Gujarat High Court
State Of Gujarat vs Mohanbhai Jivabhai Ayar on 6 March, 1998
Equivalent citations: 1998CRILJ4425, (1998)3GLR367
ORDER A.K. Trivedi, J.
1. Ld. APP Mr. A.J. Desai appears for applicants in all the matters and Mr. K. B. Anandjiwala, Ld. Sr. Counsel appears on behalf of respondents in all the matters.
2. The applicant-State of Gujarat has moved above referred to applications in respect of all the matters with a prayer to condone the delay in presenting revision applications in respect to each of the said proceedings. That the question of law and facts being common in all the matters, with the consent of Ld. advocates appearing on behalf of the parties all the applications are heard together as group matters and are being disposed of by this common Judgment.
3. The applicant-State has prayed that in the Court of Ld. Spl. Judge, Junagadh the applications were filed on behalf of respondents of above stated matters with a prayer that the practice adopted by the investigating officer under Prevention of Corruption Act, 1988, arresting the persons simultaneously with registering offences after completion of trap and then producing them before the Spl. Court without waiting for due sanction as required under the law; is improper, unjust, illegal and as such results into undue harrasment to the accused for remaining in the custody. The Court can take cognizance of the offence from the papers and the accused could be arrested while filing the charge-sheet. The said applications were heard as group matters and the Ld. Spl. Judge has decided the same by common order, dated 9-5-97.
4. On being aggrieved and dissatisfied by the said common order, dated 9-5-97 passed by Ld. Spl. Judge, Junagadh the Ld. APP applied for certified copy of the order on 17-5-97 which was ready on 12- 6-97 and delivered on 13-6-97. That the Legal Department appears to have taken initial decision on 17-6-97 not to file any proceedings to challenge the said order and thereby the matters have remained pending. However, on receipt of proposal from the Home Dept on 1-8-97; the decision was reconsidered and Revision Applications with present Miscellaneous Applications were filed on 21 -10-97 pursuant to said decision. According to Govt, the delay of 48 days which was the result of requisite procedure to be followed in taking decision should be treated as sufficient cause preventing the Government as the applicant to file above slated Revision Applications in prescribed period of limitation. Hence, to condone the said delay the above stated Misc. Applications are filed.
5. Vide order, dated 13-1-1998 rule was issued and it was made returnable on 28-1 -1998. That the respective opponents of the above stated applications were served and appearances have been filed.
6. Mr. K. B. Anandjiwala, Ld. Sr. counsel appearing for Respondents; of Cri. Misc. Appln. No. 6873/97 has argued the matter at length for all the Respondents of Group and the Learned Advocates for respondents of above stated matters and others have adopted the arguments of Mr. Anandjiwala.
7. Mr. Anandjiwala has heavily relied on the observations made by the Supreme Court in the matter of Ajit Singh Thakkur v. State of Gujarat, reported in AIR 1981 SC 733 : (1981 Cri LJ 293). Referring to various dates from the date of Judgment to 1-8-97 the date of proposal coming from the Home Department and the averments made in the application; Mr. Anandjiwala has urged that subsequent events from expiry of period of prescribed limitation cannot make any impact in establishing the sufficient cause preventing a party from filing the proceedings within the meaning of Section 5 of the Limitation Act, 1963; and hence, wherever there is a delay before the expiry of period prescribed for filing of the proceedings; if such delay is not satisfactorily explained then it cannot be condoned under Section 5 of the Limitation Act. That in the instant case the impugned order is passed by the Ld: Spl. Judge on 9-5-97 and the State Government ought to have filed revision application in August, 1997 whereas they have filed on 21 -10-97 and thereby all the Applications should be dismissed as no sufficient cause has been established to explain the delay in taking the decision. That as a matter of fact the initial decision of the Legal Department not to challenge the impugned order was being just and proper, all the Misc. Applications deserve to be rejected.
8. Ld. APP-Mr. A. J. Desai has submitted that the initial decision of the Legal Dept. dated 17-6-97 may be tentative and not binding to Government; in the absence of appropriate Government Resolution. That the proper authority has subsequently taken the decision prior to expiry of the prescribed period. As per Ld. APP-Mr. Desai the period of limitation should be considered from 12th June, 1997 when the certified copy was ready and after deducting 3 days therefrom when the certified copy was applied; from the pronouncement of the order dated 9-5-97. That the decision is taken by the Government on 1-8-1997 is within prescribed period which expires on or about 4-9-97. Furthermore he has relied on the observations made by the Supreme Court in the matter of Spl. Tehsildar, Land Acquisition, Kerala v. K. V, Ayi summa reported in JT 1996 (7) SC 204 : (AIR 1996 SC 2750). It is also submitted by Mr. Desai that the said Judgment being a subsequent decision to the decision on which respondents have relied on hence it should be given weight and thereby also in the interest of justice the delay of 48 days in filing revision applications in the abovestated group matters be condoned.
9. It is true that in the matter of Ajit Singh (supra) the Supreme Court has observed vide para 6 that (at page 295 (of Cri LJ)):
party is entitled to writ until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation.
10. On the above stated observations the Supreme Court has taken strict view that if the delay prior to expiry of prescribed period of limitation could not be explained satisfactorily it cannot be condoned; even if it has occurred on account of departmental procedure of the Govt. However, in the subsequent Judgment in the matter of Spl. Tehsildar, Land Acquisition, Kerala (supra) the Supreme Court has taken a rational approach and has observed as under (Para 2 of AIR) :
It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain day to day ¦delay. The transaction of the business of the Government being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instancesult is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the Court and in matters of Limitation Act made no distinction between the State and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice. It would result in public mischief by skilful management of delay in the process of filing the appeal. The approach of the Court would be pragmatic but not pedantic. Under those circumstances, the Subordinate Judge has rightly adopted correct approach and had condoned the delay without insisting upon explaining every day's delay in filing the review application in the light of the law laid down by this Court. The High Court was not right in setting aside the order. Delay was rightly condoned.
11. In overall consideration of the facts and circumstances apparent from the record in the context of rival submissions and in view of the observations made by the Supreme Court in subsequent decision in the matter of Spl. Tehsildar Land Acquisition, Kerala (supra) being rational and of practical utility in the context of present day prevalent lethargy in the Government Department; and Public Undertakings, it is necessary to take rational and practical approach in the interest of substantial justice. Hence following the dictum of the said case in the instant cases I hold that delay of 48 days in filing Revision Applications is required to be condoned.
12. On the above stated discussion all these applications are allowed and delay of 48 days caused in preferring each of the Revision Application is hereby condoned and Rule is made absolute accordingly in each Application. No costs.