Sikkim High Court
State Of Sikkim vs Rup Narayan Rai (Chamling) And Ors on 15 May, 2024
Author: Bhaskar Raj Pradhan
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
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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. 1 of 2023
in
CRL. L.P. No. 31 of 2023 (Filing No.)
State of Sikkim ..... Applicant
versus
1. Rup Narayan Rai (Chamling),
Son of Lachuman Rai,
Aged about 51 years,
Resident of Upper Sadam,
District Namchi,
Sikkim - 737128.
2. Padma Kumar Chettri (Rai),
Wife of Rup Narayan Rai (Chamling),
Aged about 50 years,
Resident of Upper Sadam,
South Sikkim.
3. Damber Kumar Chettri,
Son of Krishna Bahadur Chettri,
Aged about 40 years,
Resident of Melli Gumpa,
South Sikkim.
4. Upashna Rai,
Daughter of Rup Narayan Rai (Chamling),
Aged about 23 years,
Resident of Upper Sadam,
South Sikkim. ..... Respondents
Application under Section 5 of the Limitation Act, 1963
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Appearance:
Mr. Yadev Sharma and Mr. S.K. Chettri, Additional Public Prosecutors, for
the Applicant.
Mr. K.T. Bhutia, Senior Advocate with Mr. Sishir Mothay, Advocate for the
Respondents.
I.A. No. 1 of 2023 in Crl. L.P. No.31 of 2023 (Filing No.) 2
State of Sikkim vs. Rup Narayan Rai (Chamling) and Ors.
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Date of hearing : 6th May, 2024
Date of judgment : 15th May, 2024
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JUDGMENT
Bhaskar Raj Pradhan, J.
1. This is to consider an application under Section 5 of the
Limitation Act, 1963 for condonation of delay of 273 days in
preferring criminal appeal against the judgment dated 30.6.2022,
passed by the learned Special Judge, Protection of Children from
Sexual Offences Act, 2012 at Namchi in Sessions Trial (POCSO)
Case No. 27 of 2020 in the matter of State of Sikkim vs. Rup
Narayan Rai (Chamling) & Others. The Stamp Reporter's
computation suggests that the delay is 274 days.
2. The delay is sought to be explained on various grounds.
According to the Applicant, on 28.9.2022 the learned Public
Prosecutor having received a copy of the judgment on 26.9.2022
opined that there were very few and trivial grounds to prefer an
appeal but nevertheless, opinion may be sought from the learned
Advocate General's Office. The time taken by the learned Public
Prosecutor to give his opinion is explained on the ground that the
case involved a lot of evidence and further that he had his personal
and other professional engagements. On a chance meeting on
9.12.2022 by the learned Public Prosecutor with the learned
Additional Public Prosecutor of this Court, it is said, he inquired
about the status of the opinion but the learned Additional Public
Prosecutor had no knowledge. The learned Additional Public
I.A. No. 1 of 2023 in Crl. L.P. No.31 of 2023 (Filing No.) 3
State of Sikkim vs. Rup Narayan Rai (Chamling) and Ors.
Prosecutor was, however, attending to his ailing mother at
Gyalshing. In February 2023 on the reopening of this Court, the
learned Additional Public Prosecutor inquired about the legal opinion
and found that there was no opinion sought. The learned Additional
Public Prosecutor on learning that the testimony of the victim had
not been demolished, sought for a copy of the judgment for
preferring an appeal. The copy of the judgment was received on
28.3.2023, after which it was examined, discussed and opined that
there was sufficient grounds for preferring an appeal. Thereafter,
the learned Additional Public Prosecutor on 29.3.2023 sought for
approval from the Director General of Police to file the appeal. The
Files, thereafter, moved from one Officer to the other on various
dates, back and forth, numerous times. A certified copy of the
judgment was obtained on 12.4.2023. On 19.5.2023, the Director
General of Police forwarded the File to the Chief Secretary,
Government of Sikkim, for approval and finally to the Hon'ble Chief
Minister on 24.5.2023, who eventually sanctioned the filing of an
appeal on 30.5.2023. Even thereafter, it was only on 15.6.2023, the
Legal Officer, Police Headquarter, forwarded the File to the learned
Advocate General for preferring an appeal. The Office of the
Advocate General, thereafter took further time to prepare the appeal
and finally filed it on 29.6.2023. According to the Applicant, delay
was caused due to sufficient and bona fide reasons and the State
had been vigilant and diligent.
3. The respondents have filed a reply to the application for
condonation of delay. It is contended that the application is
I.A. No. 1 of 2023 in Crl. L.P. No.31 of 2023 (Filing No.) 4
State of Sikkim vs. Rup Narayan Rai (Chamling) and Ors.
vexatious, harassive and based on misconceived facts. It is alleged
that it has been made with mala fide intention and ulterior motives.
It is pointed out that as per the copy of the judgment annexed with
the appeal, the judgment was ready on 1.7.2022 and therefore no
explanation is forthcoming from the Applicant for the period
1.7.2022 to 26.9.2022. It is also submitted that the explanations
made by the Applicant do not reflect that the prosecution was
diligent. The respondents contend that the applicant had any
substantial merits in the appeal which was filed after a delay of 275
days and not 273 days as pleaded by the Applicant.
4. Heard Mr. Yadev Sharma and Mr. S.K. Chettri, both
learned Additional Public Prosecutors, on behalf of the State-
Applicant. Heard Mr. K.T. Bhutia, learned Senior Counsel for the
respondents. Mr. K.T. Bhutia, learned Senior Counsel for the
respondents, vehemently contested the application for condonation
of delay. The learned Additional Public Prosecutors prayed that the
delay may be condoned in the interest of justice. The learned
Additional Public Prosecutors relied upon State of Sikkim vs. Raju
Chettri1, a judgment of a Division Bench of this Court in support of
their contentions. The learned Senior Advocate for the respondents
referred to two judgments of the Supreme Court, i.e., Union of
India vs. Jitendra2, State of Madhya Pradesh And Others vs.
Bherulal3 and of the High Court of Delhi in Principal Commissioner
of Income-Tax vs. National Fertilizers Ltd.
(2008) SCC Online Sikk 2: AIR 2008 Sikk 13
(2021) 10 SCC 789
(2020) 10 SCC 654
(2023)458 ITR 20 : 2023 SCC OnLine Del 5119
I.A. No. 1 of 2023 in Crl. L.P. No.31 of 2023 (Filing No.) 5
State of Sikkim vs. Rup Narayan Rai (Chamling) and Ors.
5. In Raju Chettri (supra), a delay of 450 days for filing an
appeal for enhancement of sentence under Section 377 of the Code
of Criminal Procedure, 1973 was condoned after examining the law
laid down by the Supreme Court in Shakuntala Devi Jain vs. Kuntal
Kumari5, New India Insurance Co. Ltd. vs. Smt. Shanti Misra6, G.
Ramegowda, Major vs. Special Land Acquisition Officer7 and State
of Haryana vs. Chandra Mani8.
6. In Chandra Mani (supra), the Supreme Court held:
―11. It is notorious and common knowledge that delay in more
than 60 per cent of the cases filed in this Court -- be it by private
party or the State -- are barred by limitation and this Court
generally adopts liberal approach in condonation of delay finding
somewhat sufficient cause to decide the appeal on merits. It is
equally common knowledge that litigants including the State are
accorded the same treatment and the law is administered in an
even-handed manner. When the State is an applicant, praying for
condonation of delay, it is common knowledge that on account of
impersonal machinery and the inherited bureaucratic
methodology imbued with the note-making, file-pushing, and
passing-on-the-buck ethos, delay on the part of the State is less
difficult to understand though more difficult to approve, but the
State represents collective cause of the community. It is
axiomatic that decisions are taken by officers/agencies
proverbially at slow pace and encumbered process of pushing the
files from table to table and keeping it on table for considerable
time causing delay -- intentional or otherwise -- is a routine.
Considerable delay of procedural red-tape in the process of their
making decision is a common feature. Therefore, certain amount
of latitude is not impermissible. If the appeals brought by the
State are lost for such default no person is individually affected
but what in the ultimate analysis suffers, is public interest. The
expression ―sufficient cause‖ should, therefore, be considered
with pragmatism in justice-oriented approach rather than the
technical detection of sufficient cause for explaining every day's
delay. The factors which are peculiar to and characteristic of the
functioning of the governmental conditions would be cognizant to
and requires adoption of pragmatic approach in justice-oriented
process. The court should decide the matters on merits unless
the case is hopelessly without merit.
.......................................................................................................................‖
7. In Raju Chettri (supra) referring to the judgments of the
Supreme Court in Chandra Mani (supra), Ram Nath Sahu vs.
AIR 1969 SC 575
AIR 1976 SC 237
(1988) 2 SCC 142
(1996) 3 SCC 132
I.A. No. 1 of 2023 in Crl. L.P. No.31 of 2023 (Filing No.) 6
State of Sikkim vs. Rup Narayan Rai (Chamling) and Ors.
Gobardhan Sao9, Divisional Manager, Plantation Division, Andaman
and Nicobar Islands vs. Munnu Barrick10 and Principal Secretary,
Transport Department, Government of Sikkim, Gangtok vs.
Narmaya Das11, the Division Bench of this Court held that the
position in law that can now be taken as fairly well-settled is that
while considering prayer for condonation for delay, explanation put
forward in the application should be considered along with merits of
the appeal and if it is found that serious points of law have been
raised in appeal the application for condonation of delay should not
be lightly brushed aside taking into account only the length in the
matter.
8. In Jitendra (supra), a delay of 607 days in filing an
appeal against bail in a matter involving NDPS Act was not
condoned as the explanation delay in processing of file was held to
be unsatisfactory and not acceptable. It was held that there was
gross negligence on the part of the officers concerned for
prosecuting the remedy. While doing so, the Supreme Court
deprecated the practice of authorities coming before the Supreme
Court after inordinate delay assuming as if the law of limitation does
not apply to them.
9. In Bherulal (supra), a delay of 663 days in preferring
special leave petition was not condoned as the reason attributed for
a delay was due to unavailability of documents and the process of
arranging the documents. It was held that it was a preposterous
AIR 2002 SC 1201
2005 AIR SCW 109
2006 ACJ 150
I.A. No. 1 of 2023 in Crl. L.P. No.31 of 2023 (Filing No.) 7
State of Sikkim vs. Rup Narayan Rai (Chamling) and Ors.
proposition propounded that if there is some merit in the case, the
period of delay is to be given a go by. It was held that if a case is
good on merits, it will succeed in any case. It is really a bar of
limitation which can even shutout good cases. However, it was also
held that this does not, of course, take away the jurisdiction of the
Court in an appropriate case to condone the delay.
10. The Supreme Court was of the opinion that both the
cases, i.e., Jitendra and Bherulal (supra), were cases categorised as
―certificate cases‖ and the object appeared to be to obtain a
certificate of dismissal from the Supreme Court to put a quietus to
the issue and thus, say that nothing could be done because the
highest Court has dismissed the appeal. Both Jitendra and Bherulal
(supra), are distinguishable from the facts of the present case.
11. In National Fertilizers (supra), a delay of 498 days in
preferring an appeal against an order passed by the Income Tax
Appellate Tribunal was not condoned by a Division Bench of the High
Court of Delhi as they could not find any cause explaining the delay.
12. These are the cases referred to by the learned counsel
for the parties. There are numerous other judgments sometimes
condoning lengthy delays and sometimes rejecting applications
based on sufficiency of the cause. Each of these cases has been
decided on the particular facts of each case. Section 5 of the
Limitation Act, 1963 pivots around ―sufficient cause‖. What is,
however, certain is that a pragmatic approach has to be adopted
and when substantial justice and technical approach are pitted
I.A. No. 1 of 2023 in Crl. L.P. No.31 of 2023 (Filing No.) 8
State of Sikkim vs. Rup Narayan Rai (Chamling) and Ors.
against each other substantial justice has to be preferred. Section 5
of the Limitation Act, 1963 has to be construed liberally towards
that end. Gross negligence, or deliberate inaction, lack of bona fides
are some of the grounds to be considered while deciding an
application for condonation. There cannot be a straightjacket
formula for deciding such applications. Courts of justice should not
have the tendency of fault finding with the cause shown and
accepting the explanation furnished should be the rule, and refusal,
an exception, unless gross negligence or deliberate inaction or want
of bona fides are glaringly visible. The explanation ought not to be
rejected on a pedantic and hyper technical view. While it is
important that litigants including the State are accorded the same
treatment and the law is administered in an even handed manner, a
little latitude is considered by the Courts when the State is the
litigant since it is common knowledge that decisions are taken at
slow pace and encumbered process of pushing the files from table to
table and keeping it on table for considerable time causing delay
although it is deprecated. Public interest invariably suffers if appeals
filed by the State are rejected on the ground of delay and not
considered. A justice oriented pragmatic approach is always
preferred although the Courts deprecate these practices and
bureaucratic red tapism in the process of decision making.
13. Although, the explanation in the condonation of delay
application is lacking in particulars in explaining certain periods of
the delay there is no lack of bona fides on the part of the State. The
Application reflects more or less what actually led to the delay. What
I.A. No. 1 of 2023 in Crl. L.P. No.31 of 2023 (Filing No.) 9
State of Sikkim vs. Rup Narayan Rai (Chamling) and Ors.
happened after having received a copy of the judgment immediately
on the next day of the passing of the judgment till the learned Public
Prosecutor is said to have received a copy on 26.9.2022 is in the
dark. The unexplained delay for these periods may be attributed to
the Officers of the prosecution who were handling the matter.
Although the State has offered no explanation for this period and
they ought to have it is but obvious that it is due to callousness of
the prosecution. However, it is also noticed that there has been no
attempt to mislead the Court by giving false explanation. It may
also equally be true that when the Additional Public Prosecutor of
this Court learnt about the case he could not immediately take steps
as he was attending to his ailing mother. What is noticeable is that
while the learned Public Prosecutor of the concerned Court gave an
opinion that there were few and trivial grounds in preferring an
appeal, he also was a little sceptical and sought for opinion from the
Office of the learned Advocate General. When the Office of the
learned Advocate General finally considered the case, they opined
otherwise. Thereafter, due to the winter break lethargy is noticed in
the follow-up action on the part of the concerned Legal Officers of
the State. Noticeably, ―the impersonal machinery in the inherited
bureaucratic methodology imbued with the note-making, file
pushing, and passing-on-the-buck ethos‖ is also reflected in the
explanation sought to be expounded in the application. While the
Legal Officers delayed in taking a firm decision, whether to file or
not to file the appeal, and delayed further in taking the necessary
approvals, the cause of justice lay hanging in uncertainty.
I.A. No. 1 of 2023 in Crl. L.P. No.31 of 2023 (Filing No.) 10
State of Sikkim vs. Rup Narayan Rai (Chamling) and Ors.
14. At this juncture, it may be essential to understand the
nature of the case. The appeal sought to be preferred is against a
judgment dated 30.6.2022 passed in a criminal prosecution against
the respondent no.1 for alleged offences under Sections 5(l) and
5(n), Section 7, Section 9(l) of the Protection of Children from
Sexual Offences Act, 2012 and under Sections 376 (2)(n), 376(3)
and 354 of the Indian Penal Code, 1860. The respondents no. 2 and
3 faced trial for offences under Section 201 of the IPC while the
respondent no.4 faced trial for offence under Section 21(1) of the
POCSO Act. A perusal of the impugned judgment also reflects that
26 prosecution and 4 defence witnesses were examined during the
trial. 48 documents were exhibited by the prosecution and 6 by the
defence. The learned Special Court finally acquitted the respondents
on the ground that the prosecution had failed to prove its case
beyond reasonable doubt. Evidently, the trial was against the
respondents for serious criminal charges. The complaint was filed by
the minor brother of a minor victim of having been sexually
assaulted on numerous occasions by her guardian - the respondent
no.1. Both the minor victim and the minor brother deposed before
the learned Special Court. The minor victim has deposed about the
incidents.
15. In a criminal prosecution, unlike civil cases, the lack of
diligence, lethargy, impersonal attitude not only affects the State
but also the victim. When delay is not condoned because of these
reasons, in a civil case it is the litigant who has failed to show
sufficient cause who is punished. However, in a criminal prosecution,
I.A. No. 1 of 2023 in Crl. L.P. No.31 of 2023 (Filing No.) 11
State of Sikkim vs. Rup Narayan Rai (Chamling) and Ors.
in most cases, the victims are waiting in the sidelines for justice
while the State prosecutes the accused persons. Lethargy, lack of
diligence, impersonal attitude of the State Officers seldom punishes
them when a condonation of delay application is rejected.
Invariably, however, the victim suffers. The criminal procedure
provides a statutory appeal against the judgment of the Special
Judge to review its correctness and legality with the ultimate aim to
do justice. Therefore, when the State machinery delays the process
due to indecisiveness of the Law Officers and impersonal attitude
and bureaucratic methodology, the cause of justice suffers. We are
thus of the view that in such criminal prosecutions it is equally
important to take into consideration this dimension while taking a
decision whether or not to condone the delay inspite of the tardiness
and inaction of the State machinery. This same Bench had taken a
similar view in State of Sikkim vs. Tenzing Bhutia12. When the
offences alleged relates to crime against minor children, this Court
owe an obligation to the society to examine such cases with utmost
sensitivity. (See Order dated 6.11.2000 passed by the Supreme Court in
State of Rajasthan vs. Madan in Criminal Appeal No. 939 of 2000)
16. On a pragmatic and justice oriented approach, we are of
the considered view that the State has shown sufficient cause for
the condonation of delay. We are also of the view that even the
lethargy and indecisiveness of the concerned Law Officers, lengthy
process of decision making by the concerned State Officers cannot
overrun the cause of substantial justice for the victim. We opine that
2018 SCC OnLine Sikk 189
I.A. No. 1 of 2023 in Crl. L.P. No.31 of 2023 (Filing No.) 12
State of Sikkim vs. Rup Narayan Rai (Chamling) and Ors.
justice shall be better served if the delay is condoned to enable us
to decide the criminal leave petition and appeal on its own merits.
17. In the facts and circumstances of the case, we are of the
considered view that it is a fit case where costs should be imposed
upon the Applicant. Let the Applicant pay costs of Rs.20,000/-
(Rupees twenty thousand) only, to Sikkim State Legal Services
Authority, Gangtok, within ten days from today for utilisation in the
Lee Aal Old Age Home.
18. Accordingly, the Application for condonation of delay is
allowed.
(Bhaskar Raj Pradhan) (Meenakshi Madan Rai)
Judge Judge
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