Madhya Pradesh High Court
State Of M.P. vs Manish Singh And Ors. on 24 April, 2006
Author: Brij Mohan Gupta
Bench: Brij Mohan Gupta
ORDER
1. Heard on I.A. No. 10194/05, an application for condonation of delay under Section 5 of the Limitation Act.
2. This petition filed by State for leave to appeal is barred by limitation of 92 days. The submission of the learned Counsel for the State is that judgment of acquittal was pronounced on 20-12-2004 and the application for obtaining certified copy was filed on 21-4-05. The certified copy was received on 26-4-05 and the Additional Public Prosecutor submitted proposal for filing appeal on 3-5-05 to District Magistrate, Morena and thereafter on 11-5-05 a proposal was forwarded to the Law Department by the District Magistrate Morena which was received in the Law Department on 17-5-05 and permission was granted on 27-5-05 by Law Deptt. Due to vacation in the High Court from 14-5-05 upto 19-6-05 the appeal was filed on 20-6-05. This application of the State is supported by the affidavit of Ashish Meshram, Sub-Divisional Officer Police, Jaura. Thereafter State has filed the affidavit of Rajiv Dandotiya, Additional Public Prosecutor, Morena in which it has been mentioned that as per the rules of M.P. Government and the directions of the Court, the copy of the judgment in Session Trial No. 282/00 was forwarded to the District Magistrate and the same was not forwarded to the Deputy Director, Distt. Morena nor was handed over to him. When letter was received about the filing of the appeal from the office of Advocate General, the matter was inquired and he forwarded his opinion on 3-5-05 to the District Magistrate, Morena. He has submitted its opinion when a direction was given to him. State has also filed another affidavit of Shri R.K. Kulhare, Deputy Secretary, Govt. of M.P., Ministry of Law and Legislative Department, Bhopal in which he has stated that the State Government or the Department of Law and Legislative has not issued any direction for obtaining the certified copy of the judgment by the Court. Law and Legislative Department vide their demi-official letter dated 12-12-83 has given direction to the District Magistrates and Public Prosecutors to submit the proposal about the filing of the appeal. He has also placed the copies of the memorandum dated 14-7-87, 15-11-96, 5-2-97, 18-3-97, 19-10-98 and 30-10-2004, in which directions have been issued to the District Magistrate, Public Prosecutors, Director General of Police, Secretary, Lokayukta, Principal Secretary/Secretary of all the Departments of Govt. of M.P. and to the office of Advocate General, regarding filing of appeals.
3. So far as the question of condonation of delay of this petition is concerned, it is true that after the judgment passed by the Trial Court on 20-12-04 the Additional Public Prosecutor applied for certified copy on 21-4-05, i.e., after the expiry period of appeal, Additional Public Prosecutor submitted its proposal for filing appeal on 3-5-05. We have found that there is no delay on behalf of the Law and Legislative Department in granting permission for filing appeal but certainly there is delay and laches on the part of the Additional Public Prosecutor in submitting opinion as well as on the part of District Magistrate in forwarding the matter for permission and not monitoring the matter properly. In fact, there was delay on the initial stage of Additional Public Prosecutor and District Magistrate. They both were knowing about the pronouncement of the judgment but did not care even to apply for certified copy of the judgment in time. Thus, there is delay and there is no satisfactory explanation on the part of these two authorities, therefore, prima facie the State has not made out any case for condonation of delay. If the State is following a defective procedure and officers are shirking their responsibility from one officer to another and not filing the petitions in time, the Courts are helpless and not obliged to condone the delay in every case. However, considering the judgment of the Supreme Court in the case of State of Haryana v. Chandra Mani and Ors. in which it has been held :
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 officer/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-- international 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 require adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from the perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay.
Though, there are laches on the part of the State but considering the decision in the aforesaid case of State of Haryana (supra), the application for condonation of delay is allowed and delay in filing appeal is condoned.
4. But at this stage, in the public interest as well as in the interest of the State it became necessary to issue necessary instructions to the State Authorities regarding obtaining certified copy or for correcting their procedure and to issue fresh circular in the light of the Rules and Orders (Criminal) as well as the provisions of Law Deptt. Manual, we have also perused the relevant rules and instructions issued by the Government. It is also a notorious fact that most of the petitions for leave to appeal are being filed with the application for condonation of delay. We have seen in every case the copy of the judgment being forwarded to District Magistrate thereafter District Magistrate again referring it to Public Prosecutor or Additional Public Prosecutor (Government Pleader or Additional Government Pleader) for opinion and thereafter they are furnishing their opinion and submitting it to the District Magistrate through Deputy Director, Prosecution. Thereafter, again matter being forwarded to the District Magistrate who is submitting its proposal to the Home Deptt. and Law Deptt. and this procedure which is being followed at present is responsible for causing delay in every case. Learned Counsel for the State submitted that their practical difficulty is that many a times the amount for obtaining certified copy is not available with them. According to the rules the free copy is being forwarded directly to the District Magistrate and Public Prosecutor or Additional Public Prosecutor can give opinion only after perusal of the judgment and that too after receiving the copy of judgment and this procedure is causing delay in filing appeals or petitions for leave to appeal. We have perused Rule 255 of the Rules and Orders (Criminal). As per Rule 255, as soon as practicable after the judgment is pronounced a copy of it free of charge should be sent--
(f) to the District Magistrate, in sessions trials and appeals.
According to this provision, the copy shall be forwarded to the District Magistrate by the Courts. We have also perused provisions of Law Department Manual, Rules 86-A, 86-B and Rule 91 inter alia provides as under :
86-A. Public Prosecutor's duty to report result.-- It shall be the duty of the Public Prosecutor and Additional Public Prosecutor to report immediately to the District Magistrate, the result of every criminal case conducted by him. A copy of the report shall be forwarded simultaneously to the District Superintendent of Police.
86-B. Further report when decision is adverse.-- Where in any criminal case the decision is adverse to the prosecution, the Public Prosecutor or the Additional Public Prosecutor in charge of the case shall, not later than seven days from the date of the order or judgment, submit to the District Magistrate a detailed report on the case, together with his opinion as to the advisability of filing of a revision or appeal and a draft of the grounds therefor if a revision or appeal is advised. A copy of the report shall be forwarded simultaneously to the District Superintendent of Police.
91. Procedure.-- Ordinarily the District Magistrate will propose the appeal. With his proposal he should send the records and a note of his own giving the facts of the case and stating where he thinks the Court was wrong. If he took the opinion of the Public Prosecutor or the District Superintendent of Police he should state or attach it separately.
5. According to the aforesaid Rules, though, it is the duty of the Public Prosecutors and Additional Public Prosecutors to report immediately to the District Magistrate about the result of the criminal case and if decision is adverse to the prosecution, the Public Prosecutor or the Additional Public Prosecutor in charge of the case shall, not later than seven days from the date of the order or judgment, submit to the District Magistrate a detailed report on the case, together with his opinion as to the advisability of filing a revision or appeal and a draft of the grounds therefor, if a revision or appeal is advised and it is also the procedure that ordinarily the District Magistrate will propose for filing the appeal. After perusal of the aforesaid provisions, it is clear that the PP or APP who is conducting the trial is not directly getting the copy of the judgment/order from the Court and therefore, in most of the matters delay is being caused in furnishing opinion and taking decision. Therefore, we are of the view that to cut short the delay in getting the copy of the order or judgments the correct approach would be that the copy of the order/judgment should be forwarded to District Magistrate through the Public Prosecutor or Additional Public Prosecutor, who has conducted the trial, so that he may forward the same to the District Magistrate along with his report, opinion and case file including necessary documents. We have seen that the State Government or Law Department are not caring to modify their procedure. Though the Law Department have issued various circulars but none of the circulars indicate that District Magistrate will authorise the Public Prosecutor or Additional Public Prosecutor (Govt. Advocate or Addl. Govt. Advocate) to obtain copy of the judgment on their behalf from Court. No responsibility has been cast on the Public Prosecutors or Additional Public Prosecutors (GPs or AGPs) to obtain certified copy quickly and to submit the report to the District Magistrate.
6. In view of the aforesaid background, we have no option but to issue the directions to the Home Department and Law Department to issue direction to the District Magistrates to authorise the Public Persecutors as well as to the Additional Public Prosecutors who have conducted the trial to obtain certified copy from the Court on behalf of the District Magistrate so that after obtaining certified copy they may submit their opinion and report to the District Magistrate in compliance of the provisions of Rule 86-B and thereafter, District Magistrate may also submit proposal for filing appeal as per Rule 91 of the Law Department Manual. Till such directions are issued, we direct that all the Sessions Judges and Additional Sessions Judges to forward the copy of the judgment of the sessions trials to the District Magistrate through Public Prosecutors as well as Additional Public Prosecutors (GPs and AGPs) who has conducted the trial in compliance of Rule 255 so that the Public Prosecutors and Additional Public Prosecutors (GPs and AGPs) in charge of the case may submit their report about the filing of appeal to the District Magistrate well in time i.e., not later than 7 days as prescribed in Rule 86-B. We also propose to put a rider on the District Magistrates that they will also submit their proposal within 15 days after receiving the copy of the judgment as well the opinion from the Public Prosecutors and Additional Public Prosecutors (GPs and AGPs) about the filing of appeal to the concerned authority. In our considered opinion, this slight modification in the procedure will not only be helpful in reducing the delay but will be workable easily and smoothly. A copy of this order be forwarded to the State Government including Home and Law and Legislative Department for necessary compliance in the matter. A copy of this order be placed before the Registrar General to forward it to all the Sessions Judges and Additional Sessions Judges for compliance.
M.Cr.C. be listed after 4 weeks for admission.