Kerala High Court

State Of Kerala Represented By The ... vs M.H Shabeer on 6 March, 2025

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
         Thursday, the 6th day of March 2025 / 15th Phalguna, 1946
               CRL.M.APPL.NO.1/2024 IN CRL.A NO.2217 OF 2024
               CRIME NO.8/2013 OF VACB, ERNAKULAM, Ernakulam

  CC 306/2016 (VC 08/2013/EKM ) OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE
                         (VIGILANCE), MUVATTUPUZHA

APPLICANT/APPELLANT/COMPLAINANT:

     STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
     KERALA, ERNAKULAM

RESPONDENT/RESPONDENT/ACCUSED:

     M.H SHABEER,S/O HASSAN RATHER, AGE 58/2021, MALIAKKAL HOUSE,
     KIZHAKKEKARA, MUVATTUPUZHA, ERNAKULAM, (FORMER AGRICULTURAL OFFICER,
     PAIPRA).


     Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to condone the delay
of 109 days in filing the Criminal Appeal in the interest of justice.


     This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of the PUBLIC PROSECUTOR for the petitioner and of SHRI K.D'SOUZA PHILIP,
Advocates for the respondent, the court passed the following:




                                                                     P.T.O.
                     P.G. AJITHKUMAR, J.
   -----------------------------------------------------------
                Crl.Appeal No.2217 of 2024
   -----------------------------------------------------------
           Dated this the 6th day of March, 2025


                           ORDER

This is a petition under Section 5 of the Limitation Act,

1963. The delay of 109 days in filing the appeal is sought to

be condoned.

2. The petitioner, who is the Deputy Superintendent of

Police, Vigilance and Anti-Corruption Bureau, Ernakulam Unit,

avers in the affidavit as to the reason for the delay. The Public

Prosecutor after assimilating the judgment, recommended

filing of an appeal. On submitting a report in that matter, the

Home and Vigilance Department issued orders to file an

appeal. The matter was then placed before the Advocate

General and thereafter steps for filing the appeal were taken.

In that course, there occurred a delay of 109 days. It is

contended that there was no laches or negligence in the

matter of the delay.

3. The respondent filed a counter-affidavit. The

assertions of the petitioner have been controverted by the

respondent. It is contended that when there is an

administrative hierarchy, the contingencies made mention of

in the affidavit by the petitioner cannot be countenanced as

sufficient explanation for the delay. The administrative

exigencies pointed out are only lame excuses and are not

sufficient reasons to condone the delay. It is further

contended that the DCRG and pension due to the respondent

has been delayed and the petitioner further delayed filing of

the appeal. In the circumstances, the respondent seeks to

dismiss the petition.

4. Heard the learned Special Public Prosecutor

(Vigilance) and the learned counsel for the respondent.

5. The period of delay is not inordinate. However, the

petitioner is obliged to explain the reason for the delay

satisfactorily. The petitioner-appellant is the State, but that

does not clothe it with any privilege. Just like any private

individual, the State is also bound to furnish sufficient cause if

the delay is to be condoned.

6. In Collector, Land Acquisition, Anantnag v.

Katiji [(1987) 2 SCC 107], in the context of Section 5 of

the Limitation Act, 1963, the Apex Court held that, the

expression 'sufficient cause' employed by the legislature is

adequately elastic to enable the courts to apply the law in a

meaningful manner, which subserves the ends of justice, that

being the life-purpose for the existence of the institution of

Courts.

7. In Esha Bhattacharjee v. Managing Committee

of Raghunathpur Nafar Academy [(2013) 12 SCC 649]

the Apex Court while summarising the principles applicable

while dealing with an application for condonation of delay held

that, the concept of liberal approach has to encapsulate the

conception of reasonableness and it cannot be allowed a

totally unfettered free play. The Apex Court held further that,

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. Para 21 of

the judgment reads thus;

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

21.1 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 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 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4 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 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 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 The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8 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 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 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 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 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 The State or a public body or an entity representing a collective cause should be given some acceptable latitude."

[underlines supplied]

8. In Rafeek and another v. K. Kamarudeen and

another [2021 (4) KHC 34] a Division Bench of this Court

held that, though the expression 'sufficient cause' employed in

Section 5 of the Limitation Act, 1963 is adequately elastic to

enable the courts to apply the law in a meaningful manner,

which subserves the ends of justice, as held by the Apex

Court in Katiji [(1987) 2 SCC 107], the concept of liberal

approach has to encapsulate the conception of reasonableness

and it cannot be allowed a totally unfettered free play, as held

by the Apex Court in Esha Bhattacharjee [(2013) 12 SCC

649]. Inordinate delay, which attracts doctrine of prejudice,