State Of Kerala vs M.S.Anilkumar
2021 Latest Caselaw 12768 Ker

                             V.G.ARUN, J.

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    Crl.M.Appl.1/20 in Unnumbered Crl.A. (Filing No.8956/20)

                                    &

   Crl.M.Appl.1/20 in Unnumbered Crl.A.(Filing No.8981/2020)

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             Dated this the 8th day of June, 2021


                               ORDER

These applications are filed by the State seeking to condone

the delay of 394 and 409 days respectively, in filing appeals

against the common judgment in C.C.Nos.8 and 9 of 2016 of the

Enquiry Commissioner and Special Judge, Thalassery. The

prosecution allegation is that, the accused, while working as Block

Development Officer and Upper Division Clerk at the Block

Development Office, Kalpetta during the period from 10.9.1999 to

9.9.2000, had dishonestly misappropriated the money set apart for

disbursal to the BPL census enumerators and had thereby

committed the offences under Sections 409, 420, 465, 468, 471

and 120B of IPC and Sections 13(1)(c) and 13(1)(d) read with 13(2)

of the Prevention of Corruption Act. By the judgments sought to be

impugned in these appeals, the 1st accused stands acquitted of all

offences and the 2nd accused, for the offence under Sections 409,

420, 465, 468, 471 and 120B of IPC. The 2 nd accused is convicted

for the offences under Sections 13(1)(c)and 13(1)(d) read with Crl.M.Appl.1/20 in Unnumbered Crl.A. (Filing No.8956/20) & Crl.M.Appl.1/20 in

13(2) of the Prevention of Corruption Act. It is found that the 1 st

accused, who was the Block Development Officer as well as

the Secretary of the Kalpetta Block Panchayat could only be

attributed with supervisory lapses, since he had not committed

any criminal misconduct or obtained pecuniary advantage. As

far as the 2nd accused is concerned, the trial court found the

prosecution to have failed in producing evidence regarding the

commission of offence under Sections 409, 420, 465, 468, 471

and 120B of IPC but, to have been successful in letting in

evidence regarding the commission of offences punishable

under Section 13(1)(c) and 13(1)(d) read with 13(2) of the

Prevention of Corruption Act.

2. In the affidavit filed in support of the application for

condonation of delay it is stated that, after receipt of certified

copies of the judgment on 20.5.2019, they were scrutinised by

the Additional Legal Advisor and officers of the VACB, as well

as the Vigilance and Law Departments. Thereafter, by letter

dated 17.12.2019, the Additional Chief Secretary had

requested the Advocate General to initiate necessary steps for

filing appeals. This was followed by a request dated 9.1.2020 Crl.M.Appl.1/20 in Unnumbered Crl.A. (Filing No.8956/20) & Crl.M.Appl.1/20 in

form the Deputy Superintendent of Police (VACB), Wayanad

Unit also. Thereafter, the CD files of the case were forwarded

to the Advocate General on 14.2.2020. After receipt of the

records, the Public Prosecutor in charge of the case had

perused the case diary, depositions of witnesses and the

impugned judgment for the purpose of preparing the appeals.

In the meantime, lockdown was imposed in the State due to

the outbreak of Covid-19. While so, in view of the difficulties

faced by the litigants, the Honourable Supreme Court issued

an order on 23.03.2020, extending the statutory period of

limitation in all matters from 15.03.2020 onwards. (see: In Re:

Cognizance for Extension of Limitation [ILR 2020(2) Ker.

75(SC)]). The appeals have been filed within the extended

period of limitation, though with a delay of 409 and 394 days

respectively.

3. The 1st accused has filed a counter affidavit contending

that no valid and acceptable explanation has been offered for

condoning the inordinate delay. Further, there is absolutely no

explanation for the delay from 19.1.2019, the date on which

the Additional Chief Secretary sent communication to the Crl.M.Appl.1/20 in Unnumbered Crl.A. (Filing No.8956/20) & Crl.M.Appl.1/20 in

Advocate General requesting to file the appeals, to 14.1.2020,

the date on which the records were sent to the Advocate

General's Office.

4. Heard Smt.Sony K.B, learned Special Government

Pleader for Vigilance Cases and Sri.M.P.Prakash, learned

counsel for the 1st respondent.

5. Learned Special Government Pleader submitted that

the delay had occurred due to administrative reasons and the

unforeseen lockdown. That, the Honourable Supreme Court

having extended the period of limitation in all cases, the

benefit should be extended to the State also. It is contended

that the words 'sufficient cause' should be interpreted liberally,

particularly when State is the applicant. To buttress the

contention, reliance is placed on the decisions of the Apex

Court in State (NCT of Delhi) v. Ahmed Jaan [2008 14 SCC

582] and Esha Bhattacharjee v. Managing Committee of

Rajhunathpur Nafar Academy and Others [(2013) 12 SCC

649].

6. Learned counsel for the 1st respondent countered the

contention and argued that the State has no special status in Crl.M.Appl.1/20 in Unnumbered Crl.A. (Filing No.8956/20) & Crl.M.Appl.1/20 in

the eye of law and that, like every other litigant the State is

also bound to explain each day's delay. That, the vague

statements in the affidavits filed in support of the applications

are not sufficient to condone the inordinate delay. Relying on

the decision in Sagufa Ahmed v. Upper Assam Plywood

Products Pvt. Ltd. [ILR 2020 (4) Ker.1 (SC)], it is contended

that the appellants cannot take refuge under the order date of

the Honourable Supreme Court in In Re: Cognizance for

Extension of Limitation, since only the period of limitation

was extended. The intention is to help the vigilant litigants

who were prevented from approaching the court within the

limitation period due to the pandemic and the lock down.

Finally, it is argued that the trial court having acquitted the 1 st

accused of all the charges, entertaining the appeals against

acquittal filed after more than one year will cause serious

prejudice to him.

7. In Ahmed Jaan's case (supra), the Honourable

Supreme Court held that the expression "sufficient cause"

must receive a liberal construction so as to advance

substantial justice and that generally the delay in preferring Crl.M.Appl.1/20 in Unnumbered Crl.A. (Filing No.8956/20) & Crl.M.Appl.1/20 in

appeals ought to be condoned in the interest of justice, when

gross negligence or deliberate inaction or lack of bonafides is

not imputable to the party seeking condonation of delay. The

court also observed that a certain amount of latitude is

permissible when Government is the applicant.

8. In Esha Bhattacharjee's case (supra), the Apex

Court, after careful analysis of the precedents, culled out the

following principles;

"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 Crl.M.Appl.1/20 in Unnumbered Crl.A. (Filing No.8956/20) & Crl.M.Appl.1/20 in

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 scrutinised and the approach should be based on the Crl.M.Appl.1/20 in Unnumbered Crl.A. (Filing No.8956/20) & Crl.M.Appl.1/20 in

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."

The aforementioned principles provide a distinction between

inordinate delay and delay of short duration. The doctrine of

prejudice is attracted in cases of inordinate delay, but not

when the delay is of short duration. The former warrants a

strict approach while the latter calls for a liberal delineation.

Applying the principle, a strict approach has to be adopted in

these applications. Being so, failure to explain the delay

between 19.1.2019 and 14.2.2020 becomes fatal. Moreover,

the restraint with which an appeal against acquittal should be

entertained is also to be borne in mind, since acceptance of

the appeals at this distant point of time will definitely cause

serious prejudice to the accused.

9. The contention that, since the national lock down had

come into effect by the time the appeals were filed, the time

limit stood extended in view of the order in In Re:

Cognizance for Extension of Limitation (supra) cannot Crl.M.Appl.1/20 in Unnumbered Crl.A. (Filing No.8956/20) & Crl.M.Appl.1/20 in

hold good, as is discernible from paragraphs 19 and 23 of

Sagufa Ahmed (supra), extracted hereunder;

"19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only "the period of limitation" and not the period upto which delay can be condoned in exercise of discretion conferred by the Statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant abut their rights and not those sleep over them.

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23. Therefore, the expression "prescribed period" appearing in S.4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be "prescribed period".

The above discussion leads to the only possible

conclusion of the petitioners having failed to make out Crl.M.Appl.1/20 in Unnumbered Crl.A. (Filing No.8956/20) & Crl.M.Appl.1/20 in

sufficient cause for condoning the delay in filing the appeals.

In the result, the applications seeking condonation of

delay are dismissed.

Sd/-

V.G.ARUN, JUDGE

vgs