THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 18th October, 2023
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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I.A. No.02 of 2023 in CRL.L.P/16/2023/(Filing No.)
Petitioner : State of Sikkim
versus
Respondent : Suresh Pradhan
Application under Section 5 of the Limitation Act, 1963
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Appearance
Mr. Yadev Sharma, Additional Public Prosecutor for the Petitioner.
Mr. Umesh Ranpal, Advocate (Legal Aid Counsel) for the
Respondent.
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ORDER
Meenakshi Madan Rai, J.
1. The Petitioner seeks condonation of sixty-six days
delay in filing the Petition under Section 378(3) of the Code of
Criminal Procedure, 1973, seeking Leave to Appeal.
2. Learned Additional Public Prosecutor urging this Court
to condone the delay submitted that since the File was processed
from one officer to the next officer right from the Court Inspector
(C.I.) up to the highest authority of the State, consequently,
despite the best efforts put in by the Prosecution the delay
occurred in filing the application. He invited the attention of this
Court to the decision of the Supreme Court in Esha Bhattacharjee vs. 1 Managing Committee of Raghunathpur Nafar Academy and Others and
contended that the principles applicable for condonation of delay
have been elucidated therein. That, the Supreme Court has
observed inter alia that there should be a liberal, pragmatic,
1 (2013) 12 SCC 649 I.A. No.02 of 2023 in CRL.L.P/16/2023(Filing No.) 2 State of Sikkim vs.
Suresh Pradhan
justice-oriented, non-pedantic approach while dealing with an
application for condonation of delay as the courts are not supposed
to legalise injustice but are obliged to remove injustice. That, it
was further elucidated that the term "sufficient cause" should be
understood in its proper spirit, philosophy and substantial issues
should be paramount while technical considerations should not be
given undue and uncalled for emphasis. Hence, on the bed rock of
the principles enunciated in Esha Bhattacharjee (supra) the grounds
put forth for the delay in the Petition be given due consideration
and the delay condoned.
3. Stridently repudiating the contentions advanced by
Learned Additional Public Prosecutor, Learned Counsel for the
Respondent submitted that all that the State-Petitioner has put
forth by way of explanation for the delay is that the File was
forwarded by the C.I. to the Special Public Prosecutor (POCSO),
Sessions Court Namchi, who then forwarded it to the Deputy
Inspector General of Police (DIGP), Namchi Range, who was
responsible for forwarding it to the Special Director General of
Police (SDGP), Law and Order and then ultimately to the office of
the Advocate General from where it travelled to the highest
authority for approval as stated by the Learned Additional Public
Prosecutor. Consequent thereto, the Petition as well as the Leave
to Appeal was filed. That, such grounds do not culminate in
"sufficient cause" but merely exhibit a lackadaisical attitude on the
part of the Prosecution and the Police Officers concerned. That, as
the grounds fail to explain the delay sufficiently and as the Court is
to dispense justice to the litigants before it, which includes the
Respondent, who will be prejudiced if the above Petition is allowed,
the Petition deserves a dismissal.
I.A. No.02 of 2023 in CRL.L.P/16/2023(Filing No.) 3 State of Sikkim vs.
Suresh Pradhan
4. We have heard Learned Counsel for the parties and
given due consideration to their submissions. The grounds as put
forth by the State-Petitioner for the delay are as follows;
"...............................................................................................
2. That the judgment was pronounce (sic.) on 16.11.2022 in the instant case therefore the present appeal ought to be filed within 90 days i.e. within 16.02.2023.
3. That on 6.12.2022 the Superintendent of Police Namchi District, Sikkim forwarded the file to the Court Inspector for reasons of acquittal and whether appeal can be preferred before the Hon'ble High Court of Sikkim.
4. That on 13.12.2022 the Court Inspector forwarded the file to the concerned Spl. P. P. (POCSO) Sessions Court Namchi for opinion whether appeal can be preferred in the instant case.
5. That on 19.12.2022 the Spl. P. P. (POCSO) Sessions Court Namchi was of the opinion that there may be few and trivial grounds for preferring an appeal.
6. That thereafter the file was forwarded to DIG/Namchi Range and the same was forwarded for taking opinion from other authorities.
7. That on 6.1.2023 the Dy. Inspector General of Police, Namchi Police Range, Police Headquarter, Gangtok forwared the file to SDGP, Law and Order.
8. That on 19.1.2023 the SDGP, Law and Order was of the opinion that the appeal could be preferred and forwarded the file to Spl. Director General of Police, Law and Order, Police Headquarter.
9. That on 1.2.2023 the Spl. Director General of Police, Law and Order, Police Headquarter was of the opinion that there are adequate grounds for appeal and forwarded the file to Office of the Advocate General for opinion.
10. That on 14.02.2023 the Learned Additional Advocate General was of the considered opinion that appeal can be preferred in the instant case.
11. That on 14.2.2023 the Director General of Police, Govt. of Sikkim Gangtok forwarded the file for necessary approval.
12. That eventually on 12.03.2023 the file was approved for preferring an appeal before the Hon'ble High Court of Sikkim.
13. That on 27.3.2023 SDGP, Law and Order forwarded the file to the Office of the Advocate General for preferring an appeal.
14. That subsequently the office of the Advocate General took time to prepare and file the same before this Hon'ble Court.
15. That the delay in filing the Appeal before this Hon'ble Court is unintentional.
16. That the Petitioner/Appellant further states that the Petitioner/Appellant has a very good case on I.A. No.02 of 2023 in CRL.L.P/16/2023(Filing No.) 4 State of Sikkim vs.
Suresh Pradhan
merits and there is a good chance of success in the instant appeal.
17. That a delay of 66 days in filing the present appeal have occurred due to unintentional latches from the part of the Petitioner/Appellant. ..............................................................................................."
5. We find that although the impugned Judgment was
dated 16-11-2022, the Petitioner has failed to reflect the date on
which the application for certified copy of the Judgment was made.
Be that as it may, it appears that between the months of
November, 2022 to April, 2023, the File went from one office to the
next. In the interregnum on 19-12-2022 the Special Public
Prosecutor opined that there may be "few and trivial grounds for
preferring an appeal". The File was then forwarded to the Deputy
Inspector General of Police. The date of such forwarding has not
been mentioned, nevertheless, the Deputy Inspector General of
Police on 06-01-2023 forwarded the File to the Special Director
General of Police, Law and Order. The date on which the File was
forwarded to the Special Director General of Police, Law and Order
and to the Director General of Police (DGP) finds no mention as the
averment merely states that on 01-02-2023 the Special Director
General of Police, Law and Order "was of the opinion" that there
were adequate grounds for appeal. It thus emerges from a
consideration of the Petition that although dates have been
indicated in the Petition, they pertain to the dates on which the
concerned officer "formed their opinion". Thus, with clever drafting
the State-Petitioner has attempted to create a discombobulation in
the mind of this Court. Whatever be the reasons that the
Petitioner seeks to set forth for condonation of delay, it is apparent
that there has been a lackadaisical, laid back and callous attitude
on the part of the officers concerned in processing their opinions I.A. No.02 of 2023 in CRL.L.P/16/2023(Filing No.) 5 State of Sikkim vs.
Suresh Pradhan
and forwarding the File from their respective office to the next
authority.
6. That, having been said we deem it essential to consider
the plethora of Judgments on this point decided by the Supreme
Court of India. As far back as in 1987 in Collector, Land Acquisition, 2 Anantnag and Another vs. Mst. Katiji and Others , the High Court
refused to condone the delay of four days that had occurred in
filing the Appeal by the Collector in a land acquisition matter. The
Supreme Court setting aside the Order inter alia observed as
follows;
"3. ........ And such a liberal approach is adopted on principle as it is realized that:
.............................................................................
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.
..................................................................................
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.
.............................................................................."
(i) In State of Nagaland vs. Lipok AO and Others3, where the
State had delayed by a period of fifty-seven days in applying for
grant of leave to appeal before the High Court, against the
acquittal of certain accused persons, the Supreme Court reiterated
that where substantial justice and a technical approach were pitted
against each other, a pragmatic approach should be taken with the
former being preferred.
2
(1987) 2 SCC 107 3 (2005) 3 SCC 752 I.A. No.02 of 2023 in CRL.L.P/16/2023(Filing No.) 6 State of Sikkim vs.
Suresh Pradhan
(ii) In Postmaster General and Others vs. Living Media India 4 Limited and Another , the Supreme Court observed that in cases
when there was no gross negligence, deliberate inaction, or lack of
bona fides, a liberal concession ought to be adopted to render
substantial justice. However, merely because the State was
involved, no different metric for condonation of delay could be
applied. The Supreme Court also noticed that the Appellant
department had offered no proper and cogent explanation before it
for condonation of delay of 427 days apart from simply mentioning
various dates. The claim on account of the impersonal machinery
and inherited bureaucratic methodology of making file notes was
not acceptable in view of the modern technologies in use and
available. The Court thus went on to reject the prayer for
condonation of delay.
(iii) In Esha Bhattacharjee (supra) referred to by the Learned
Additional Public Prosecutor, the High Court had condoned the
delay of 2449 days. The Supreme Court while considering its
various pronouncements on the question of delay observed that,
neither leisure nor pleasure has any room while one moves an
application seeking condonation of delay almost seven years, on
the ground of lack of knowledge or failure of justice. Reference in
the said matter was made to N. Balakrishnan vs. M. Krishnamurthy5
where the following observations were made;
"11. ... The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending
4 (2012) 3 SCC 566 5 (1998) 7 SCC 123 I.A. No.02 of 2023 in CRL.L.P/16/2023(Filing No.) 7 State of Sikkim vs.
Suresh Pradhan
uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
(iv) The Supreme Court also culled out principles from the
various Judgment referred to by it as detailed in Paragraph 21 of
the ratio.
(v) In University of Delhi vs. Union of India and Others6, a
Bench of three Hon'ble Judges of the Supreme Court opined that
the delay of 916 days had not been sufficiently explained. The
Court distinguished the matter from Mst. Katiji (supra) on facts and
observed that the entire explanation for the inordinate delay of 916
days is twofold i.e., the non-availability of the Vice-Chancellor due
to the retirement and subsequent appointment of new Vice-
Chancellor and the fact that the matter was placed before the
Executive Council and a decision was taken to file the Appeal and
the said process had caused the delay. The Supreme Court
observed that the reasons as stated did not appear very
convincing, since the situation was of availing the appellate remedy
and not the original proceedings requiring such deliberation, when
it was a mere continuation of the proceedings which had already
been filed on behalf of the Appellant after due deliberation. That, in
Mst. Katiji (supra) it was held that every day's delay need not be
explained with such precision but the fact remains that a
reasonable and acceptable explanation is very much necessary.
That, in the matter of condonation of delay and laches, the well-
accepted position is also that the accrued right of the opposite
6 (2020) 13 SCC 745 I.A. No.02 of 2023 in CRL.L.P/16/2023(Filing No.) 8 State of Sikkim vs.
Suresh Pradhan
party cannot be lightly dealt with. The condonation of delay was
rejected with the Court having also noted that the Delhi Rail Metro
Corporation (DMRC) had received sums of money as far back as in
the year 2008. That, the said amount as indicated is used for its
projects providing metro rail service to the commuting public. In
such circumstance, if at this stage the inordinate delay is condoned
unmindful of the lackadaisical manner in which the appellant has
proceeded in the matter, it would also be contrary to public
interest.
(vi) The Supreme Court in Sheo Raj Singh (Deceased) through 7 Lrs. and Others vs. Union of India and Another was considering the
matter at the instance of certain affected landowners who had
challenged the Order dated 21-12-2011 passed by the Learned
Single Judge of the High Court of Delhi. By the Order under
challenge, the High Court had allowed an application filed by the
Union of India under Section 5 of the Limitation Act, 1963 and
thereby condoned the delay of 479 days in presentation of an
Appeal from the decision of the Reference Court under Section 18
of the Land Acquisition Act, 1894. The delay of 479 days in
presentation of the Appeal was condoned but not without the High
Court imposing costs of ₹ 10,000/- on the first Respondent. A
Bench in the Supreme Court comprising of two Hon'ble Judges in
appeal, considered a catena of Judgments on the point of
condonation of delay and ultimately opined as follows;
"37. Having bestowed serious consideration to the rival contentions, we feel that the High Court's decision to condone the delay on account of the first respondent's inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an
7 2023 SCC OnLine SC 1278 I.A. No.02 of 2023 in CRL.L.P/16/2023(Filing No.) 9 State of Sikkim vs.
Suresh Pradhan
exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests.
CONCLUSION
38. For the foregoing reasons and the special circumstances obtaining here that the impugned order reasonably condones the delay caused in presenting the appeal by the first respondent before the High Court, the present appeal is, accordingly, dismissed. Pending applications, if any, also stand disposed of."
7. From a careful consideration of the catena of
Judgments referred to hereinabove, it emerges that the State-
Petitioner is to be treated at par with any other litigant and no
special favour is to be bestowed on them while considering their
Petition for condonation of delay merely by virtue of the fact that
they are the Government. It is also evident that the impersonal
machinery, inherited bureaucratic methodology, lack of updation
on use of digital media by the concerned officers ought not to
thwart the ends of justice. The State Government as any other
litigant is to explain what "sufficient cause" prompted them to
require the indulgence of the Court to condone the delay, by
exercising its discretion. The Court is also to consider if there was
gross negligence, deliberate inaction, or lack of bona fides on the
part of the litigant or its Counsel, each case would have to be
considered on the peculiarity of its own facts. That, having been
said the overriding consideration in a Petition for condonation of
delay is that substantial justice ought to be given preference over
technical considerations when pitted against each other.
I.A. No.02 of 2023 in CRL.L.P/16/2023(Filing No.) 10 State of Sikkim vs.
Suresh Pradhan
8. Having considered the gamut of facts and grounds for the
delay placed before us, we have noticed that the File has moved
from one table to the next and sometimes the File has stayed on
one table for more than a week. It is worth remarking that such
delays merely expose the inefficiency and incompetence of the
concerned officer, although it may not necessarily indicate lack of
bona fides. It must be borne in mind that the Court is here to
mete out substantial justice and as held in Sheo Raj Singh (supra) if
the higher Court while refusing to condone the delay fails to
consider the legality and validity of an Order of the lower Court,
unholy gains would accrue to the opposite parties, which would be
a travesty of justice.
9. Thus, keeping the interest of justice in the forefront,
we allow the Petition and thereby condone the delay of sixty-six
days in filing the Petition of Leave to Appeal against the acquittal of
the Respondent.
10. However, all the officers/authorities mentioned in the
Petition shall jointly pay costs of ₹ 35,000/-(Rupees thirty five
thousand) only, from their personal accounts and deposit it with
the Sikkim State Legal Services Authority, for use in the
rehabilitation for disabled victims of the disaster of 4th October,
2023. The deposit shall be made within ten days from today failing
which the costs shall be enhanced.
11. I.A. No.02 of 2023 stands disposed of accordingly as
also I.A. No.01 of 2023.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
18-10-2023 18-10-2023
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