Director vs Mukul Talukdar And 5 Ors
2022 Latest Caselaw 1801 Gua

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GAHC010008892019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : I.A.(Crl.)/40/2019

         DIRECTOR, CENTRAL BUREAU OF INVESTIGATION (CBI)
         THROUGH THE HEAD OF BRANCH, CBI, ACB, OPP. BALAJI TEMPLE,
         BETKUCHI, GUWAHATI 781035 TEL 0361 2270092, FAX 0361 2270091 E-MAIL
         [email protected]



         VERSUS

         MUKUL TALUKDAR AND 5 ORS
         (THE THEN ASSTT. DIRECTOR, DDK, ITANAGAR, ARUNACHAL PRADESH),
         S/O LATE SURENDRA NATH TALUKDAR, HOUSE NO. 71, NEAR SAINIK
         REST HOUSE, LACHIT NAGAR, GUWAHATI-7, ASSAM.

         2:BISWA KUMAR DAS
          (PRODUCTION ASSTT. DDK
          ITANAGAR
         ARUNACHAL PRADESH)
         VILL. HARAPA
          P.O. JAROBARI (PALASBARI)
          DIST. KAMRUP
         ASSAM
          PRESENT ADDRESS DOOR DARSHAN COLONY
          ITANAGAR
         ARUNACHAL PRADESH.

         3:LAHIRAM DAS @ LAKSHMI RAM DAS
          (PRODUCTION ASSTT.
          DDK
          ITANAGAR
         ARUNACHAL PRADESH)
          S/O SHRI BHUBENESWAR DAS
         VILL. AND P.O. SIKARHARI
          DIST. KAMRUP
                                                               Page No.# 2/15

             ASSAM
             PRESENT ADDRESS DOOR DARSHAN COLONY
             ITANAGAR
             ARUNACHAL PRADESH.

            4:JOMMY MELE
             S/O SHRI GOKA MELE
             ROING CHETIA
             P.O. ROING
             DIST. LOWER DIBANG VALLEY
            ARUNACHAL PRADESH.

            5:OM PRAKASH KHARAKWAL
             (THE THEN SR. TECHNICIAN
             DDK
             ITANAGAR
            ARNACHAL PRADESH) S/O JADISH PRASAD KHARAKWAL
             UPPER KALABAR MARG
             KOTDWAR
             DIST. GARHWAL
             UTTARANCHAL
             PRESENT ADDRESS DOOR DARSHAN COLONY
             ITANAGAR
            ARUNACHAL PRADESH.

            6:SURESH CHANDRA KANDPAL
             (THE THEN MANAGER
            ARUNACHAL PRADESH STATE CO-OPERATIVE APEX BANK
             NIRJULI BRANCH
            ARUNACHAL PRADESH) S/O SHRI ISWARI DUTT KANDPAL
            VILL. KANTHOLI
             KAUSANI
             DIST. ALMORA
             UTTARANCHAL
             PRESENT ADDRESS APEX BANK COLONY
             NAHARLAGUN
            ARUNACHAL PRADESH

Advocate for the Petitioner   : MR. S C KEYAL

Advocate for the Respondent : MR. D K DAS (R1, R2, R3, R5)
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                                 BEFORE
                    HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                   JUDGMENT

Date : 26-05-2022

ORDER (CAV)

1. This application, under section 5 of the Limitation Act, 1963 is preferred by the Director, Central Bureau of Investigation(CBI) for condonation of delay of 313 (Three hundred and thirteen) days, in filing Criminal Leave Petition for filing Criminal Appeal against the Judgment and Order dated 06.12.2017, passed by the Ld. Special Judge, CBI Court No.1, in CBI,ACB Case No. 12(A)/2003-GWH(Special Case No. 67/2005), acquitting accused persons namely (1) Mukul Talukdar, (2) Biswa Kumar Das, (3) Lakhiram Das @ Lakhi Ram Das (4) Jommy Mele (5) Om Prakash Kharakwal and 6) Suresh Chandra Kandpal under section 120B/420/465/468/471 IPC, and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.

2. The background facts, necessary for adjudication of the present dispute, are adumbrated herein below:-

2.1. "The respondents herein, namely, (1) Shri Mukul Talukdar (the then Asstt. Director, Door Dorshan Kendra(DDK) Itanagar, Arunachal Pradesh), (2) Shri Biswa Kumar Das (Production Asstt. DDK, Itanagar, Arunachal Pradesh), (3) Shri Lakhiram Das @ Lakshmi Ram Das (Production Asstt. DDK, Itanagar, Arunachal Pradesh), (4) Shri Jommy Mele, (5) Shri Om Prakash Kharakwala (the then Sr. Technician, DDK, Itanagar, Arunachal Pradesh), (6) Shri Suresh Chandra Kandpa (the then Manager, Arunachal Page No.# 4/15

Pradesh State Co-operative Apex Bank, Nirjuli Branch.), stood trial in Special Case No. 67/2005, under Sections 120B/420/465/468/471 IPC read with Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act, for misappropriation of public funds to the tune of Rs. 5 lacs; allocated for the year 1999-2000; Rs. 50 lacs allocated for the year 2000-2001; and Rs. 30 lacs allocated for the year 2001-2002, for the DDK, Itanagar, under Special Software Scheme Revenue (plan) for production of commissioned programmes. It was alleged that they have misappropriated the sum by floating bogus production companies in the names of their family members, getting the programmes made by these bogus companies approved for telecast and collecting and encashing the crossed cheques favouring these bogus firms from the banks, in gross abuse of their official position, thereby causing a wrongful loss to the Door Darshan Kendra to the tune of Rs. 1 Crore, approximately. After the trial, all the respondents were acquitted by the learned Special Judge, CBI, Assam, Additional Court No.1, Chandmari, Guahati, vide judgment and order dated 06.12.2017.

2.2. Being aggrieved by the impugned judgment and order, the applicant, i.e., The Director, Central Bureau of Investigation (CBI), decided to challenge the acquittal by filing criminal leave petition as well as appeal. In the whole process delay of 313 days occasioned and to condone the same it has preferred the present application in preferring the criminal leave petition for granting permission to file appeal against the respondents."

3. Heard Ms. P. Das, Ld. Counsel for the applicant and Mr. D.K. Das, learned Senior Counsel for the respondent No. 1 & 6.

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4. Ms. Das, learned counsel for the applicant submits that the judgment was delivered on 06.12.2017, and certified copy of the judgment was obtained on 11.12.2017, and thereafter, as per norms it was sent for opinion of Law Officer on 13.12.2017, and the same was obtained on 27.12.2017 and thereafter, comment of Head Of Department (Applicant/Appellant herein) was prepared and sent the same to him on 10.01.2018, recommending filing of appeal against the acquittal. Thereafter, DIG (Range), CBI, Guwahati has given his comment and comment of ALA, CBI, New Delhi was also obtained. Thereafter comment of Director of Prosecution was obtained on 23.03.2018, and finally approval for filing appeal against the acquittal was obtained on 04.04.2018. Thereafter, approval from the Under Secretary (V-II), Department of Personal & Training, Ministry of Personnel, Public Grievances & Pension, Govt. of India, New-Delhi was received on 01.06.2018. Thereafter draft appeal along with the petition for condonation of delay was prepared and sent to the retaining counsel of CBI for taking further steps. Ms. Das further submits that while observing all these formalities delay of 313 days occurred and the same was neither deliberate nor it was intentional. Therefore, Ms. Das contended to allow the application.

5. Per contra, Mr. D.K. Das, learned Senior Counsel for the respondents submits that the delay has not been properly explained by the applicant. Mr. Das has pointed out that the judgment was pronounced on 06.12.2017, and the certified copy was obtained on 11.12.2017, and the appeal, along with the leave petition and the petition for condonation of delay, was filed on 21.12.2018. Mr. Das, however, has not controverted the explanation so offered by the applicant, for the delay till 01.06.2018. But, Mr. Das submits that there is no explanation for the delay after 01.06.2018, till 21.12.2018. Referring to a judgment of a co-

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ordinate Bench of this court in IA (Crl.) 25(AP)/2018 in Crl. Rev. P. 17 (AP)/2018, (Director, CBI vs. Surendra Kumar Badiala & 4 Ors.) Mr. Das submits that for want of proper explanation the petition for condonation of delay of 326 days was declined by this court and the said judgment has to be respected by this Bench in view of the law laid down by the Hon'ble Supreme Court in Sandhya Educational Society and Anr. vs. Union of India, (2014) 7 SCC 701. Therefore, Mr. Das contended to dismiss this petition.

6. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the case laws referred by the learned counsel for the respondents. Before directing a discussion to the submissions, so advanced by learned Advocates at the Bar, it would be apposite to understand legal proposition in respect of condonation of delay, as propounded by Hon'ble Supreme Court in some of the cases.

7. In the case of Collector, Land Acquisition, Anantnag vs. Mst. Katiji: (1987) 2 SCC 107, Hon'ble Supreme Court has observed as under:-

"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice - that being the life purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy, and such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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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.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the "State" which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the "State" is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even- handed justice on merits in preference to the approach which scuttles a decision on merits."

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8. In the case of M.K. Prasad versus P. Arumugam: 2001(6) SCC 176, it has been held as under in para 9.

9. Again in State of W.B. v. Administrator, Howrah Municipality and G. Ramegowda Major v. Special Land Acquisition Officer this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant, in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the court should normally condone the delay....

9. In the case of Ram Nath Sao @ Ram Sahu & Others versus Gobardhan Sap & Others: 2002(3) SCC 195, the position in respect of condonation of delay has been succinctly set out in para No. 12, which reads as under:

"12. ...Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner..."

10. In the case of Postmaster General and others vs. Living Media India Limited and another: (2012) 3 SCC 563, Hon'ble Supreme Court, while dismissing the application for condonation of delay of 427 days in filing the Special Leave Petition, held that condonation of delay is not an exception and it should not be used as an anticipated benefit for the government departments. It is also held that unless the Department has reasonable and acceptable reason for the delay and there was bonafide effort, there is no need Page No.# 9/15

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 cannot be accepted. In Para Nos. 25, 26, 27, 28, and 29, the Honourable Supreme Court dealt with the scope of 'sufficient cause' and held as follows:-

"25. We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster vs. Living Media Limited as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for the certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied for only on 08.01.2010 i.e., after a period of nearly four months.

26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Deponent nor the person-in- charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.

27. 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.

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28. 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 bona fides, 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.

29. 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

11. In the case of Oriental Aroma Chemical Industries Limited vs. Gujarat Industrial Development Corporation and another): 2010 AIR SCW 1788, Hon'ble Supreme Court has rejected an application for condonation of delay of 4 years in filing an application to set aside an ex-parte decree on the ground that the explanation offered for condonation of delay is found to be not satisfied. It has been observed as under:-

"Law of limitation being a substantive law, the appeals are to be filed within a time limit. Filing an appeal within a period of limitation is the rule and condonation of delay is an exception. Thus, while condoning the delay, the Courts must be cautious and only on genuine reasons, the Courts are empowered to condone the delay. The power of discretion to condone the delay is to be exercised judiciously and by recording reasons. The reasons furnished for condonation of delay must be candid and convincing. Therefore, the condonation of delay cannot be claimed as a matter of right and only on genuine reasons, the delay are to be condoned and not otherwise. In the event of condoning the huge Page No.# 11/15

delay in a routine manner, the Courts are not only diluting the law of limitation, but, unnecessarily encouraging this kind of lapses. Therefore, reasons which are all acceptable alone must be a ground for condonation of delay, and filmsy, false and casual reasons cannot be taken for the purpose of condoning the huge delay.

12. In the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy & Others, reported in MANU/SC/0932/2013, Hon'ble Supreme Court observed 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.

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 Page No.# 12/15

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 born 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.

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."

It is very important to consider the judgement of the Hon'ble Supreme Page No.# 13/15

Court in the case of Esha Bhattacharjee, wherein the Hon'ble Apex Court laid down certain principles which were culled out particularly and those principles are the guiding principles for the purpose of deciding the petitions filed to condone the delay. The above principles, cited supra reveals that the concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed totally to unfettered free play.

13. The legal principle that can be crystallized from the illuminating discourse is that "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice. There should be an explanation for every day's delay does not mean that a pedantic approach should be made. There should be a liberal, justice-oriented, non-pedantic, but, pragmatic approach while dealing with an application for condonation of delay. The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed totally to unfettered free play. The 'doctrine of equality' before law demands that all litigants, including the State as a litigant, are to be accorded the same treatment and the law has to be administered in an even-handed manner. A step-motherly treatment when the "State" is the applicant praying for condonation of delay has to be avoided. However, it should not be used as an anticipated benefit for the government departments, unless the department has reasonable and acceptable reason for the delay and there was bona-fide effort. Usual explanation that the file was kept pending for several months/years is unacceptable. The law of limitation binds everybody, including the Government. However, the State or a public body or an entity representing a collective cause should be given some acceptable latitude.

14. Keeping these principles in mind while the 'explanation', so forthcoming, for the delay of 313 days is examined herein this case; we are left unimpressed with the submissions, so advanced by Ms. Das, the learned counsel for the Page No.# 14/15

applicant. Here in this case the delay since 11.12.2017, till 01.06.2018 stands explained and the same appears to be plausible and to the considered opinion of this court, appears to be sufficient. The respondents also not disputed the same. However, as it is apparent, and also as rightly pointed out by Mr. D. Das, the learned counsel for the respondent, there is no explanation at all for the delay, after approval for filing appeal against acquittal by the Department of Personal & Training, Ministry of Personnel, Public Grievances & Pension, Govt. of India, on 01.06.2018, till filing of the appeal on 21.12.2018. Thus, I find that though the delay stands explained till 01.06.2018, yet, thereafter, till filing of the appeal on 21.12.2018, for 203 days, there is no explanation at all, let alone a plausible one. Thus, I find sufficient force in the submission Mr. Das, the learned counsel for the respondents and the case law, referred by him also fortified his submission.

15. Even adopting a pragmatic approach also towards the condonation of delay of 203 days, this court is unable to record concurrence with the submission of Ms. Das, the learned counsel for the applicant, as no explanation is forthcoming from the side of the applicant after 01.06.2018, till 21.12.2018. The casual, as well lackadaisical approach of the applicant towards filing of the appeal is writ large from the facts and circumstances on the record. The applicant and its machineries, appears to be not at all diligent. And as such, the law of equity also would not come into its aid. Even giving some acceptable latitude to the applicant, being the instrumentality/agency of the state, in view of the dictum of Hon'ble Supreme Court in Esha Bhattacharjee (supra), the delay of 203 days, cannot be condoned in absence of any explanation for the same.

16. In the result, we find no merit in this petition and accordingly the same Page No.# 15/15

stands dismissed. The parties have to bear their own cost.

JUDGE

Comparing Assistant