same may not be adjudged against the petitioner not to consider the points raised in this revision petition, which would warrant reversal of the order. 6. According to the learned counsel for the 1 st respondent, condonation of delay is not mechanical and it is necessary to show sufficient cause, particularly when the parties are under the veil of litigation for years. The learned counsel placed decision of the Apex Court in State of Madhya Pradesh v. Ramkumar Choudhary reported in 2024 Supreme (SC) 1136, wherein the Apex Court addressed condonation of delay of 5 years 10 months and 16 days and observed in paragraph No.7, after discussing the legal position in paragraph Nos.5 and 6, which reads as under: “7. There is one another aspect of the matter which we must not ignore or overlook. Over a period of time, we have noticed that whenever there is a plea for condonation of delay be it at the instance of a private litigant or State the delay is sought to be explained right from the time, the limitation starts and if there is a delay of say 2 years or 3 years or 4 years till the end of the same. For example if the period of limitation is 90 days then the party seeking condonation has to explain why it was unable to institute the proceedings within that period of limitation. What events occurred after the 91 st day till the last is of no consequence. The court is required to consider what came in the way of the party that it was unable to file it between the 1 st day and the 90 th day. It is true that a party is entitled to wait until the last day of limitation for filing an appeal.
The court is required to consider what came in the way of the party that it was unable to file it between the 1 st day and the 90 th day. It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows the the limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before the limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expirty of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. [See : Ajit Singh Thakur Singh and Another v. State of Gujrat, AIR 191 SC 733]”. 7. Similarly, another decision of the Apex Court in office of the Chief Post Master General and Others v. Living Media India Ltd. And Another reported in 2012 KHC 4131 also has been highlighted, where the Apex Court disallowed the condonation of delay of 427 days in filing SLPs before the Apex Court. In the said order, in paragraph Nos.10-14, the Apex Court addressed the impact of delay and in paragraph No.12 the delay at the instance of the Government and various Departments also was addressed. In paragraph No.12, the Apex Court held as under: “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, 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.
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, 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.” 8. According to the learned counsel for the 1 st respondent, in this case, the number of the days of delay also was subsequently inserted by handwriting. As per Rule 82 of the Rules of High Court of Kerala, which deals with affidavit, affidavit filed by writing something without authorisation is not an affidavit in the eye of law to be acted upon as held by this Court in an interim order dated 14.03.2018 in WP(C) No.6285/2018. In the said decision, this Court referred Chapter VI of the Rules of the High Court of Kerala, 1971, with reference to Rule 75 of the Rules of the High Court of Kerala, which provided that, alterations, erasures etc.— Alterations, erasures and interlineations shall, before an affidavit is sworn or affirmed, be authenticated by the persons before whom the affidavit is signed, and no affidavit having therein any alteration, erasure or interlineation not so authenticated, shall, except with the leave of the Court, be filed or made use of in any matter.
Thus relying on a Division Bench ruling of this Court in Muhammed Shan R. v. District Police Chief and others [ 2016 (4) KHC 77 ], the learned Single Judge addressed the essentials of an affidavit in terms of Section 82 of the Rules of the High Court of Kerala accompanying a writ petition should contain a declaration made by the petitioner that, what is stated in the statement of facts are true to his knowledge/ on information and belief. 9. Coming to the core issue, Section 5 of the Limitation Act is the enabling provision which deals with condonation of delay. It is well settled law that, in the matter of delay, liberal approach has to be taken and at the same time, the courts must examine whether the delay has been sufficiently explained. Thus, ‘sufficient cause’ is the criteria by which the question of delay to be addressed, with a view to either condone or disallow the prayer for condonation. 10. In the instant case, 225 days delay sought to be condoned and according to the 1 st respondent and supported by the learned counsel for the 2 nd respondent, the delay would come to 467 days. It is pointed out by the learned counsel for the respondents that the length of delay is immaterial and even a short delay, if not properly explained by showing sufficient cause, cannot justify condonation of delay. According to the learned counsel for the 1 st respondent, this is a crime registered due to political rivalry in the year 2008 and finally final report had been filed in the year 2011. By the time, the respondents herein suffered the ordeals of this crime and were finally discharged on merit by the Special Court, even though the prosecution has a remedy by way of revision to challenge the said order, the events highlighted by him would go to show that the prosecution has no interest to challenge the order properly. The intention behind filing this criminal revision petition is only to wreak vengeance on the ground of political rivalry. 11. The Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag and another v. Mst.
The intention behind filing this criminal revision petition is only to wreak vengeance on the ground of political rivalry. 11. The Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others [ AIR 1987 SC 1353 : (1987) 2 SCC 107 : 1987 KHC 911] , referring to the power of the Courts under the Indian Limitation Act, 1963, has laid down the following six principles for dealing with applications for condonation of delay. “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay. every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. 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. 5. 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. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” Summarising and enumerating the legal position relating to limitation and condonation of delay, the Hon'ble Supreme Court in Pathapati Subba Reddy Athapati Subba Reddy (Died) by L.Rs. & Ors.
& Ors. v. The Special Deputy Collector (LA) [2024 SCC OnLine SC 513: 2024 KHC OnLine 6197] laid down the following eight principles; “(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justiceoriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.” 12. Thus, the legal position is that, Section 5 of the Limitation Act has to be construed liberally in order to advance substantial justice. However, at the same time, the court has to look into sufficient cause. In the instant case, delay sought to be condoned is 225 days and connected criminal revision petitions are already on consideration of this Court, as submitted by the learned Public Prosecutor.
However, at the same time, the court has to look into sufficient cause. In the instant case, delay sought to be condoned is 225 days and connected criminal revision petitions are already on consideration of this Court, as submitted by the learned Public Prosecutor. Therefore, in order to consider the grievance of the prosecution in the matter of discharge, it is necessary, in the interest of justice, to condone the delay and permit the revision petitioner to argue the matter on merits. Holding so, Crl.M.A.No.1/2023 stands allowed. Delay of 225 days in filing the criminal revision petition stands condoned.