HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Criminal Misc. Application No. 295438 of 2007 (Under Section 5 of Indian Limitation Act) IN GOVERNMENT APPEAL DEFECTIVE No. - 575 of 2007 Appellant :- State Of U.P. Respondent :- Vijai Kumar Mishra And Others Counsel for Appellant :- Govt. Advocate, A. K. Dwivedi, Anil Tewari, Dileep Kumar, Rajarshi Gupta, Rajiv Gupta, S.P. Singh Parmar, Samit Gopal Counsel for Respondent :- G. S. Charurvedi, L. K. Dwivedi, Lav Srivastava, Sikandar B. Kochar, Syed Faizan Ahmad Hon'ble Shashi Kant Gupta,J.
Hon'ble Mrs. Vijay Lakshmi,J.
This is a defective government appeal which, as per Stamp Reporter's report dated 29.11.2007, has been filed with a delay of 1399 days beyond the period of limitation. An application under Section 5 of Limitation Act has been filed with prayer to condone the delay.
Heard learned A.G.A. appearing on behalf of the State and Shri G.S. Chaturvedi and Shri L.K. Dwivedi, learned counsels appearing for the respondents, on the delay condonation application. In the interest of justice we have also heard Shri Dileep Kumar assisted by Shri A.K. Dwivedi, Shri Ravindra Sharma and Shri D.K. Singh, representing the victim/ complainant. Perused the records.
Learned AGA has submitted that the impugned judgment acquitting all the seven accused/ respondents was passed on 28.8.2003. It was a case of broad day light murder. All the 7 accused persons were named in the F.I.R. Many of them had criminal antecedents. There was eye witness account of the occurrence by the witnesses. However, the court below acquitted all the accused persons by the impugned judgment dated 28.8.2003. He has next submitted that the State decided to file an appeal against the aforesaid judgment. The limitation period for filing the appeal was up to 13.12.2003. On 29.11.2003 the District Magistrate sent a proposal to the State Government for filing the appeal. On 1.12.2003 proposal for appeal was produced before the Review Officer. On the same day i.e. on 1.12.2003, the Review Officer sent the record before the Special Secretary and Legal Remembrancer for opinion. On 3.11.2003 the Special Secretary (Judicial) and Legal Remembrancer sent their opinion. However, as one of the accused persons Vijay Mishra was an M.L.A. of the then ruling party/Samajwadi Party, who had sent a letter to the Chief Minister with prayer not to file an appeal in the matter, the government sent the record to the office of Advocate General on 9.12.2003, seeking his further opinion. The Advocate General gave his opinion after expiry of period of limitation of not filing appeal on 5.3.2004.
Advancing his arguments further learned AGA has submitted that in the meantime the complainant of the case filed a Criminal Misc. Writ Petition No. 7842 of 2003 seeking mandamus to direct the State to prefer an appeal against the acquittal and also a Criminal Revision No. 3010 of 2003 against the acquittal of accused-respondents challenging the same impugned judgment dated 28.08.2003. The criminal revision was admitted by this Court vide order dated 21.10.2003 and Criminal Misc. Writ Petition No. 7842 of 2003, was still pending when the Advocate General gave his opinion on 05.03.2004 of not filing the appeal in this matter.
The submission of learned A.G.A. is that it is clearly evident from the aforesaid facts that the delay has been caused due to the reason that one of the accused Vijay Kumar Mishra, who was an M.L.A. of ruling party had moved an application before the Chief Minister, U.P. on 1.11.2003 with prayer not to file appeal and therefore the file was sent to the Advocate General to review the decision and the then Advocate General under the influence of ruling party, gave his opinion at a very belated stage on 5.3.2004 not to file the appeal. Learned A.G.A. has contended that as the accused persons were raising simultaneous challenge to the orders passed by State Government, the delay occurred and had there not been any judicial intervention the appeal could not have been filed.
In this regard, learned A.G.A. has drawn our attention to the order dated 16.07.2007, passed by this Court in Criminal Misc. Writ Petition No. 7842 of 2003, which is reproduced below:-
"This writ petition has been filed with a prayer directing the State Government to file an appeal against the order of acquittal dated 28.8.2003 passed by Additional Sessions Judge, Sant Ravidas Nagar (Bhadoi) in Session Trial no. 101 of 2002.
It is informed that against the order of acquittal dated 28.8.2003 a revision has been admitted by this Court.
Learned Government Advocate states that the State Government is reviewing the order of filing an appeal and the decision is likely to be taken within three weeks.
The State Government is permitted to review the decision of filing an appeal against the order of acquittal within three weeks.
List this case immediately after three weeks.
Office is directed to furnish a copy of this order to the learned Government Advocate within three days for compliance."
Explaining further the reasons behind the delay and drawing our attention to the copy of letter dated 1.8.2007 sent to the Principal Secretary and the copy of the opinion dated 30.10.2007 of the then Advocate General, learned A.G.A. has submitted that after such order, a letter was sent by Under Secretary to the Principal Secretary, Uttar Pradesh Government on 01.08.2007 seeking direction whether to file or not to file an appeal against the impugned judgment passed in S.T. No. 101 of 2002 in wake of the order of Hon'ble High Court passed in Writ Petition No. 7842 of 2003. The Principal Secretary sought the opinion of the then Advocate General, who gave the following opinion on 30.10.2007:-
"I have perused the file. In this case the opinion of the former Advocate General is based only on the consideration of alilbi pleaded by the accused persons, my learned predecessor has failed to consider the evidences of injured witnesses examined by the prosecution, as such, in my opinion it is a fit case where an appeal should have been preferred at the first instance.
Opined accordingly."
30-10-2007 ¼T;ksfrUnz feJ egkf/koDrk mRrj izns'k 'kklu½ Principal Secretary, Law"
The submission of learned A.G.A. is that on 18.9.2007, the Advocate General sent the record of the case before the Principal Secretary (Judicial), Uttar Pradesh. On 30.10.2007 the Advocate General granted permission to file the appeal. On 14.11.2007 the file was received in the Law Department. On 16.11.2007 the Government Order was issued for filing the appeal and on 30.11.2007 the government appeal was filed. However, a time of 1399 days expired in aforesaid proceedings.
On the aforesaid grounds learned A.G.A. has prayed that in the interest of justice and considering all the facts and circumstances of this case the delay caused due to procedural lapses in filing this appeal, be condoned.
Sri G.S. Chaturvedi, learned Senior Counsel appearing for the accused/respondents has vehemently opposed the delay condonation application by arguing that vide order dated 05.03.3004 the then Advocate General, who was the constitutional authority, decided not to file the appeal against the acquittal and the government approved the same decision. Sri Chaturvedi has argued that there is no provision of reviewing the decision once it has been taken by the government, therefore, the State was not authorised to review and change its decision of not filing the appeal, that too, after expiry of a considerable time at a highly belated stage. Moreover, there is no explanation of delay from 5.3.2004 to 18.7.2007 i.e. of 1346 days by the State Authorities. Advancing his argument further, Sri Chaturvedi has submitted that it appears that the change of government from Samajwadi Party to Bahujan Samaj Party in the year 2007 is the main reason behind this exercise by the State, as one of the accused Vijay Kumar Mishra was an M.L.A. of Samajwadi Party. The contention of Sri Chaturvedi is that the State has tried to explain the delay of period between 5.8.2007 to 16.11.2007 only and there is no explanation of the delay of remaining days.
Placing reliance on the law laid down by Hon'ble Apex Court in Ajit Singh Thakur Singh and another Vs. State of Gujarat; (1981) 1 Supreme Court Cases 495, learned Senior Counsel Shri G.S. Chaturvedi has argued that in the aforesaid case of Ajit Singh Thakur Singh, the Apex Court, while setting aside the order passed by Gujarat High Court, condoning the delay of three months, has observed that when a party allows 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 expiry 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.
Learned Senior Counsel has placed before us, one more recent verdict of Hon'ble Supreme Court, given in the case of H. Dohil Constructions Company Private Limited Versus Nahar Exports Limited and another (2015) 1 Supreme Court Cases 680 in which the Apex Court while setting aside the order passed by Delhi High Court has held that the law of limitation is based on a sound public policy and therefore in the absence of bona fide reasons, the applications for condonation of delay should be strictly construed and the Courts are required to weigh the scale of balance of justice in respect of both the parties and the same principle cannot be given a go-by under the guise of liberal approach.
While drawing our attention to the order dated 09.03.2015, passed by this Court, Shri G.S. Chaturvedi has next argued that a perusal of the very first line of the aforesaid order clearly indicates that this State appeal has been filed because of the judicial intervention. The submission of Shri Chaturvedi is that the judiciary has no authority to intervene in such matters of State and it cannot direct the State whether to file an appeal or not. Relying on the law laid down by Supreme Court in the case of Mansukhlal Vithaldas Chauhan Versus State of Gujarat; (1997) 7 Supreme Court Cases 622 Shri Chaturvedi has contended that although Mansukhlal's case relates to the grant of sanction but the legal principle, it lays down, would also apply in the present case. In Mansukh Lal's case Hon'ble Apex Court had set aside the judgments passed by trial court and also by the High Court only on the ground that the requisite sanction under Section 6 of Prevention of Corruption Act, 1947, had been granted by the authorities concerned on the directions of High Court. In Mansukh Lal's case, the Supreme Court held the sanction, issued by an authority, on the directions of High Court, as invalid, on the ground that there was no independent application of mind by that authority because High Court's direction had taken away discretion of that authority and it was left with no choice but to mechanically accord sanction in obedience of the mandamus issued by High Court.
Relying on the aforesaid judgment, Shri Chaturvedi has lastly contended that filing of the present appeal in pursuance of order of this Court has vitiated the entire proceedings, hence there is no justification in condoning the delay occurred in filing an appeal, which itself is not maintainable.
Per contra, learned A.G.A. and Shri Dileep Kumar, learned counsel appearing for the complainant/ victim, have controverted the aforesaid arguments by submitting that it is only the District Magistrate who is empowered to take decision whether or not to file appeal against a judgment of acquittal. So far as the present case is concerned, the District Magistrate had earlier exercised his discretion after seeking advice from D.G.C. (Crl.). The government had examined the record and had come to the conclusion that the appeal should be filed in this matter by finally approving the decision. All this exercise was done within the period of limitation i.e. by 03.12.2003 (The period of limitation was expiring on 13.12.2003). However due to the reason that one of the accused Vijay Kumar Mishra, who was an M.L.A. wrote a letter to the Chief Minister, the entire procedure was deviated and the record was sent to the Advocate General for review of the government order passed by Principal Secretary (Judicial) and L.R. and the Advocate General gave his opinion not to file Government appeal on 05.03.2004.
Shri Dileep Kumar has submitted that in fact there was no delay in filing the appeal as it had already been filed immediately just after receiving the report of Principal Secretary (Judicial) and L.R. It was only due to intervention of the accused Vijay Kumar Mishra that the State Government decided not to file the appeal. He has further submitted that meanwhile the aggrieved party i.e. the victim's family members had filed two cases in this Court against the order of acquittal (1) Criminal Revision No. 3010 of 2003, which was admitted by order dated 21.10.2003 of this Court and (2) Criminal Misc. Writ Petition No. 7842 of 2003 seeking mandamus commanding the State to take effective steps in respect of the proposal of public prosecutor for filing the Government appeal under Section 378(1) Cr.P.C. against the order of acquittal. The submission of Shri Dileep Kumar is that when on 05.03.2004 the criminal revision filed by victim against the same order of acquittal had already been admitted by a speaking order dated 21.10.2003 of this Court, there was no occasion for the Advocate General to give his opinion otherwise i.e. not to file State appeal against the acquittal.
Sri Dileep Kumar has harangued that Vijay Kumar Mishra is a hardened criminal having a long list of criminal cases against him but the State which is very particular in filing several Government appeals even in cases relating to minor offences or cases relating to firing on police party where none receives injury, decided not to file appeal against acquittal of a history sheeter only due to the political reasons and ignored the order of L.R. only on the ground that accused Vijay Kumar Mishra who was an M.L.A. had himself written a letter to the Chief Minister.
Controverting the arguments of Sri Chaturvedi, Shri Dileep Kumar has argued that there is no judicial intervention by the High Court in this case because this Court has never issued any mandamus to file appeal in this case which is clearly evident from the order of this Court passed on recall application moved in Writ Petition No. 7842 of 2003 and the earlier order dated 16.07.2007 of this Court both of which clearly indicate that the State Government was only permitted to review its decision of filing an appeal against the order of acquittal and this court never issued any mandamus to the State to file an appeal.
We have carefully perused both the orders dated 17.07.2007 and 09.08.2007 passed by this Court in Writ Petition No. 7842 of 2003. We have also perused the opinion given by the then Advocate General on 30.10.2007 to the Principal Secretary (the copy of which was placed before us by Shri Chaturvedi with an amendment application he intended to file on that day, which we directed to be filed in the registry). In the interest of justice, we have perused the impugned judgment also, so that the doors of justice be not shut only on technical grounds of delay and laches.
The brief facts of the case, as per prosecution, are that due to political rivalry the accused-respondents fired indiscriminately causing grievous injuries to one Trayambak Nath Pandey and causing death of one Rameshwar Nath Pandey. The injured Trayambak Nath Pandey was produced by the prosecution as PW-2 who supported the prosecution case by giving a vivid description of the occurrence. One more eyewitness PW-1 who is the informant of the case was also produced by prosecution, however, the court below disbelieved the prosecution story and acquitted all the accused persons on the ground that all the witnesses of fact produced by the prosecution were interested witnesses and there was no independent witness of the occurrence. The trial court also believed the plea of alibi taken by accused Vijay Kumar Mishra.
The opinion of learned Advocate General, the copy of which has been placed before us by Sri Chaturvedi, reflects that the Advocate General has opined that the opinion of former Advocate General was given only on the consideration of 'alibi' pleaded by the accused and his learned predecessor had failed to consider the evidence of injured witness examined by the prosecution.
The aforesaid opinion of Advocate General has been given in independent exercise of his power and not due to any judicial intervention. Therefore, we do not find any force in the arguments of Shri G.S. Chaturvedi with respect to judicial intervention in this case. In this regard, the order dated 09.08.2007 passed by a coordinate Bench of this Court on a recall application moved by the accused-respondents in Writ Petition No. 7842 of 2003 is worth mentioning, which clarifies the situation that this appeal has not been filed in pursuance of any mandamus or any direction by this Court. The aforesaid order dated 09.08.2007 is reproduced below:-
"Hon'ble Imtiyaz Murtaza, J.
Hon'ble Amar Saran, J.
An application has been moved in this writ petition on behalf of the applicant, Vijai Kumar Misra, praying for recall of our order dated 16.7.2007. The said orders read as follows:
"This writ petition has been filed with a prayer directing the State Government to file an appeal against the order of acquittal dated 28.8.2003 passed by Additional Sessions Judge, Sant Ravidas Nagar (Bhadoi) in Session Trial No. 101 of 2002.
It is informed that against the order of acquittal dated 28.8.2003 a revision has been admitted by this Court.
Learned Government Advocate states that the State Government is reviewing the order of filing an appeal and the decision is likely to be taken within three weeks.
The State Government is permitted to review the decision of filing an appeal against the order of acquittal within three weeks.
List this case immediately after three weeks.
Office is directed to furnish a copy of this order to the learned Government Advocate within three days for compliance.
Hon'ble Justice Imtiyaz Murtaza Hon'ble Justice Amar Saran.
16.07.2007."
It is mentioned in paragraph 5 of the affidavit filed in support of the aforesaid recall application that the said case was cognizable by a single Judge and there was no order nominating or assigning the case to the Division Bench nor was it connected with the present writ petition. We observed from the ordersheet that a mention was made before Hon. V.K. Chaturvedi, J. that as it was argued by the learned counsel for the petitioner that another Crl. Misc. Writ Petition No. 8390 of 2006, pending before our Division Bench, hence the said matter be placed before our Division Bench, hence the averment in the affidavit is not correct.
It was also contended that as the State Government had earlier taken a decision not to file an appeal against the aforesaid order of acquittal, as such the prayer made in the writ petition has become infructuous. We do not agree with this contention of Sri G.S. Chaturvedi, learned Senior Counsel, as in the writ petition the prayer was for directing the public prosecutor to file a government appeal under section 378(1) Cr.P.C. before this Court against the said order of acquittal dated 28.8.2003 passed by the Addl. Sessions Judge, Court No. 2, Sant Ravidas Nagar (Bhadoi) in S.T. No. 101 of 2002: Sate Vs. Vijai Kumar Mishra and others, or to pass any other suitable orders which this Court deems fit and proper. If the writ petition could have been decided on merits, this question would have been considered by this Bench as to whether the State Government was justified in taking a decision not to file the appeal and before the question had been examined, the writ petition had certainly not become infructuous.
However, we had passed the aforesaid order dated 16.7.2007 that we were postponing the matter on the ground that it was stated by the learned Government Advocate that the State Government was reviewing its earlier decision not to file the appeal and could be taking a decision within 3 weeks.
Hence, we had simply permitted the Government to review its decision of filing an appeal against the order of acquittal. We do not think that there is any substance in the contention of learned Senior Counsel Sri G.S. Chaturvedi that by inserting in our order that "The State Government is permitted to review the decision of filing an appeal against the order of acquittal within three weeks.", we were issuing a mandamus either way, i.e. either directing the Government to file an appeal or directing it not to file an appeal. By the earlier order we had only postponed our consideration of the matter in view of the communication to us by the learned Government Advocate that the Government was reviewing its earlier order for filing an appeal.
As the writ petition is still pending, it will be open to this Court to consider the propriety of filing or not filing a government appeal when and if it decides to hear this writ petition on merits.
Therefore, there is no force in the present application moved on behalf of Sri V.K. Misra seeking review of our order dated 16.7.2007. This application is dismissed.
List this case again after 3 weeks, by which time we hope the Government will have taken a decision about filing or not filing a government appeal against the order of acquittal, which is under challenge.
Dated: August 9, 2007.
AS-147/sks."
Thus, it is clear from a perusal of aforesaid order, that there was no judicial intervention in this case and this court had only permitted the Government to review its decision, whether to file an appeal or not.
Keeping in view the over all picture of this case, the situation that the criminal revision filed by the victim/complainant against the same judgment has been admitted as far back as on 21.10.2003 and is still pending in this Court and also the fact that earlier the decision of filing appeal was taken by the L.R. and Principal Secretary Legal, within the prescribed time on 03.12.2003, but after that obviously, due to political intervention by the accused himself, the opinion of the then Advocate General was sought again, it appears just and proper that the delay caused in filing this appeal, be condoned and the Government be permitted to file appeal in this matter.
It will be not out of place to mention here that in an earlier order dated 09.03.2015, passed in this appeal, another Division Bench of this Court has already expressed this view as under:-
"The question as to whether the delay should be condoned or not, would primarily depend upon this vital factor of the filing of the appeal itself after a judicial intervention and secondly on the simultaneous challenge raised by the accused to the order passed by the State Government reviewing its earlier decision not to file the appeal."
Considering all the facts and circumstances and in wake of earlier orders of this Court, we are of the firm view that the delay in filing of this Government appeal should be condoned.
Accordingly, the delay condonation application is allowed.
Delay is condoned.
Office is directed to allot regular number to this appeal.
List in due course for hearing on admission.
Order Date :- 16.12.2015 S.B./NS