Central Bureau Of Investigation vs Biman Kumar Saha & Anr
2022 Latest Caselaw 1413 Cal

Form J(2)      IN THE HIGH COURT AT CALCUTTA
                  Criminal Appellate Jurisdiction
                          Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri



                      CRMSPL 3 of 2019
                               With
                 CRAN 1 of 2019 (Old CRAN 245 of 2019)


                Central Bureau of Investigation
                             Vs.
                  Biman Kumar Saha & Anr.


For C.B.I. :                 Mr. Amajit De



For the Opposite Parties     : Mr. Abhra Mukherjee
                               Mr. Sudip Banerjee
                               Mr. Sauradeep Dutta

Item No. 13

Heard on                     : 21.03.2022 and 23.03.2022

Judgment on                  :   23.03.2022


Bibek Chaudhuri, J.

This is an application under Section 5 of the Limitation Act

filed by the petitioner /intending appellant for condonation of delay

of 302 days in filing the appeal against the impugned judgment and

order of acquittal.

The petitioner has delineated the reasons for delay in filing

the appeal in paragraph 12 of the said application which is

reproduced below:-

"12. That the reasons for the delay in filing is for the reasons

as enumerated herein below:

i) That on 14.12.2017 judgment and order was

pronounced.

ii) That on 14.12.2017 application was submitted for

supply of certified copy of the judgment and order.

iii) That on 22.12.2017 the certified copy was made

ready and supplied.

iv) That on 29.12.2017 the file was placed Sr. Public

Prosecutor/CBI for his comments on the available

records.

v) That on 01.01.2018 the Sr. Public Prosecutor/CBI

submitted his comments.

vi) That on 18.01.2018 Superintendent of Police/CBI

endorsed his comments and passed on the file.

vii) That on 20.06.2018 the Head of the Branch

submitted his comments.

viii) That on 16.07.2018 the Dy. Legal Advisor presented

his opinion and forwarded the file.

ix) That on 18.07.2018 the Joint Director & Head of

Zone recommended for filing of appeal.

x) That on 18.07.2018 the file with the

recommendations and opinion was forwarded to the

Special Director/CBI/New Delhi.

xi) That on 25.07.2018 the file with the

recommendation of the Special Director/CBI/New

Delhi was forwarded to the Director of

Prosecution/CBI/New Delhi.

xii) That on 25.07.2018 the Director of

Prosecution/CBI/New Delhi forwarded the file to the

Additional Legal Advisor/CBI/New Delhi for opinion.

xiii) That on 10.08.2018 the Additional Legal

Advisor/CBI/New Delhi with his comments forwarded

the file to Director of Prosecution/CBI/New Delhi.

xiv) That on 23.08.2018 the Director of

Prosecution/CBI/New Delhi with his comments dated

forwarded the file to Special Director/CBI/New Delhi.

xv) That on 24.08.2018 Special Director/CBI/New Delhi

with his comments forwarded the file to the

Director/CBI/New Delhi.

xvi) That on 27.08.2018 the Director/CBI/New Delhi

approving the proposal recommended for challenging

the impugned judgment and order.

xvii) That on 30.08.2018 the file with the

recommendation was received at CBI/Kolkata.

xviii) That on 06.09.2018 the file with the

recommendations was forwarded to the Department

of Personnel & Training/Government of India for

approval of the proposal.

xix) That on 12.10.2018 the file with the approval of the

Department of Personnel & Training/Government of

India was received by the CBI/ACB/Kolkata.

xx) That on 10.12.2018 Sh. Ranjan Kumar Roy,

Advocate was engaged to draw-up and filed the

appeal.

xxi) That on 16.12.2018 the applications after being

redrafted was forwarded to the Head of

Branch/CBI/ACB/Kolkata for vetting.

xxii) That on 18.12.2018 the draft after being approved

and vetted was returned for filing.

xxiii) That on 08.01.2019 the applications were reprinted

and finalised for filing.

xxiv) That on 10.01.2019 the applications were affirmed

and filed in the Hon'ble Court."

The opposite parties have filed affidavit-in-opposition against

the aforesaid application under Section 5 of the Limitation Act. It is

specifically stated by the opposite parties that the explanation for

condonation of delay contained in paragraph 12 of the aforesaid

application is vague, misconceived, speculative, baseless and bereft of

better or more particulars. It is further stated by the opposite parties

that official delay in according permission to the petitioner to file

appeal against an order of acquittal cannot be said to be a sufficient

cause for delay in filing the appeal.

At the time of hearing of the instant application it is submitted

by Mr. Amajit De, learned advocate for the CBI that the Regional

Office of the CBI at Kolkata has no authority to decide as to whether

an appeal should be filed against an order of acquittal or not. The

permission comes from Delhi office and only after getting the official

permission, the CBI, Kolkata can file an appeal under Section 378(3)

of the Code of Criminal Procedure against an order of acquittal.

It is further submitted by Mr. Amajit De that the impugned

judgement and the order of acquittal was passed on 14 th December,

2017. The CBI immediately filed an application for certified copy of

the impugned judgment on the very date of the delivery of the

judgment. There is no laches on the part of CBI, Kolkata Office. The

certified copy was supplied on 22 nd December, 2017. Therefore, the

limitation started to begin from 23rd December, 2017. On 1st January,

2018 the senior Public Prosecutor, CBI submitted his comment to the

effect that an appeal should be preferred against the impugned

judgment an order of acquittal. Subsequently, the delay was caused

in the office of the Superintendent of Police and the Head of the

Branch. Thereafter inordinate delay was caused by different offices of

CBI at Delhi in order to give permission to file an appeal. In this

manner there was delay of 302 days in preferring the Memorandum of

Appeal.

Learned advocate for the respondents/opposite parties on the

other hand, submits that under the provision of Section 378, the

State Government or the Central Government shall have to file an

appeal from an order of acquittal within 90 days from the date of the

impugned judgement and order of acquittal being passed. In support

of his contention, he relied upon a decision of the Hon'ble Supreme

Court in the State (Delhi Administration)-vs-Dharam Pal

reported in AIR 2001 SC 2924.

The learned advocate for the respondents further refers to a

decision of the Division Bench of this Court in the case of State of

West Bengal -Vs- Manowar Ali Khan reported in 2010, (4CHN)

(Cal) 585. It is pointed out by the learned advocate for the opposite

party that in the above mentioned report the Division Bench of this

Court refused to condone the delay of only 10 days and the appeal

was dismissed on the ground of being barred by limitation. The

learned advocate for the opposite party, however, over-looked that in

Manowar Ali Khan (supra), the state of West Bengal being the

appellant did not file any application under Section 5 of the Limitation

Act for condonation of delay. In the absence of any application under

Section 5 of the Limitation Act even single day's delay cannot be

condoned. Therefore, ratio of this decision is not applicable under the

facts and circumstances of this case. Placing reliance on the case of

Ajit Singh Thakur @ Anr-Vs- State of Gujarat reported in AIR

1981 SC 733 it is submitted by the learned advocate for the opposite

party that the opposite party stands in a better position in the instant

appeal because he was acquitted by the competent court of law. It is

held in the aforesaid decision that where two reasonable conclusions

can be drawn on the evidence on record, the High Court should, as a

matter of judicial caution, refrain from interfering with the order of

acquittal recorded by the court below. In other words, if the main

ground on which the court below has passed its order acquitting the

accused, a reasonable and plausible ground can not be entirely and

effectively dislodged or demolished, the High Court should not disturb

the acquittal.

In my considered view the ratio of this judgment is also not

applicable at this stage because existence of two reasonable

conclusions can only be arrived at on appreciation of evidence. At the

stage of hearing of the application under Section 5 of the Limitation

Act the said stage of appreciation of evidence does not come at all.

A pertinent judgment on the point as to whether an application

filed by the appellant being the agency of the State Government or

Central Government should be allowed on the basis of citing certain

dates where the official record was stuck off was considered by the

Hon'ble Supreme Court in Office of the Chief Post Master General

& Ors. V. Living Media India Ltd. & Anr. reported in AIR 2012 SC

1506. Paragraphs 12 and 13 are relevant for the purpose and quoted

herein below:-

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 bana fide, 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 bona fide 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. Considering the fact that there

was no proper explanation offered by the Department for

the delay except mentioning of various dates, according to

us, the Department has miserably failed to give any

acceptable and cogent reasons sufficient to condone such

a huge delay. Accordingly, the appeals are liable to be

dismissed on the ground of delay".

Close reading of the aforesaid paragraphs suggests that the

Government or a Government agency is not a privileged litigant. The

Government agency is required to explain the delay in the same

manner like that of an ordinary litigant to get the relief of codonation

of delay under Section 5 of the Limitation Act.

Relying on the decision of Chief Post Master General (supra)

the Hon'ble Supreme Court refused to condone the delay in

preferring the special leave in the case of State of Odisha

(Vigilance) -Vs- Purna Chandra Kandi (Special Leave Petition

(Criminal) Diary No(s). 29657/2019 on 2nd September, 2019.

In the instant case, I have already quoted paragraph 12 of the

application under Section 5 of the Limitation Act. The petitioner has

stated in the said paragraph different dates when the file was sent to

different offices of CBI. It has not been stated why the office of

various heads of office of CBI took unusual time to release the record

and finally allowed the appeal to be filed after expiry of 302 days of

Limitation.

I am in agreement with the learned advocate for the opposite

party that the appellant has not been able to come up with

satisfactory explanation in support of its case for condonation of

delay.

For the reasons stated above, the application under Section 5 of

the Limitation Act is dismissed on contest, however, without any

cost. Inordinate delay in filing the appeal is not condoned.

With the dismissal of the application under Section 5 of the

Limitation Act, the Special Leave to Appeal is also treated to be

dismissed.

(Bibek Chaudhuri, J.)

Suman/SK, A.R.s (Court)