State Of Odisha (Vig.) vs Saliendra N.Praharaj
2021 Latest Caselaw 12186 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                             CRLLP No.65 of 2013

              State of Odisha (Vig.)               ....        Petitioner

                                   Mr.Sangram Das
                                   Standing Counsel, Vigilance

                                       -versus-

              Saliendra N.Praharaj                 ....       Opp. Party

                                   Ms. Tejasmita Mohapatra,
                                   Advocate

                                   CORAM:
                               JUSTICE S.K. SAHOO
                                     ORDER

Order No. 26.11.2021

I.A. No.09 of 2020 and Misc. Case No. 54 of 2013

12. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).

The State of Odisha (Vigilance) has filed the leave petition under section 378(4) of Cr.P.C. vide CRLLP No. 65 of 2012 seeking for leave to file appeal against the impugned judgment and order dated 28.078.2012 passed by the learned Special Judge (Vigilance), Cuttack in acquitting the opposite party of the charges under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988.

The accusation against the opposite party was that he committed criminal misconduct being a public servant by possessing disproportionate assets to the tune of Rs.3,05,892.18 paise to his known source of income during the check period from 01.12.1960 when he entered into Government service as // 2 //

L.D. Clerk till 22.12.1993, i.e. the date of his house search.

The learned trial Court after assessing the oral as well as documentary evidence came to hold that the opposite party during the check period had probable savings of more than the assets, which has been shown by the prosecution amounting to Rs.4,47,674.61 paise and as such, he had not acquired any disproportionate assets as a public servant and accordingly, he was acquitted of the charge.

The leave petition was filed on 01.05.2013 and the Stamp Reporter has pointed out that there is a delay of one hundred eighty seven days in filing the leave petition.

The petitioner filed an application under section 5 of the Limitation Act vide Misc. Case No. 54 of 2013 for condonation of delay in filing the CRLLP.

When the matter was listed on 19.02.2020, learned Standing Counsel for the Vigilance Department sought permission to file a better application for condonation of delay, which was allowed and accordingly, I.A. No. 9 of 2020 has been filed, inter alia, on the following grounds:

"3. That after delivery of the impugned judgment dated 28.07.2012, the learned Special Public Prosecutor, Vigilance, Cuttack after examining the matter in detail, vide his letter no. 413 dated 08.08.2012 to the Superintendent of Police, Vigilance Cell, Cuttack submitted a true copy of the said judgment along with his opinion for filing of a petition seeking leave of this Hon'ble Court to file appeal against the judgment dated 28.07.2012. On receipt of such opinion of the learned Public Prosecutor, the Superintendent of Police, Vigilance, Cuttack, again examined the relevant documents and referred the matter with his opinion to the I.G. of Police, Vigilance

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on 10.08.2012 whereafter such matter was referred to the learned Legal Adviser, Vigilance on 10.08.2012 and on re-examination of the matter, learned Legal Adviser rendered his opinion on 18.08.2012 for preferring an appeal against the said order of acquittal. Thereafter, the I.G. of Police, Vigilance Directorate, vide his letter no. 9265/Vig. Cell, dated 25.08.2012 submitted the proposal before the learned Standing Counsel, Vigilance for filing of a petition seeking leave of this Hon'ble Court with a true copy of the judgment dated 28.07.2012. The said proposal put forth by the I.G. of Police, Vigilance vide his letter dated 25.08.2012 was received by the concerned learned State Counsel. Consequent thereto, the concerned learned State Counsel requested the Superintendent of Police, Vigilance Cell to transmit the certified copy of the said judgment and deposition of witnesses. After receipt of such letter from the learned Standing Counsel, the Superintendent of Police, Vigilance Cell, vide his letter no. 9449 dated 29.08.2012 further requested the concerned Special Public Prosecutor, Vigilance Cuttack Division to procure the certified copy of the said judgment and the deposition of witnesses. In response to such letter, the certified copy of the judgment and the depositions were transmitted to the Superintendent of Police, Cell on 05.09.2012. The Superintendent of Police, Cell submitted such certified copy of the judgment dated 28.07.2012 along with the copy of the deposition to the concerned learned Standing Counsel on 12.09.2012 for filing of the required application seeking leave of this Hon'ble Court to

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appeal against the said judgment of acquittal.

4. That this deponent further humbly submits that despite submission of the proposal as well as the certified copy of the judgment and the copies of deposition, there was delay in filing of the required petition for which the I.G. of Police, Vigilance, again on 16.11.2012 sent a letter to the learned Standing Counsel to expedite the process of filing of a petition before the Hon'ble Court. As there was further delay in getting intimation from the concerned Standing Counsel regarding filing of the required 'leave petition', the I.G. of Police, Vigilance sent a reminder dated 11.12.2012 requesting the learned State Counsel to take urgent steps for filing of the required leave petition. In as much as, the Vigilance Directorate vide reminder letters dated 05.04.2012 and 17.04.2012 repeatedly requested the concerned Standing Counsel, Vigilance to ensure early filing of the leave petition before this Hon'ble High Court. In a bid to avoid further delay, the Superintendent of Police, Vigilance Cell on 30.04.2013 instructed this deponent to meet the concerned Standing Counsel (Vigilance) personally and to request him to ensure early filing of the 'leave petition'. Accordingly, this deponent had visited the office of the learned Standing Counsel, Vigilance on 30.04.2013 and requested him to file the 'leave petition'. Consequent thereto, the concerned Standing Counsel (Vigilance) took prompt steps and the instant 'leave petition' was filed on the next date i.e. on 01.05.2013.

5. That, it is further humbly submitted that as

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there has been apathy on the part of the concerned learned Standing Counsel (Vigilance) in taking appropriate steps for filing of the 'leave petition' before this Hon'ble Court in time, such inaction on the part of the learned Standing Counsel, Vigilance was viewed in proper perspective and subsequently, decision was taken by the Vigilance Directorate to disengage him. It would not be inapposite to note here that not only the instant 'leave petition' but in a number of such matters, the concerned learned Standing Counsel, Vigilance failed to take prompt and appropriate steps in filing 'leave petitions'/ appeals within the period of limitation.

6. That in view of the aforesaid circumstances, it is further humbly submitted that a client should not suffer for the latches on the part of the concerned counsel. In the instant case, due to willful latches on the part of the concerned learned Standing Counsel, Vigilance , there has been delay in preferring the captioned 'leave petition'. Thus, the petitioner was prevented by sufficient cause in filing this petition in time before this Hon'ble Court.

7. That, there is no deliberate or intentional latches on the part of the petitioner in preferring this petition seeking leave of this Hon'ble Court to appeal in time. However, the bonafide delay caused in filing the petition was due to escorting to certain official and consultative processes before filing of petition. Thus, the delay in filing this leave petition was unintentional and bonafide."

Ms. Tejasmita Mohapatra, learned counsel appearing for

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the opposite party filed objection to the application for condonation delay wherein it is stated as follows :

"3. That, mainly in para-2,3,4 & 5 of the I.a. the causes given are not sufficient and satisfactory to condone the delay. There is a delay of 187 days in filing appeal. The impugned judgment is dated 28.07.2012 whereas the appeal is filed on

01.l05.2013. The first cause shown, the vigilance counsel i.e. Special Public Prosecutor Vigilance took about 12 days for giving his opinion for filing appeal to the S.P., Vigilance Cell, Cuttack with a true copy of the judgment. Then the file was moved to I.G. of Police, Vigilance for opinion, who also referred the matter on 10.08.2012 to the legal adviser for opinion, who rendered his opinion on 18.08.2012 in favour of filing appeal. On 25.08.2012 I.G. Vigilance to file appeal before the Hon'ble Court enclosing the true copy of the judgment. And on receiving the said proposal the learned Standing Counsel requested S.P., Vigilance to supply the certified copy of the judgment and deposition of the witnesses. Thus, on 29.08.2012, the S.P., Vigilance requested the concerned Special P.P., Vigilance on 05.09.2012 who in turn submitted the same on 12.09.2012 to the learned Standing Counsel, Vigilance for filing of appeal against acquittal.

However, it was further submitted that the delay happened in filing appeal and the I.G. Vigilance again by his letter dated 16.11.2012 to expedite the process of filing the leave petition but as there was further delay in getting intimation about filing of leave

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petition, the I.G. Vigilance sent reminder on 11.12.2012 to the learned State counsel to take urgent steps to file the same. Further stated reminder was further sent on 05.04.2013, 17.04.2013 for early filing of leave petition and to avoid further delay S.P. Vigilance instructed Ranjan Kumar Das, deponent of the petition on 30.04.2013 to meet the standing counsel and expedite the matter for filing the leave petition as such on 01.05.2013 the same was filed.

4. That it is respectfully submitted that these facts are bereft of record and not at all sufficient cause for condonation of delay to take away the valuable right accrued in favour of opposite party when judgment was delivered don 28.07.2012, certified copy was obtained in the month of September and the same was submitted to standing counsel on 121.09.2012, there was no sufficient cause why there was a delay of more than 40 days in availing certified copy. It is also further submitted that after 12.09.2012 certainly there is lack of due diligence on the part of the petitioner to prosecute the same when limitation started rather it shows the standing counsel requested the petitioner to take appropriate steps for filing leave petition but the fact narrated in para 4 shows lack of appropriate steps and due diligence in the matter. The S.P. Vigilance deputed the deponent of the delay petition to contact standing counsel on 30.04.2013 only thus the same was filed on 01.05.2013. So, it is clear and apparent that after 112.09.2012 till 30.04.2013 the petitioner was negligent in the matter and there was lack of due diligence. Hence, the cause shown are not sufficient and also bereft of record."

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In support of such contentions, learned counsel for the opposite party has placed reliance on the decision of the Hon'ble Supreme Court in the case of Office of the Chief Post Master General and others -Vrs.- Living Media India Ltd.& another reported in A.I.R 2012 Supreme Court 1506. She further submitted that the opposite party is now eighty one years of age and he is suffering from brain injury and he is unable to walk and due to such injury, he is facing memory problems and when the order of acquittal was passed on 28.07.2012 and there is no perversity in the impugned judgment and order of acquittal and when sufficient grounds are not shown in the application for condonation of delay, in the interest of justice, the delay should not be condoned and the leave petition should be dismissed.

In the case of The Chief Post Master General (supra), the Hon'ble Apex Court in paragraphs 12 and 13held as follows :

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

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gross negligence or deliberate inaction or lack of bonafide, 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 bonafide 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

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such a huge delay.

In the case of The State of Madhya Pradesh & others -Vrs.- Bherulal, reported in 2020(II) Orissa Law Reviews (SC) 1034, the Hon'ble Supreme Court held that there have to be proper and convincing reasons for the delay in the state authorities filing appeals or petitions. The bar of limitation can even shut out good cases.

Considering the ratio laid down by the Hon'ble Supreme Court in the aforesaid decisions and the grounds taken in the interim application as well as objection raised by the opposite party, I am of the view that no sufficient grounds have been shown by the petitioner for condoning the delay. Merely because the petitioner is a wing of the State Government, the application cannot be considered liberally. The delay on account of administrative exigencies cannot be accepted when it appears to be not justified. Accordingly, I am not satisfied with the explanation for the delay in filing the leave petition and find no cogent reason to condone the delay.

Accordingly, both the applications being devoid of merit are dismissed.

( S.K. Sahoo) Judge

CRLLP No. 65 of 2013

13. With the dismissal of the applications for condonation

of delay, the CRLLP for leave to appeal also stands dismissed.

( S.K. Sahoo) Judge PKSahoo

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