Allahabad High Court
Dharmveer vs State Of U.P. & Another on 4 July, 2018
Author: Vivek Kumar Singh
Bench: Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Approved For Reporting Court No. - 55 Case :- CRIMINAL REVISION No. - 3599 of 2016 Revisionist :- Dharmveer Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Sunil Kumar Dubey Counsel for Opposite Party :- G.A.,Rabindra Bahadur Singh Hon'ble Vivek Kumar Singh,J.
1. Heard Sri Sunil Kumar Dubey, learned counsel for the revisionist and Sri Rabindra Bahadur Singh, learned counsel for the opposite party no.2 and Sri Om Prakash Mishra, learned A.G.A. for the State-respondent.
2. The present revision is directed against the order dated 19.4.2014 passed by the Juvenile Justice Board, Agra in Case Crime No.249 of 2010, under Section 302 I.P.C., Police Station Kagaraol, District Agra as well as the order dated 4.8.2016 passed by Additional Sessions Judge, Court No.16, District Agra in Criminal Misc. Application No.312 of 2015, under Section 5 of the Limitation Act filed in support of Criminal Appeal No.nil of 2015 (Dharmveer Vs. State of U.P. and others), whereby the criminal appeal filed by the revisionist-herein has been dismissed as being barred by limitation, consequent upon the rejection of the application preferred by the appellant under Section 5 of the Limitation Act.
3. The brief facts of the case are that the first information report was registered against the revisionist and four other co-accused persons on 15.10.2010 as Case Crime No.249 of 2010, under Sections 147, 148, 307, 302 and 504 I.P.C., Police Station Kagaraol, District Agra, thereafter, inquest was conducted and the inquest report was prepared on 14.10.2010, thereafter, post-mortem report was prepared on 15.10.2010 in which one gunshot injury was found on the body of the deceased.
4. That up to parcha no. 5 dated 11.3.2010, investigation and remand was under section 304A, 201 I.P.C., thereafter the I.O. converted the case under section 302 I.P.C and after arrest in the aforesaid case an application for declaration of juvenile was moved by the mother of the revisionist namely Smt. Pooran Devi before the Juvenile Justice Board Agra on the ground that in the High-school mark-sheet date of birth of the revisionist is mentioned as 10.7.1994 and the alleged incident took place on 15.10.2010 and as such at the time of alleged incident the revisionist was minor and aged about 16 years. A photo copy of the High-school mark-sheet has been annexed as annexure no. 3 to this affidavit - 3 to the affidavit accompanying this revision.
5. That the learned Juvenile Justice Board, Agra by the order dated 20.7.2011 allowed the application of the revisionist and declared him juvenile and by the same order an application for conducting the medical examination report of the revisionist moved by the complainant has been rejected, a true/certified copy of the order dated 20.7.2011 passed by learned Juvenile Justice Board, Agra has been annexed as annexure no. 4 to this affidavit accompanying this revision .
6. That after declaration of the Juvenile bail application was moved on behalf of the revisionist before the learned Juvenile Justice Board Agra, and the same has been rejected by the Board vide order dated 9.8.2011, thereafter against the order dated 9.8.2011 the revisionist preferred an appeal before the learned Session Judge, Agra and the same has also been rejected by order dated 15.9.2011 by learned Additional Sessions Judge, Court no. 5 Agra.
7. That against the order dated 9.8.2011 passed by Juvenile Justice Board Agra, as well as order dated 15.9.2011 revisionist preferred criminal revision before this Hon'ble Court with criminal revision no.4427 of 2011 and after inviting the counter affidavit the revision of the revisionist has been allowed by this Hon'ble Court and the order dated 9.8.2011 as well as order dated 15.9.2011 has been set aside and the revisionist has been released on bail, a copy of the order dated 24.11.2011 is annexed as annexure no.5 to this affidavit accompanying this revision.
8. That in the meantime against the order dated 20.7.2011 passed by Juvenile Justice Board, Agra, the opposite party no. 2 also preferred an appeal before the learned Session Judge, Agra with criminal appeal no.225 of 2011 and by the order dated 14.5.2013 the learned Additional Sessions Judge partly allowed the aforesaid appeal and directed the Juvenile Justice Board, Agra to pass an appropriate order after appreciating the evidence.
9. That in pursuance of the remand order dated 14.5.2013 the Juvenile Justice Board, Agra summoned the Principal of Primary School Kagaraol, District Agra and after examining the Principal as well as documentary evidence the learned Juvenile Justice Board, Agra by the order dated 19.4.2014 declared the revisionist as major and remitted the record to the learned Sessions Court, Agra.
10. That against the order dated 19.4.2014 the revisionist preferred an appeal before the before the learned Sessions Judge, Agra with Criminal Appeal No.nil of 2015 alongwith a delay condonation application under Section 5 of the Limitation Act.
11. The application filed under Section 5 of the Limitation Act was opposed by the opposite party and it was argued on behalf of the opposite party that the ground taken by the appellant in the application to seek condonation of delay is false & fabricated.
12. The order dated 4.8.2016 passed by the learned appellate Court, whereby the misc application no.312 of 2015, under Section 5 of the Limitation Act has been rejected, relevant part of said order reads as under:-
"पत्रावली आदेश हेतु पेश हुयी। प्रार्थी द्वारा 5 मियाद अधि० प्रस्तुत कर किशोर न्याय बोर्ड द्वारा परित आदेश 19.04.14 के विरुद्ध जुबेनाइल अपील दाखिल करनें में हुए विलम्ब की क्षमा किये जानें की याचना इस आधार पर की गयी कि मु०अ०सं० 249/10 धारा 302 आई०पी०सी० में किशोर न्याय बोर्ड द्वारा दि० 20.07.11 को अभियुक्त धर्मवीर को नाबालिग घोषित किया गया था एवं बाद जमानत अभियुक्त धर्मवीर को उसकी मां संरक्षिका पूरन देवी के सुपुर्दगी में दिया गया। आदेश दि० 20.07.11 को अभियोगी मोहन सिंह द्वारा दाखिल अपील सत्र न्यायाधीश द्वारा दि० 14.05.13 को स्वीकार कर पत्रावली किशोर न्याय बोर्ड को रिमाण्ड किया गया। किशोर न्यायबोर्ड के समक्ष कार्यवायी में प्रार्थिया पूरन देवी द्वारा अपनें अधिवक्ता रनवीर सिंह व रामपाल राना में उपस्थित नहीं रहे। किशोर न्यायालय द्वारा दि० 19.04.14 को धर्मवीर की अधिवक्ता से पत्रावली का निरीक्षण कराया तब ..... 19.04.14 को जानकारी हुयी। दि०02.07.15 को आदेश की सत्यप्रतिलिपि प्राप्त हुयी। प्रार्थीया के बीमार पड़नें के कारण समय से अपील दाखिल नहीं हो सका। तब दि० 06.10.14 को अपील दाखिल किया गया।"
***************** ************** ************ उपरोक्त विवेचना से यह पूर्णतया स्पष्ट रूप से दर्शित होता है कि अभियुक्त धर्मवीर व उसकी संरक्षक प्रार्थी को प्रश्नगत आदेश 19.04.14 की पूर्ण रूप से जानकारी उसी तिथि को हो गयी जिस तिथि को आदेश पारित किया गया। प्रार्थी द्वारा जानबूझकर विलम्ब कारित किया गया। विलम्ब के लिये दर्शित कारण ऐसे नहीं थे जो प्रार्थी के नियंत्रण के बाहर थे। स्वेच्छया जानते विलंब किसी भी रूप में विधि में क्षम्य नहीं है। प्रार्थी द्वारा दाखिल विधि व्यवस्था में यह दाखिल किया गया कि विलंब क्षमा करनें के लिये अति दण्डनयी दृष्टिकोण नहीं अपनाना चाहिये। प्रस्तुत मामले को विलंब के लिए वर्णित कारण पर उदारता पूर्वक विचार करनें पर भी वह स्वेच्छया जानते एवं तथ्यों को छुपाया जाना व न्यायिक प्रक्रिया के दुरूपयोग के रूप में सामनें आता है। विधि उसकी सहायता करती है जो स्वच्छ हाथों से न्यायालय के समक्ष आता है एवं अपनें अधिकारो के प्रति जागरूक रहता है।
उपरोक्त विवेचना से प्रार्थी द्वारा विलम्ब के लिये बाताय गया कारण युक्तियुक्त व पर्याप्त दर्शित नहीं होता। तदनुसार प्रा० पत्र 35 धारा 5 लिमिटेशन एक्ट खारिज किया जाता है।"
13. Ultimately, by way of impugned order Appellate Court declined the application filed under Section 5 of the Limitation Act moved by the rvisionist-herein and held that the revisionist-herein had not disclosed sufficient cause to seek condonation of delay. Consequently, the appeal was dismissed as being barred by limitation.
14. I have heard learned counsel for the parties and have gone through the material available on record.
15. The submission of counsel for the revisionist is that, firstly, the approach of the First Appellate Court in dealing with the application seeking condonation of delay was not correct, and not in accordance with the view expressed by the Supreme Court in catena of decisions. He submits that unless the delay is intentional or deliberately caused and is with a view to gain undue advantage, the same should be condoned. He further submits that the period of delay itself was also not enormous. In support of his submission, counsel for the appellant has placed reliance on the following decisions:-
a. Rafiq v. Munshilal, AIR 1981 SC 1400;
b. Collector, Land Acquisition, Anantnag v. Katiji, AIR 1987 SC 1353;
c. Municipal Corporation, Gwalior v. Ramcharan (D) by LRs & Ors., AIR 2003 SC 2164;
d. State thru CBI v. R.P. Tiwari, 2010 IX AD (Delhi) 722;
e. S. Ganesharaju (Dead) Through LRs Vs. Narasamma (Dead) Through LRs and Others, (2013) 11 SCC 341;
16. On the other hand, learned counsel for the opposite party no.2 submits that the revisionist has failed to explain the delay in filing the appeal. Learned counsel for the opposite party no.2 relied upon a judgment of the Supreme Court in Balwant Singh (Dead) v. Jagdish Singh & Ors., (2010) 8 SCC 685 in support of his submission that liberal construction of the expression "sufficient cause" pre-supposes that there is no negligence or inaction on the part of the applicant. He submits that in the present case, there is gross negligence on the part of the revisionist.
17. A perusal of the impugned order shows that the First Appellate Court proceeded on the basis that the application moved under Section 5 of the Limitation Act by the revisionist before the First Appellate Court did not reflect sufficient facts and lack details. The period of illness was not specified with certainty, and each days delay has not been explained reasonably by the appellant.
18. The Hon'ble Apex Court and this Court have time and again held that the expression "sufficient cause" in Section 5 of the Limitation Act should receive liberal construction.
19. In Katiji (supra), the Supreme Court observed that the legislature had conferred the power to condone delay by enacting Section 5 of the Limitation Act in order to enable the Courts to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose of the existence of the institution of courts. The Supreme Court observed that:-
"It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
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.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
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."
20. A similar view was taken by the Supreme Court in Ramcharan (supra). In this case, there was a delay of 39 days in filing the second appeal. The explanation for the said delay was the failure of the counsel to appear on account of some confusion in noting the date of hearing and belated knowledge of the judgment and decree on the part of the counsel. The Supreme Court, inter alia, observed that the advocate of the applicant had nothing to gain by remaining absent at the time of hearing of the first appeal or by assigning a false cause for non-appearance at the time of hearing. Valuable rights of the parties in an immovable property were involved. Thus, the Supreme Court held that the High Court ought to have taken a liberal, and not a rigid and too technical view of the issue before it and should have condoned the delay in filing the appeal and concentrated on examining whether the appeal raised any substantial question of law worth being heard by the court.
21. In R.P. Tiwari (supra), this Court had taken the same view and observed: -
"6. At the same time, it has been consistently held in a number of judicial pronouncements that the expression "sufficient cause" in Section 5 of the Limitation Act, must receive liberal construction so as to advance substantial justice and where there are no allegations of gross negligence, absence of bonafides, or intentional delay/inaction attributable to a party, generally, delays in preferring appeals, particularly when they are filed by the Government, are required to be condoned in the interest of justice, as also in public interest. (Refer: G. Ramegowda Major v. The Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897)".
22. The Hon'ble Apex Court in S. Ganesharaju (supra) held that the expression "sufficient cause" as appearing in section of the Limitation Act has to be given a liberal construction so as to advance substantial justice. Unless the respondents are able to show malafides in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay is tilted more towards condoning the delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by. The Supreme Court held that the rule of limitation is not meant to destroy or foreclose the rights of parties. They are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly. In para 14 of the said decision, the Supreme Court observed:-
14. We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. In the instant case, we find that appellants have shown sufficient cause seeking condonation of delay and same has been explained satisfactorily."
23. I may take note of another decision of the Supreme Court in Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, (2002) 3 SCC 195. In this decision, the Supreme Court observed:
"12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.
13. In view of the foregoing discussions, we are clearly of the opinion that on the facts of present case, Division Bench of the High Court was not justified in upholding order passed by the learned Single Judge whereby prayers for condonation of delay and setting aside abatement were refused and accordingly the delay in filing the petition for setting aside abatement is condoned, abatement is set aside and prayer for substitution is granted." (Emphasis Supplied) In this decision, the Supreme Court cited several earlier decisions, including the decision in N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 SCC 123. In that case, the application filed to seek setting aside of the ex- parte decree was delayed by 883 days. The Supreme Court in the said decision observed as follows:
"8. The appellant"s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.
9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10 x x x x x x x x x The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
24. In N. Balakrishnan (supra), the Supreme Court further observed:
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. 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 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.
25. Refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.
26. In the present case, a perusal of the application filed by the revisionist to seek condonation of delay before the First Appellate Court shows that on account of the illness of the mother of the revisionist who was pursuing the case, delay caused. Certainly, it cannot be said that the delay was enormous.
27. The opposite party no.2 really has suffered no prejudice, and for the slight inconvenience by the respondent on account of the delay in filing the first appeal, the opposite party no.2 could have been compensated by way of costs. The dismissal of the application under Section 5 of the Limitation Act preferred by the appellant has meant that his valuable statutory right of first appeal has been denied to him. As observed by the Supreme Court, the trend of the decisions has been towards adopting a liberal approach in the matter of exercise of discretion for condonation of delay and of granting opportunity to the parties to litigate their rights on merits rather than on mere technicalities.
28. In view of the above, present revision is partly allowed. The impugned order dated 4.8.2016 passed by Additional Sessions Judge, Court No.16, District Agra in Criminal Misc. Application No.312 of 2015, under Section 5 of the Limitation Act filed in support of Criminal Appeal No.nil of 2015 (Dharmveer Vs. State of U.P. and others), whereby the criminal appeal filed by the revisionist-herein has been dismissed as being barred by limitation, consequent upon the rejection of the application preferred by the appellant under Section 5 of the Limitation Act is hereby set aside and delay, if any, in filing the appeal before the concerned Court below is hereby condoned with a further direction to hear the appeal on its merits.
29. The opposite party no.2 shall be compensated with costs on account of the delay in filing the first appeal to the tune of Rs.5,000/-. The costs shall be paid by the revisionist either when she/he appears before the First Appellate Court, or on the subsequent date as may be fixed by the First Appellate Court.
Order Date :- 4.7.2018 Dev/-