State Of U.P. vs Vishnu Dutt Shukla
2017 Latest Caselaw 1480 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 43
 

 
Case :- CRIMINAL REVISION DEFECTIVE No. - 351 of 2017
 
Revisionist :- State Of U.P.
 
Opposite Party :- Vishnu Dutt Shukla
 
Counsel for Revisionist :- G.A.
 

 
Hon'ble Karuna Nand Bajpayee,J.

(Order in Crl. Misc. Delay Condonation Application No.183240 of 2017)

This Criminal Misc. Delay Condonation Application u/s 5 of Indian Limitation Act, is being pressed by the State of U.P.-revisionist in Criminal Revision (defective) No.351 of 2017 (State of U.P. vs. Vishnu Dutt Shukla) u/s 397 read with Section-401 of Criminal Procedure Code, against the order dated 29.04.2016 passed by the learned Additional Sessions Judge/Special Judge, SC/ST Act, Jhansi in Special Trial No.02 of 2013 (State of U.P. vs. Vishnu Dutt Shukla), arising out of Case Crime No.486 f 2000, u/s 419, 420, 467, 468 I.P.C. and Section 13(2) of Prevention of Corruption Act and Sections 14 and 14-A of U.P. Trade Tax Act, whereby the opposite party no.2 has been discharged.

Heard learned A.G.A. on behalf of revisionist-State of U.P. and perused the record.

Submission of learned A.G.A. is that although there is long delay in filing this criminal revision but the same has been duly explained in the affidavit filed in support of this criminal misc. delay condonation application and as the same has not been intentional and deliberate, and therefore, the delay in filing this revision is liable to be condoned.

From the submissions made by learned A.G.A. and the averments made in the affidavit filed in support of criminal misc. delay condonation application it is revealed that after passing of order of discharge dated 29.4.2016, which is impugned herein, the proposal for filing this revision against the said order in the form of government order dated 22.9.2016 was received by the office of learned Government Advocate, High Court, Allahabad on 27.9.2016 through special messenger. Thereafter the communication was made by the office of learned Government Advocate, High Court Allahabad through fax message to the office of District Magistrate, Jhansi on 20.10.2016 for the purpose of deputing any gazetted officer from the office of District Magistrate, Jhansi in order to file affidavit in support of this delay condonation application. It further reveals that one Assistant Commissioner, Commercial, Tax, Khand-IV, Jhansi contacted the office of learned Government Advocate for preparation and filing of government criminal revision but the same could not be dictated due to lack of typed copies as well as certified copies of all relevant essential documents, and as such, one another communication vide letter dated 11.11.2016 was made by the office of learned Government Advocate, High Court, Allahabad to the District Magistrate, Jhansi to again depute any gazetted officer to do the needful. However, since 11.11.2016 the office of District Magistrate, Jhansi kept silence over the matter for a period of approximately five months and only on 17.5.2017, the deponent of affidavit filed in support of delay condonation application, who is posted as State Tax Officer, District Jhansi, contacted the office of learned Government Advocate, High Court, Allahabad along with relevant documents and thereafter the present defective criminal revision along with this delay condonation application has been preferred against the order of discharge dated 29.4.2016. It further reveals that after the aforesaid, the State of U.P. has come forward to file present defective criminal revision with a delay of total 305 days i.e. about ten months.

The delay so caused in filing of this defective criminal revision is not of short duration of a few days but is seriously inordinate. The position of law to condone the delay to avail any statutory remedy is no more res integra and the Apex Court in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others reported in (2013) 12 SCC 649, has expatiated upon this issue at length and has considered several authorities of Apex Court and has ultimately summarized the principles governing the issue at hand. For ready reference, para nos.21 and 22 of the judgement rendered in Esha Bhattacharjee (supra) are being quoted herein below :-

"21. From the aforesaid authorities the principles that can broadly be culled out are:

21.1. (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.

21.2. (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.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (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.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (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.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (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.

21.9. (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.

21.10. (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.

21.11. (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.

21.12. (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.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard 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.

22.2. (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.

22.3. (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.

22.4. (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."

Keeping in perspective the above noted principles as have been laid down by the Hon'ble Apex Court, this Court has adverted to the averments made in the affidavit filed in support of the application seeking the condonation of delay. It is so clear that the delay after which the present revision in question has been filed is not of a few days but is inordinately prolix and therefore while adjudging the matter of dealing with the explanation as has been sought to be given in the application preferred by the Revisionist-State, the same as such warrants a strict approach of the Court and not an extravagantly liberal view. The affidavit filed on behalf of State only contains the chronological dates showing the delay and not the actual explanation as to why the delay has been caused. Different authorities at different levels have been dealing with the matter with a lackadaisical attitude while they ought to have acted with alacrity and dispatch. But why a diligent and careful attitude was not shown or could not be adopted in the matter and the reasons as to why different steps by different authorities were taken after long gaps has not been explained at all. The factum of delay is already known and is not a mystery. What the Court is concerned about is to know the reasons of delay in filing of the revision, because it is only thereupon that the Court can sit upon judgement and adjudge the genuineness or otherwise of the same. The non challant manner and the slip shod propensities of the State authorities require to be curbed and not to be encouraged. It appears to be a classic case in which the application for condonation of delay has been put forth "in a haphazard manner harbouring the notion that in all events the courts are simply required to condone the delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system." Even after lending a condescending leverage and adopting an accepting attitude towards the State, as the same happens to be an entity representing the people as such, this Court is unable to persuade itself to believe that the delay caused in filing the revision is anywhere close to be called either reasonable or acceptable. After all the law as contained in the Limitation Act is not just a paper tiger nor can the statute book be treated as a toothless volume enacted by the legislation unmindfully without any purpose or aim to be achieved. If scales of justice are to be balanced then the courts cannot afford to have a unilateral approach which should invariably be unfavourable to the parties which are likely to benefit by the order under challenge.

In the present case the explanation given in the affidavit filed in support of delay condonation application does not fall within the terms 'sufficient cause', as is required for condonation of delay. Mere sending of communication to call upon appropriate authority to file affidavit and to get the documents typed cannot be treated to be sufficient cause for condonation of delay of about ten months by any stretch of imagination. The total facts and circumstances of the case with regard to the delay in question and the hopelessly poor explanation with regard to same are such that the exercise of judicial discretion when founded on objective reasoning does not swing in favour of the Revisionist-State and this Court feels constrained not to allow the application seeking the condonation of delay.

The delay condonation application therefore stands dismissed hereby.

Order on Revision

As the delay condonation application filed in this criminal revision has already been dismissed and therefore the present criminal revision also stands dismissed as such consequently.

Order Date :- 31.5.2017

M. Kumar