Kerala High Court
State Of Kerala Represented By The ... vs K.Kalakumar on 30 January, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
Thursday, the 30th day of January 2025 / 10th Magha, 1946
CM.APPL.NO.1/2023 IN WA NO. 1760 OF 2023
AGAINST THE JUDGMENT DATED 29.07.2022 IN WP(Crl.) 536/2022 OF THIS COURT
APPLICANTS/APPELLANTS/RESPONDENTS 1,2,3 IN WP(CRL):
1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERNAKULAM - 682031
2. THE CIRCLE INSPECTOR, OFFICE OF THE CIRCLE INSPECTOR OF POLICE,
KULATHUPUZHA P.O., KOLLAM-691 310.
3. THE STATION HOUSE OFFICER, THENMALA POLICE STATION P.O., KOLLAM-691 308.
RESPONDENT/RESPONDENTS/PETITIONER AND 4TH RESPONDENT IN WP(CRL):
1. K.KALAKUMAR, AGED 52 YEARS S/O.KRISHNANKUTTY NAIR, SREEJA BHAVAN,
ACHANKOVIL P.O., PIRAVANTHOOR (VIA), KOLLAM DISTRICT-689 696., PIN -
689696
2. MURUKESAN.R., AGED 43 YEARS S/O.RAMAMCHANDRAN PILLAI, BEENA VILASOM,
ACHANKOVIL P.O., PIRAVANTHOOR, KOLLAM :689 696.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to condone the delay
of 398 days in filing the writ appeal in the interest of justice.
This Application coming on for orders on 30.01.2025 upon perusing
the application and the affidavit filed in support thereof, and upon
hearing the arguments of GOVERNMENT PLEADER, for the Applicants and of
ADVS.M/S.ABDUL JAWAD.K, A.GRANCY JOSE & AISHA, Advocates for the
respondent 1, the court on the same day passed the following:
RAJA VIJAYARAGHAVAN V.,
&
P.V.BALAKRISHNAN, JJ.
-------------------------------
Writ Appeal No. 1760 of 2023
-------------------------------
Dated this the 30th day of January, 2025
ORDER
Raja Vijayaraghavan V., J.
This application is filed under Section 5 of the Limitation Act, 1963,
seeking to condone the delay of 398 days in filing the Writ Appeal.
2. In the affidavit filed in support of the petition for condonation of
delay, it has been stated as follows in paragraph No.6:-
"6. Unfortunately, due to the heavy workload in the office of
the learned State Prosecutor, the memorandum of writ appeal
could not be prepared within time and hence a delay of 398 days
occurred in filing the complaint."
3. A counter affidavit has been filed by the 1st respondent. It is stated
therein that sufficient cause has not been made out for condoning the inordinate
delay of over 398 days in filing the appeal. As regards the merits of the matter, it
is stated that the 1st respondent had filed W.P.(Crl.) No.536 of 2022 seeking to
quash the FIR No. 147 of 2002 registered on 24.05.2002 under Sections 498A
and 306 of the IPC wherein he was arrayed as the accused. The above crime
was originally registered on 24.05.2002 under Section 174 of the Cr.P.C. when
the wife of the 1st respondent had taken her own life by committing suicide.
Later, Sections 498A and 306 of the IPC were incorporated. Despite the passage
of over two decades, the investigating agency failed to submit the final report
Crl.M.A.No.1 of 2023 in
before the jurisdictional court. A report had been filed before the jurisdictional
court by the investigating officer stating that the original records pertaining to
the case had been irretrievably lost and that the submission of the final report
with the accompanying documents and material objects before the jurisdictional
court had become virtually impossible. The learned Single Judge, after evaluating
all the facts and circumstances, allowed the petition by a well-considered
judgment. It is stated that the appeal filed belatedly by the appellant is with the
sole objective of subjecting the 1st respondent to serious hardship and
inconvenience.
4. We have heard the learned Government Pleader and the learned
counsel appearing for the 1st respondent.
5. The learned Public Prosecutor submitted that the delay was
occasioned due to the immense workload in the office of the State Public
Prosecutor.
6. We have carefully considered the submissions advanced and have
perused the entire records.
7. The only reason stated in the affidavit is that the filing of the
appeal was delayed due to workload in the office of the public prosecutor. The
only question is whether the cause offered can be considered a 'sufficient cause'
in the facts and circumstances and permit the applicant to pursue a stale matter.
8. The Apex Court in Collector, Land Acquisition, Anantnag and
Another vs. Mst. Katiji and Ors.1, the existence of 'sufficient cause' for not
(1987 (2) SCC 107)
Crl.M.A.No.1 of 2023 in
Writ Appeal No.1760/2023 3
filing the appeal in time, is a condition precedent for exercising the discretionary
power to condone the delay. It was also observed that phrases like 'liberal
approach', 'justice-oriented approach' and 'cause for the advancement of
substantial justice' cannot be employed to defeat the law of limitation so as to
allow stale matters or as a matter of fact dead matters to be revived and
re-opened by taking aid of Section 5 of the Limitation Act.
9. In Basawaraj and Another vs. Special Land Acquisition
Officer2, the Apex Court has held that the discretion to condone the delay has
to be exercised judiciously based on the facts and circumstances of each case.
The expression 'sufficient cause' as occurring in Section 5 of the Limitation Act
cannot be liberally interpreted if negligence, inaction or lack of bona fide is writ
large. It was also observed that even though limitation may harshly affect the
rights of the parties, but it has to be applied with all its rigour as prescribed
under the statute as the courts have no choice but to apply the law as it stands
and they have no power to condone the delay on equitable grounds. It was
observed in paragraphs 12 and 15 of the judgment as under:
12. It is a settled legal proposition that law of limitation may harshly
affect a particular party but it has to be applied with all its rigour when the
statute so prescribes. The Court has no power to extend the period of
limitation on equitable grounds. "A result flowing from a statutory provision
is never an evil. A Court has no power to ignore that provision to relieve
what it considers a distress resulting from its operation." The statutory
provision may cause hardship or inconvenience to a particular party but the
court has no choice but to enforce it giving full effect to the same. The legal
maxim dura lex sed lex which means "the law is hard but it is the law",
(2013 (14) SCC 81)
Crl.M.A.No.1 of 2023 in
Writ Appeal No.1760/2023 4
stands attracted in such a situation. It has consistently been held that,
"inconvenience is not" a decisive factor to be considered while interpreting a
statute.
xxxxxx xxxxxx xxxxx
15. The law on the issue can be summarised to the effect that
where a case has been presented in the court beyond limitation, the
applicant has to explain the court as to what was the "sufficient cause"
which means an adequate and enough reason which prevented him to
approach the court within limitation. In case a party is found to be negligent,
or for want of bona fide on his part in the facts and circumstances of the
case, or found to have not acted diligently or remained inactive, there cannot
be a justified ground to condone the delay. No court could be justified in
condoning such an inordinate delay by imposing any condition whatsoever.
The application is to be decided only within the parameters laid down by this
Court in regard to the condonation of delay. In case there was no sufficient
cause to prevent a litigant to approach the court on time condoning the
delay without any justification, putting any condition whatsoever, amounts to
passing an order in violation of the statutory provisions and it tantamounts
to showing utter disregard to the legislature.
10. In Esha Bhattacharjee vs Managing Committee of
Raghunathpur Nafar Academy and Ors.3 the Apex Court delineated the
principles of law that are to be borne in mind while considering an application
under Section 5 of the Limitation Act. Paragraph Nos. 21 and 22 of the judgment
reads as follows:-
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
AIR 2013 SC 6158
Crl.M.A.No.1 of 2023 in
Writ Appeal No.1760/2023 5
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
Crl.M.A.No.1 of 2023 in
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 interpoliation 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 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 the 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
Crl.M.A.No.1 of 2023 in
consistency and collegiality of the adjudicatory system should be
made as that is the ultimate institutional motto.
22.4. The increasing tendency to perceive delay as a non-serious matter
and hence, lackadaisical propensity can be exhibited in a nonchalant
manner requires to be curbed, of course, within legal parameters.
11. In light of the principles discussed above, we are of the considered
view that the reasons advanced to persuade this Court to condone the delay and
take the appeal on board do not constitute a sufficient cause. Negligence, laches,
and lack of bona fides are evident on the face of the record. Every office,
irrespective of its nature, will have a workload; however, it is incumbent upon the
State to ensure that matters requiring judicial intervention are pursued before
the higher court within a reasonable timeframe. Under no circumstances can a
delay of over one year in preferring an appeal be justified on the grounds of
office workload.
12. There is yet another dimension to this matter. An evaluation of the
facts noted by the learned Single Judge reveals that the filing of the appeal is
merely a pretext to cover up the serious lapses and laches of the investigating
agency, which has managed to keep the 1st respondent under the shadows of
criminal prosecution for over two decades. We feel that by filing this appeal and
keeping it pending, the only purpose that would be served is to legalise the
injustice that has been caused to the 1st respondent.
13. We shall now state the reasons that compelled us to make the
foregoing observations. As stated earlier, the FIR was registered on 24.05.2002
Crl.M.A.No.1 of 2023 in
under Section 174 of the Cr.P.C., in connection with the suicide committed by the
wife of the 1st respondent herein. The records reveal that the final report was
initially filed before the office of the Judicial First Class Magistrate-I, Punalur, on
30.12.2003. However, it was returned on 16.05.2006 on the ground that the FIR
and other related documents had not been produced. Subsequently, the learned
Magistrate directed the Station House Officer, Thenmala Police Station, to collect
the entire records and re-present the final report. However, the final report was
resubmitted only on 17.04.2021 after an inordinate delay of nearly one and a
half decades. This report too was returned on 21.04.2021 with specific remarks
citing the failure to attach copies of the final opinion of item Nos. 11, 12, 16, and
10. Despite the directions issued by the learned Magistrate, the records were not
resubmitted thereafter. Instead, the Station House Officer filed a report stating
that the original CD file was missing, and the only records available with the
police were the returned final report and statement. It was further reported that
the CD files and material objects (MOs) in Crime No. 147 of 2002, which were
kept in the "Thondy Room" of Thenmala Police Station, were irretrievably lost
due to leakage in the roof. The learned Single Judge, while quashing the
proceedings, took note of the grave delay and observed that, despite the crime
being registered as early as 2002, the final report had not been filed even after
nearly two decades. The immense trauma and hardship suffered by the 1st
respondent due to the prolonged pendency of the crime loomed over
him like the sword of Damocles. The learned Single Judge also acknowledged
Crl.M.A.No.1 of 2023 in
that the service prospects of the 1st respondent had been adversely affected as
a result. The learned Single judge had also adverted to the principles of law laid
down in Hussainara Khatoon and Others v. Home Secretary, State of
Bihar4, Abdul Rehman Antulay and Others vs. R.S.Nayak and Another5
and Vakil Prasad Singh vs. State of Bihar6 and it was held that the right to
speedy trial is an inalienable right which can be traced to Article 21 of the
Constitution of India.
14. We are of the view that since the applicant has not made out any
cause, let alone any sufficient cause, to condone the delay of 398 days in filing
the appeal, we are unable to exercise our discretionary power. Even otherwise,
we are firm in our view that allowing the application for condoning the delay of
398 days will only perpetuate and exacerbate the injustice that the 1st
respondent has already endured for over two decades.
This application is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V.
JUDGE
Sd/-
P.V.BALAKRISHNAN
JUDGE
Bng
[(1980) 1 SCC 81]
[(1992) 1 SCC 225]
[(2009) 3 SCC 355]
30-01-2025 /True Copy/ Assistant Registrar
