Jammu & Kashmir High Court
State Of Jammu And Kashmir Through vs Mohd. Shabir on 3 March, 2021
Bench: Tashi Rabstan, Vinod Chatterji Koul
203
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
....
CONCR No. 62/2015
c/w SLA No. 76/2015
State of Jammu and Kashmir through ....Appellant(s)/Applicant(s)
Station House Officer, Police Station,
Kalakote, Rajouri
Through :- Mr. Bhanu Jasrotia, Government Advocate.
Versus
Mohd. Shabir ....Respondent(s)
Through :- None.
CORAM:
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
Tashi J:
1. The order of acquittal of the accused dated 28.03.2014 is sought to be challenged by the appellant-State in accompanied appeal. As the appeal has been filed after the expiry of period of limitation, application on hand has been filed seeking condonation of delay in its filing. The appellant has also filed an application seeking special leave of this Court to file the appeal against the acquittal. The application seeking condonation of delay is required to be considered and decided and in case sufficient cause is shown, only thereafter the application to grant leave to file appeal and Appeal would be taken up for consideration. The respondent was acquitted facing trial before the trial Court for the offence punishable under Section 302 RPC.2
CONCR No. 62/2015, SLA No. 76/2015
2. The brief case of the prosecution was that on 03.09.2021, one Mohd. Afzal lodged an oral report with Police Station Kalakote that on the said date at about 12.15 pm, he along with his brothers namely Mohd. Akram and Mohd. Iqbal were grazing the cattle in his field, when Mohd. Shabir, Fazal Hussain, Shaheen Akhter, who were having enmity with him regarding the land on spot, came there armed with 'Pathi' 'Tavvar', 'Lathi' and stone, and tried to pull away the cattle from the land and when he intervened the accused got enraged and attacked him and his brothers with intention to kill. He, however, managed to escape from the spot but the accused caused injuries to his brothers, namely, Mohd. Akram and Mohd. Iqbal. His brother, Mohd. Iqbal, died because of the injuries suffered in the attack. The charge-sheet was framed against the accused and during the investigation, involvement of Nasim Akhter and Mohd. Hussain was not established. The accused, Fazal Hussain, was found to be juvenile and challan against him was filed under the Juvenile Justice Act, 1997, and the challan was presented against accused Mohd. Shabir and Shaheen Akhter in the court of Chief Judicial Magistrate, Rajouri, whereas the accused, Shaheen Akhter alias Tasvir Begum, was also declared juvenile and the challan was directed to be produced separately against her in the court of Judicial Magistrate 1st Class, Kalakote, for trial under the Juvenile Justice Act, 1997. As such, only Mohd. Shabir was formally charge-sheeted by learned Sessions Judge, Rajouri. So, as per the case of the complainant, they were attacked by five persons, out of whom two were juvenile, and during investigation, the involvement of Nasim Akhter and Mohd. Hussain was not established.
3
CONCR No. 62/2015, SLA No. 76/2015
3. The main ground taken for seeking condonation of delay of 332 days in filing the application/appeal is that the time was taken for fulfilemen tof formalities of the State as the appeal could not have been filed without seeking sanction from the Department of Law and for obtaining such a sanction, the file has to pass through different departments/offices and it was because of procedural delay that the appeal could not be filed and in case the delay is not condoned, having regard to evidence produced before the Trial Court, the same will result in miscarriage of substantial justice.
4. The prosecution produced the evidence of as many as fifteen (15) witnesses and the trial Court after having considered the evidence produced, found that the prosecution has failed to prove the charge against the accused.
5. While considering the condonation of delay application, the merits of the case are also required to be taken into consideration, as it has been observed in number of judgments that substantial justice being paramount and pivotal and the technical consideration should not be given undue and uncalled for emphasis. There should be a liberal, pragmatic, justice oriented, non-pendantic approach while dealing with an application for condonation of delay, for, the courts are not supposed to legalize injustice but are obliged to remove injustice.
6. It is true that Courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the State, but while considering the application, the court should also find out as to whether there is any merit in the appeal filed by the State or not. 4
CONCR No. 62/2015, SLA No. 76/2015
7. In Pundlik Jalam Patil (dead) by LRs v. Executive Engineer, Jalgaon Medium Project and another, (2008) 17 SCC 448, it has been held by the Supreme Court that:
"29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation/ resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."
8. The Supreme Court in Office of The Chief Post Master General v. Living Media India Ltd., AIR 2012 SC 1506, has been held that:
"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 5 CONCR No. 62/2015, SLA No. 76/2015 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 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."
9. In Amalendu Kumar Bera v. State of West Bengal, (2013) 4 SCC 52, it has been held by the Supreme Court that:
"Merely because the Respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in absence of 'sufficient cause' delay shall not be condoned."
10. In Tukaram Kana Joshi v. M.I.D.C., AIR 2013 SC 565, the Supreme Court has observed that:
"The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case."
11. In the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, the Supreme Court made an observation as follows:
6
CONCR No. 62/2015, SLA No. 76/2015 "15. From the aforesaid authorities the principles that can broadly be culled out are:
i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines taking note of the present-day scenario. They are:
a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that 7 CONCR No. 62/2015, SLA No. 76/2015 adjudication of a lis on merits is seminal to justice dispensation system.
b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
d) The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
12. The trial court has recorded the findings, which are based on an elaborate appreciation of evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial Court is a reasonable view of the evidence on record and the findings recorded by the trial Court are not manifestly erroneous, contrary to the evidence on record or perverse. The Supreme Court in Ram Swaroop and others vs State of Rajasthan, (2002) 13 SCC 134; Vijay Kumar vs State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs State of Orissa, (2015) 11 SCC 124, has taken the same view as has been taken by the trial Court in the case.
13. The Hon'ble Supreme Court in SLP (Civil) Diary No(s).19846/2020 titled as Union of India Vs. Central Tibetan Schools Admin & Ors., decided on 04.02.2021, while dismissing it on account of delay observed as under:-
"We have repeatedly being counselling through our orders various Government departments, State Governments and other public authorities that they 8 CONCR No. 62/2015, SLA No. 76/2015 must learn to file appeals in time and set their house in order so far as the legal department is concerned, more so as technology assists them. This appears to be falling on deaf ears despite costs having been imposed in number of matters with the direction to recover it from the officers responsible for the delay as we are of the view that these officers must be made accountable. It has not had any salutary effect and that the present matter should have been brought up, really takes the cake! The aforesaid itself shows the casual manner in which the petitioner has approached this Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record. We have repeatedly discouraged State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the Statutes, as if the Limitation statute does not apply to them. In this behalf, suffice to refer to our judgment in the State of Madhya Pradesh & Ors. v. Bheru Lal [SLP [C] Diary No.9217/2020 decided on 15.10.2020] and The State of Odisha & Ors. v. Sunanda Mahakuda [SLP [C] Diary No. 22605/2020 decided on 11.01.2021].........................".
14. In the present case, there is delay of 332 days and the accused has been acquitted. He was facing charge under Section 302 and other offences. The evidence which was produced after having been appreciated by the trial Court was not found sufficient to hold the accused guilty and because of that he had been acquitted. As per prosecution case, the complainant-party had claimed that they were attacked by five persons and involvement of two persons was not established during investigation and two out of the rest of three, two were found to be juvenile and the trial proceeded before the trial Court against the respondent, was acquitted.
15. As per the report, while the complainant was in his field, the accused came there and attacked, inflicted injury on two brothers of the 9 CONCR No. 62/2015, SLA No. 76/2015 complainant, one of whom died because of the injury suffered by him. In the accused-party, two persons were juvenile and one major whereas in the complainant party there were three brothers.
16. For the reasons stated here-in-above, we do not find any merit in the application and as such the application seeking condonation of delay deserves to be rejected and accordingly, the same is dismissed. Resultantly, in light of dismissal of condonation of delay application, the application seeking special leave to appeal as well as the Criminal Acquittal Appeal shall also stand dismissed, being time barred.
(Vinod Chatterji Koul) (Tashi Rabstan)
Judge Judge
JAMMU
03.03.2021
Surinder
Whether the order is reportable? Yes/No
SURINDER KUMAR
2021.03.24 16:41
I attest to the accuracy and
integrity of this document