Himachal Pradesh High Court
Prittam Chand vs State Of Himachal Pradesh & Anr on 16 May, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.263 of 2019 Date of Decision: 16.05.2023 .
_______________________________________________________ Prittam Chand .......Petitioner Versus State of Himachal Pradesh & Anr. ... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 For the Petitioner: Mr. Virender Singh Rathour, Advocate.
For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar
and Mr. B.C.Verma, Additional
Advocate Generals with Mr. Rahul
Thakur, Mr. Ravi Chauhan and Ms.
r Avni Kochhar Mehta, Deputy
Advocate Generals, for the
respondent-State.
Ms. Seema Azad, Advocate vice Mr.
Ashok Kumar Thakur, Advocate, for
respondent No.2.
_______________________________________________________ Sandeep Sharma, Judge(oral):
Instant Criminal Revision petition filed under Section 397 (1) read with Section 401 of the Code of Criminal Procedure, lays challenge to order dated 15.11.2018 passed by learned Additional Sessions Judge (II), Kangra at Dharamshala, District Kangra, H.P., in Application No.31-K/14/11, whereby an application under Section 5 of the Limitation Act, having been filed by the applicant-petitioner for condonation of delay in filing the criminal appeal against the judgment 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 18/05/2023 20:30:32 :::CIS 2
of conviction and order of sentence recorded by trial Court, came to be dismissed.
2. Precisely, the facts of the case, as emerge from the .
record are that on the basis of the complaint made by the petitioner-
complainant, FIR Ex.PW6/A came to be lodged against the respondent under Sections 323, 325, 341 of IPC. On the basis of charge sheet filed by police against the respondent-accused, trial Court proceeded with the trial and vide judgment dated 30.10.2010 acquitted the accused of the charges framed against him under Sections 323, 325, 341 of IPC. After inordinate delay of one year, applicant filed an appeal against the judgment of conviction and order of sentence recorded by trial Court, but since same was barred by limitation, he also preferred an application under Section 5 of the Limitation Act, praying therein for condonation of delay. Since, no plausible explanation came to be rendered on record qua delay in maintaining the accompanying appeal, learned Additional Sessions Judge(II), Kangra at Dharamshala dismissed the application, as a result of which, appeal intended to be filed by applicant against the judgment of acquittal recorded by trial Court also came to be rejected.
In the aforesaid background, appellant has approached this Court in the instant proceedings, praying therein to set-aside aforesaid order.
::: Downloaded on - 18/05/2023 20:30:32 :::CIS 33. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in the order impugned in the instant proceedings, this Court finds no .
illegality and infirmity in the same and as such, no interference is called for.
4. Mr. Virender Singh Rathour, learned counsel representing the petitioner, vehemently argued that plausible explanation qua delay in maintaining accompanying appeal was rendered on record and as such, Court below ought not have rejected the application. However, this Court finds that applicant claiming himself to be in government service stated before the Court below through application under Section 5 of the limitation Act that on account of his pre-occupation in government service, he was unable to file the appeal. Though, aforesaid plea/ground taken by the petitioner-applicant otherwise could not be a ground for condonation of delay, but even otherwise, aforesaid plea set up by the petitioner never came to be proved in accordance with law. Application filed under Section 5 of the Limitation Act reveals that applicant claimed that due to his employment/ pre-occupation and exigencies of service, he could not know about the fate of the case till July 2011, but there is no mention that what type of exigency of service was there for the ::: Downloaded on - 18/05/2023 20:30:32 :::CIS 4 applicant which prevented him from preferring appeal within a prescribed period of limitation.
5. Pre-occupation, if any, in service or other work cannot be .
a ground to condone the delay, rather applicant being fully educated person is/was excepted to be vigilant about the proceedings initiated at his behest. As per applicant, he came to know about passing of judgment of acquittal in July, 2011and thereafter, he applied for the copy of judgment on 22.7.2011. Though copy was prepared on 21.9.2011, but for the reasons best known to him, he was unable to obtain the copy from copying agency till 10.10.2011 and thereafter he preferred appeal on 22.11.2011, there is no explanation that what made applicant to wait for one month after date of his having received certified copy of judgment passed by trial Court on 10.10.2011.
6. No doubt, Hon'ble Apex Court as well as this Court in catena of the cases have repeatedly held that expression "sufficient cause" in section 5 of the limitation Act is required to be given liberal construction, so as to advance substantial justice, especially where gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay. However, in the present case, applicant has not been able to make out a case that on account of justifiable reasons, which were completely beyond his control, he was unable to file the appeal.
::: Downloaded on - 18/05/2023 20:30:32 :::CIS 57. The Hon'ble Apex Court in case titled as State of Uttar Pradesh and others vs. Arvind Kumar Srivastava and others, 2014 AIR SCW 6519, held that relief cannot be extended to the .
persons, who have approached the Court after long delay, that too, who are fence-sitters. It is apt to reproduce para 24 of the judgment herein:
"24. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above."
8. Even Division Bench of this Court, while placing reliance upon the aforesaid judgments passed by Hon'ble Apex Court, has held in LPA No.604 of 2011, titled Karan Singh Pathania vs. State of H.P. and Others that "fencer cannot be held entitled to any relief"
9. In I. Chuba Jamir & Ors. versus State of Nagaland & Ors., reported in 2009 AIR SCW 5162, the Apex Court has held that the inordinate delay is a very valid and important consideration.
It is apt to reproduce para 17 of the judgment herein:
::: Downloaded on - 18/05/2023 20:30:32 :::CIS 6"17. On a careful consideration of the materials on record and the submissions made by Mr. Goswami we are unable to accept the claims of the appellants-writ petitioners. In our view the inordinate delay of 7 or 8 years by the appellants-writ petitioners in approaching the High Court was a very valid and important consideration. This aspect of the matter was also brought to the .
notice of the Single Judge but he proceeded with the matter without saying anything on that issue, one way or the other. It was, therefore, perfectly open to the Division Bench to take into consideration the conduct of the appellants-writ petitioners and the consequences, apart from the legality and validity, of the reliefs granted to them by the learned single Judge."
10. In Banda Development Authority, Banda vs. Moti Lal Agarwl and Ors., 2011 AIR SCW 2835, similar principle has enunciated by Hon'ble Apex Court, wherein it has been held as under:
"15. In our view, even if the objection of delay and laches had not been raised in the affidavits filed on behalf of the BDA and the State Government, the High Court was duty bound to take cognizance of the long time gap of 9 years between the issue of declaration under Section 6(1) and filing of the writ petition and declined relief to respondent No.1 on the ground that he was guilty of laches because the acquired land had been utilized for implementing the residential scheme and third party rights had been created. The unexplained delay of about six years between the passing of award and filing of writ petition was also sufficient for refusing to entertain the prayer made in the writ petition.
xxx xxxx xxx
25. In this case, the acquired land was utilized for implementing Tulsi Nagar Residential Scheme inasmuch as after carrying out necessary development i.e. construction of roads, laying electricity, water and sewer lines etc. the BDA carved out plots, constructed flats for economically weaker sections and lower income group, invited applications for allotment of the plots and flats from general as well as reserved categories and allotted the same to eligible persons. In the process, the BDA not only incurred huge expenditure but also created third party rights. In this scenario, the delay of nine years from the date of publication of the declaration issued under Section 6(1) and almost six years from the date of passing of award should have been treated by the High Court as more than sufficient for denying equitable relief to respondent No.1."::: Downloaded on - 18/05/2023 20:30:32 :::CIS 7
11. Recently, Hon'ble Apex Court in Union of India and others versus Chaman Lal, (2018) 5 Supreme Court Cases 798, has held as under:-
.
"9. As far back as in P.S. Sadasivaswamy vs. The State of Tamil Nadu, (1975) 1 SCC 152, considering a claim for promotion belated by 14 years, this Court had observed that a period of six months or at the utmost a year would be reasonable time to approach a court against denial of promotion and that it would be a sound and wise exercise of discretion not to entertain such claims by persons who tried to unsettle the settled matters, which only clog the work of the court impeding it in considering genuine grievances within time in the following words :
"2..... A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year rof such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case here the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine.
Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal."
10. Mere repeated filing of representations could not be sufficient explanation for delay in approaching the Court for grant of relief, was considered in Gandhinagar Motor Transport Society vs. Kasbekar AIR 1954 Bom.202, by Chief Justice Chagla, observing as follows : (SCC Online Bom: AIR P.203, para
2).
"(2)...... Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy.::: Downloaded on - 18/05/2023 20:30:32 :::CIS 8
The remedy he pursued was extralegal or extra- judicial. Once the final decision of government is given, a representation is merely an appeal for mercy or indulgence, but it is not pursuing a remedy which the law gave to the petitioner..."
.
11. The appellant, in its counter affidavit before the High Court, had specifically taken the objection that the claim was highly belated, and that any direction for a retrospective consideration would have a destabilising effect in unsettling the settled position which would lead to complete chaos apart from other administrative consequences. The High Court failed to consider the objection. In Union of India vs. M.K. Sarkar, (2010) 2 SCC 59, this Court observed as follows:(SCC p.66, para 16).
"16. A court or tribunal, before directing 'consideration' of a claim or representation should examine whether the claim or representation is with reference to a 'live' issue or whether it is with reference to a 'dead' or 'stale' issue. If it is with reference to a 'dead' or 'stale' issue or dispute, the court/ tribunal should put an end to the matter and should not direct r consideration or reconsideration...."
12. In Dev Dutt (supra), the DPC was held on 16.12.1994. The appellant therein, aggrieved by his supersession moved the High Court with utmost expedition leading to the pronouncement by the Single Judge on 21.08.2001 and by the Division Bench on 26.11.2001. The appeal was instituted before this Court in the year 2002. If that were not sufficient to distinguish the case of the respondents, reference may also be made to the observations in paragraph 36 as follows: (SCC p.737).
"36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation."
13. The High Court erred in placing absolute reliance on Dev Dutt (supra) and Sukhdev (supra) without noticing the fact situation of the respondents. In Union of India and another vs. Bahadur Singh, (2006) (1) SCC 368, it was observed: (SCC p.373 para 9).
'9. The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance ::: Downloaded on - 18/05/2023 20:30:32 :::CIS 9 is placed. Observations of the courts are neither to be read as Euclid's theorem s nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, .
phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments...."
14. A subsequent pronouncement by this Court could not enthuse a fresh lease of life, or furnish a fresh cause of action to what was otherwise clearly a dead and stale claim. In State of Uttaranchal vs. Shiv Charan Singh Bhandari, (2013) 12 SCC 179, it was observed that SCC p.186, para
29).
"29.... Not for nothing, has it been said that everything may stop but not the time, for we are all slaves of time. There may not be any provision providing for limitation rbut a grievance relating to promotion cannot be given a new lease of life at any point of time."
15. The observations with regard to the modus operandi of the representation syndrome to revive what are clearly dead and stale claims as discussed in C.Jacob vs. Director of Geology and Mining, (2008) 10 SCC 115, and the caution to be exercised by the Court are also considered apposite in the facts of the present case.
16. In the facts and circumstances of the present case, any direction to consider retrospective promotion of the respondents at such a belated passage of time of over 17 to 20 years, would virtually bring a tsunami in the service resulting in administrative chaos quite apart from the financial implications for the government. The order of the High Court is therefore held to be unsustainable and is set aside."
12. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon'ble Supreme Court, this court finds no merit in the petition and accordingly, present ::: Downloaded on - 18/05/2023 20:30:32 :::CIS 10 petition is dismissed being devoid of any merits. Pending application(s), if any, also stand(s), disposed of accordingly.
.
(Sandeep Sharma),
Judge
May 16,2023
(shankar)
r to
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