Gujarat High Court
State Of Gujarat vs Ramesh Laxmanbhai Chauhan on 4 May, 1994
Equivalent citations: (1994)2GLR1577
Author: N.N. Mathur
Bench: N.N. Mathur
JUDGMENT
K.J. Vaidya, J
1. "In a delay condonation application, filed in any appeal or application, under Section 5 of the Limitation Act, 1963, whether it is always incumbent upon the Court to mechanically issue notice to the other side before deciding the same, one way or the other, or in a given case, depending upon the gravity and seriousness of the offence and the question of "substantial justice" involved, applying the test of exercising discretion by a right-minded man, the delay in question can be condoned even without issuing notice to the respondents?" This, in short, is the question of quite great importance which has been taken up for consideration in the back-drop and context of the following facts:
2. To briefly narrate few relevant facts as far as they are necessary to decide the question raised above, it may be stated that the State of Gujarat has filed an appeal for enhancement of sentence against the impugned judgment and order of sentence dated 18-7-1992, rendered in Sessions Case No. 79 of 1991, wherein respondent Ramesh L. Chauhan who came to be tried for the alleged offences punishable under Sections 376, 323, 506 of the I.P.C., was at the end of trial ordered to be convicted for the same and sentenced to rigorous imprisonment for 2 years and fine of Rs. 200/-, etc., etc., as stated in detail in the impugned cider. While screening and processing the appeal papers, according to the office objection, the same ought to have been filed on or before 19-9-1992 as the period of limitation provided for the enhancement of sentence is 60 days from the date of impugned order of sentence. Accordingly, the office raised objection that since the appeal was filed en 1-10-1992, there was a clear delay of 11 days. It is under this circumstances that the State of Gujarat has filed the present Misc. Criminal Application for condonation of delay. While explaining the alleged delay of 11 days, it is the case of the petitioner-State that the impugned judgment and order of conviction and sentence was passed on 18-7-1992 and the certified copy of the same was applied for on 1-8-1992. This was ready for delivery on 4-8-1992 and was ultimately collected on 5-8-1992. Thereafter, the learned P.P. vide his letter dated 17-8-1992 addressed to the District Magistrate, Sabarkantha endorsing also a copy of the same to the Secretary, Legal Department, Gandhinagar forwarded the proposal for filing appeal for enhancement of sentence. A copy of the said proposal was received by the Registry of the Legal Department on 24-8-1992. It further appears that the Registry by mistake sent the said proposal to the Civil Branch which in turn ultimately directed the same to the Criminal Branch, which was received by it on 26-9-1992. Immediately thereafter, the concerned Assistant placed the said proposal before the Deputy Secretary on 29-9-1992 for appropriate order, who in his turn on the very day took decision to file appeal for the enhancement of sentence. The resolution to the said effect was thereafter immediately forwarded to the learned P.P., High Court of Gujarat, Ahmedabad which was received in his Office in the late evening of 30-9-1992 and the Office in its turn on the very next day, i.e., 1-10-1992, preferred the present appeal for enhancement of sentence which, as stated above, suffers from delay of 11 days.
3. Now, at this admission stage, the important question which has arisen for consideration is - "Whether it is always necessary to issue rule to the other side before condoning the delay of 11 days in filing the present appeal for enhancement of sentence or that to put it otherway, this Court without issuing the rule can as well straightway, scrutinising the facts and circumstances occasioning delay in question, liberally construing the same so as to advance the substantial cause of justice condone the delay? Incidentally, the very same question arose for consideration before this Court, wherein one of us (K.J. Vaidya, J.) in group of two applications, the same being Misc. Criminal Applications Nos. 237 and 238 of 1994, decided on 19-4-1994 was a party, which now rests concluded holding that in cases where there is any delay in filing of appeal or application, it is indeed not necessary for this Court to always issue notice to the other side before either condoning or not condoning the delay, and that it can certainly exercise its judicial discretion one way or the other, on the basis of facts and circumstances of that particular case and settled legal position, by applying three basic tests, such as: (i) Whether on scrutinising facts and circumstances occasioning delay and construing the same liberally "sufficient cause" for condoning the delay was made out or not? (ii) Whether bearing in mind the question of "substantial justice" involved, delay howsoever gross, deserves to be condoned in the overall interest of justice? or to put it otherway, (iii) Whether not condoning the delay would in way seriously undermine the cause of justice, resulting into miscarriage of justice? In this application also, since we have decided to broadly follow the very same view and the reasoning as given in Misc. Criminal Applications Nos. 237 and 238 of 1994 (supra), we for the sake of convenience reproduce the same in verbatim from para 4 onwards of the said judgment, which reads as under:
4. Now ordinarily when such an application for delay condonation comes up for admission, 'Rule' is issued to enable the respondent to appear and say whatever he wants to say for not condoning the delay but what is done ordinarily does not necessarily mean that in all cases, at all times irrespective of the facts and circumstances of that particular case, this Court should blindly and mechanically tread the same beaten path/practice of issuing 'Rule', by condoning the delay, and in that view of the matter, it is not always necessary to issue Rule to the other side and that the Court can taking into consideration the facts and circumstances occasioning delay and the overall cause of justice involved, condone the delay. As a matter of fact, the decisions of High Courts and the Supreme Court on the point are clearly to the effect that whenever there is any delay, be it for few days or gross in filing appeal or application where 'substantial justice' is found to be pitted against 'technical justice', the same is ordinarily and as a matter of course, in over all interest of justice is required to be condoned. In this regard, it is also directed by the Supreme Court that while interpreting/deciding whether in particular facts and circumstances occasioning delay, 'sufficient cause' is made out or not, the same should be liberally construed so as to enhance the cause of 'substantial justice'. This is so with a view to see that as far as possible the cases should be decided on merits, rather throwing them off on the technical grounds of delay. In this view of the matter, to mechanically issue notice to the other side, when the delay is ultimately required to be condoned, the same is nothing but an empty formality and/or an idle mechanical exercise of discretion. Not only that but by entering into such useless formality in all and sundry cases by issuing notice to the respondents] while condoning the delay, the same unnecessarily sets up the chain of serious hardships and inconvenience at all levels of judicial administration ! To narrate some such few hardships and inconvenience - when the notice is issued to the other side to explain as to why the delay in question should not be condoned - (i) first of all, clerk of this Court will be required to enter the said order in a register maintained for the purpose, (ii) Thereafter, second clerk will be required to prepare notice, (iii) Thereafter, third clerk in the process is required to enter the same in the Outward Register maintained for the purpose and (iv) Thereafter, peon will have to prepare envelope and then to go to Post Office to despatch the same ! ! This very exercise in turn gets repeated at the other receiving end also, viz., at the office of the District & Sessions Judge. There also once again, (i) the inward clerk is required to enter this notice into the Inward Register, (ii) thereafter, forward the same to the concerned Police Station, (iii) who in turn once again has to enter such notice info the Process Register maintained for the purpose, (iv) thereafter, the process serving officer is required to contact the concerned respondent, (v) once again after service or non-service of the said notice, the same has to cycle back to the Court issuing such notices to place the same before the concerned Bench taking up the matter ! ! This dead, mechanical and routine process of cycle and cycling back of issuing notices go on and on consuming the precious public time, energy and money too. Not only that but because of such mechanical exercise of the discretion, delay condone applications running into hundreds and thousands with limited number of Courts unnecessarily puts back the clock of disposal with the mounting stream of work and the back-log, sometimes going beyond control ! Under such circumstances, it is indeed too difficult to imagine what precious time it consumes of the Court and its ministerial staff, and as a resultant consequences thereof, how many matters on merits would unnecessarily be further delayed for final hearing wherein in given cases what ought we know some innocent convict prisoners might be languishing in jail for no fault of them and some precious pressing constitutional and civil rights of the citizen will remain unattended. Not only this but if we further bear in mind altogether picture of the entire country, millions and millions of such delay condonation applications on the one hand unnecessarily consumes precious public time, money and energy of the administration of justice and on the other hand, obstruct and delay the final hearing of the cases wherein convict prisoners/litigants clamouring for the 'speedy justice' just stand frustrated with a feeling of 'cry in wilderness', waiting indefinitely for their turn of hearing their cases for immediate justice. Further still, when round the country there is a great hue and cry of 'justice delayed' and accordingly 'justice denied' eroding the very spirit/promise of speedy justice given in Article 21 of the Constitution of India, what indeed can there be any justification of mechanically issuing notice in delay condonation application when the same can be properly taken care of by the Court in the light of settled guidelines given by Supreme Court and other High Courts of the nation. It is under these circumstances that this Bench feels that to mechanically issue 'Rule' in all and sundry delay condonation application is to further adversely affect and delay number of such old and good cases only because there is some delay, and, technically believing that the same cannot be condoned without hearing the otherside. This Court also further believes that taking into consideration the discussions made hereinabove, before deciding the delay condonation application, to issue 'Rule' in all and sundry matters, is nothing but to put common sense in cold storage. Further, to condone the delay is always a matter of judicial discretion and the Court is required to exercise the same quite judiciously on settled legal position. Not only that but the exercise of such a discretion is primarily a matter between the Court and the concerned defaulting party applying for delay condonation. In fact, while considering the delay condonation application, the Court is required to keep in fore-front before its mental eyes the following four guiding principles: Firstly, whether certified copy of the impugned judgment and order was applied for immediately or in any case before the expiry of the stipulated period of limitation. In case certified copy is applied after the expiry of the limitation, then in that case, in view of Supreme Court decision rendered in case of Ajitsinh Thakorsinh & Am. v. State of Gujarat, such delay condonation applications should not be taken into consideration and are required to be dismissed. Secondly, whether prima facie the 'sufficient cause' is made out or not? Thirdly, while interpreting 'sufficient cause' the facts constituting the same should be liberally constructed ! Fourthly, whether by not condoning the delay any 'substantial cause of justice' was likely to suffer irreparable damage resulting into miscarriage of justice on the pure and simple ground of technicality of the delay in filing the matter ! Thus, bearing in mind the aforesaid four guiding principles, the Court after duly scrutinising the grounds of delay in filing the appeal, application or revision may or may not condone the delay. And accordingly, in case if the Court condones the delay, the other side cannot be permitted to ventilate the grievance that without hearing him, the Court has no powers to condone the delay. This is so for three very simple reasons, viz, (i) to condone or not to condone the delay is a matter entirely within the discretion of the Court, (ii) further, how to exercise such judicial discretion has by now well settled by catena of decisions of various High Courts and the Supreme Court, and (iii) whether to exercise discretion by condoning the delay or not is a matter entirely between the defaulting party and the Court. And in this view of the matter, other side has no right to dictate the Court in this regard. The only thing which the Court is required to do is while deciding the delay condonation application, it must bear the aforesaid guiding principles in mind.
5. In fact, Supreme Court in one of its mile-stone judgments rendered in case of The Collector - Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., has made very pertinent and enlighting observations which support the overall view taken by this Court on the point of "sufficient cause". In para 3 of the said judgment, Mr. Justice M.P. Thakker, as he then was, has observed as under:
3 The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to 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 for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiable 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 principles as it is realised 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 legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact, experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal over and the inherited bureaucratic methodology imbued not-making file pushing, and passing - on the buck ethos, delay on its part is less difficult to understand though not difficult to approve. In any event, the State which represents the collective cause of the community does not deserve a litigant non grata status. The Courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits.
Following the aforesaid judgment, this Court (Coram: K.J. Vaidya, J.) in its decision rendered in case of State of Gujarat v. Mohanlal Vaiji, reported in 1993 (1) GLH 661 in para 7 has observed as under:
7. Now assuming for the sake of argument only that the State is an agency distinct from the Complainant - Food Inspector, and further since the present acquittal appeal is filed by it only, the period of limitation prescribed in law should be three months then even merely because there is some delay in filing the appeal because of certain none too difficult to appreciate and understand circumstances, namely the red-tapism, negligence arising out of some impersonal attitude or lack of efficiency, pressure of work or in a given case, some corruption, extra-influence, influence, reportism, etc., of the public servant for not expeditiously sending the proposal to the Legal Department, then even looking to the overall public interest involved in this case, viz., the prosecution against the respondent being under the Food Adulteration Act, a public welfare legislation in the large and absolute interest of the health of the people at large, the delay, if any, at all is required to be condoned beyond any manner of doubt. The Court while dealing and deciding the cases of socio-economic offences can never be permitted to set them at naught merely on the ground of some hyper-technicalities. As to do so is neither the law nor the justice nor the manner in which the Courts are expected to do the justice. Barring few exceptions, it is an open secret that by and large the Government administration does not feel the pulse of the people, it lacks the much needed public orientation, commitment to the public cause, etc. The hard facts and nacked truth, one may like it or not but it is often noticed in the body politics of every public administration and this aspect is required to be borne in mind. We come across number of such cases wherein despite its urgency and importance of the issues and problem involved touching upon the public causes they are dealt with by the administrative personnel in a manner as if they are dealing with some dry and died papers feeling no pulse or heart bites of public care, hopes, expirations, dreams, urges and prayers for relief and redressal contained in it. When such is the situation, in a die-hard bureaucratic set-up, except some few rays of hope, it will be too much to expect efficiency of the public administration. The question - "Can under such circumstances the 'public cause' be penalised and allowed to suffer became of some unavoidable delays caused by such indifferent, inefficient public servants"? or "Can the social piece of legislation be permitted to be frustrated at the hands of inefficient administration. It is under such circumstances that the pragmatic view of the problem is not taken then howsoever laudable object the particular Act may have, the same will not reach the intended goal as over and above the ordinary breakers of law, on its procedural path there are obstructive elements like inactive and inefficient public servants. It may also be observed that if the public servant has conducted himself inefficiently in a casual way to the determent of the public interest by delaying filing of the appeal or revision before the Court, this indeed being a very serious thing, he deserves to be departmentally inquired and proceeded with, but then this is altogether a different issue and cannot be permitted to over-shadow the public cause of not getting the matter decided on merits because of some delay.
In yet one more decision rendered in case of Sarpanch, Lonand Gram Panchayat v. Ramgiri Gosavi &.Am., , it has been observed that:
The Authority has a discretion to condone the delay.... This discretion like other judicial discretion must be exercised with vigilance and circumspection according to justice, common sense, and sound judgment. The discretion is to know through law what is just. The words "sufficient cause" ever should receive a liberal construction so as to advance substantial justice when no negligence nor in absence nor want of bona fides is imputable to the applicant.
6. Further, it is indeed a matter of common knowledge and experience that in all such cases under the delay condonation, the stock argument that is usually advanced by the other side is that the accused person or a party concerned having once been acquitted or earned a particular decision in his favour, if the same is not challenged within the stipulated period of limitation, his said right to that extent stands further strengthened and consolidated, and accordingly, the same cannot be lightly disturbed and set aside, save and except after hearing the opponents, in case the Court is inclined to condone the delay. Now this general, intelligent and apparently quite fascinating argument when it is properly tested and understood in its correct perspective, the skin-deep mere cosmetic glamour and the facility it carries beneath, stands immediately exposed incapable to hold any ground even for a moment more. Accordingly, it is got to be remembered that neither any order of conviction nor of acquittal, and for that purpose the appeal or revision pursuant thereto, confers any absolute right on the State or the accused or the parties concerned to be always heard as a matter of course and right in each and every delay condonation application. In fact, had that not been so, obviously, there indeed would not have been any necessity for making any provision for appeal/revision against the impugned order of conviction or acquittal or for the enhancement of sentence, etc. etc. in Criminal Procedure Code, 1973 ! Further still, had indeed that not been so, there also would not have been any necessity for provision for condoning delay under the Indian Limitation Act, 1963 ! In this view of the matter, merely because either the accused is convicted or acquitted that does not by itself ipso facto means that in each and every case where there is delay in filing of the appeal or revision, the side succeeding in the trial Court, as a matter of right acquires any right to be heard on the point before the delay is condoned. In fact, in such type of cases as already discussed above, what is ultimately required to be seen by the Court is that (i) it should first of all be alive to the fact that the accused or the State, as the case may be, have not challenged the impugned order before the stipulated period of limitation, and (ii) thereafter, it should carefully scrutinise the alleged fads and circumstances occasioning delay, (iii) the gravity and seriousness of the offence, and (iv) the resultant impact of not condoning delay, that is to say whether it would defeat the ends of "substantial justice". In fact, at the cost of repetition, it may be once again be reiterated that whenever any Court is called upon to exercise its discretion on point as to whether the delay in question is required to be condoned or not, the ultimate decision on the point depends upon the extent of satisfaction reached by it on the basis of the four guiding principles streamlined above, and for that purpose, in each and every case, it is not always necessary to issue the notice to other side to hear him on the point ! Doing "Justice" is the most essential function and the sacred duty of the Court. This "Justice" means 'substantive justice' and not mere 'technical/pseudo justice' which many a times defeats even the meritorious case, which is nothing but the miscarriage of justice ! While doing "Justice" in true sense, how to exercise the discretion is essentially and always based on the facts and circumstances of that particular case. Accordingly, in cases wherein there is a delay of few days only or for that purpose in a given case, wherein it is the grossest one, on liberally construing the same, if it is duly explained making out 'sufficient cause' and/or further still, if the judicial conscience feels that the 'substantial justice' would stand to be hanged with the rope (of delay) of technicality, then in such a case, it is always the paramount duty of the Court to condone the delay in overall interest of justice to enhance and subserve the cause of 'substantial justice.' Thus, ultimately, the important question to be considered in such type of cases of delay is - Can a toy-gun of technicality be permitted to brow-beat and fear-strike the Court of Justice commanding it to "Hands up" and thereby rob it of its precious duty to do the substantial justice? If the answer is "Yes" (!!) it is better to wind up the judicial forum/ process and let the reign of technicalities prevail to trail behind anarchy and uncertainty in the Society ! To over-emphasis mere 'technical justice' by not condoning the delay ignoring altogether merits of the case with eyes wide open, more particularly, the cause of substantial justice plainly resulting into the open and flagrant miscarriage of justice is something quite hypocratic which no right-minded or so to say Court of ordinary prudence would ever think, tolerate and do while exercising the judicial discretion. It is matter of common knowledge that when the Court is called upon to do "Justice", it has to discharge its duty with full sense of responsibility. Accordingly, it is not always necessary to issue notices to other side because while appreciating the case at the time of admission, the Court even otherwise carefully scrutinises the facts and circumstances of that particular case and purely thereupon, bearing in mind legal position when it feels that no case is made out, then even in absence of other side, the Court can and does dismiss such appeal or revision application summarily and in case it is of the opinion that prima facie case is made out then such appeal or revisions are admitted. On very same principle, delay condonation applications can also certainly be decided and there indeed cannot be any such imperative rule that before deciding the same, to be exact condoning delay, notice should always be issued to the other side in each and every case, irrespective of the facts and circumstances of that particular case. In this view of the matter, to say that in every delay condonation application "Rule" should be issued as a matter of common practice, is nothing but an idle formality having no substance bearing whatsoever upon the concept of justice and fair-play to the otherside. This is what prima facie appears to be the correct view to look at in the delay condonation application.
7, Now turning back, in the first instance to the facts of this case occasioning delay of 11 days, the very fact that certified copy of the impugned judgment and order was applied for on 1-8-1992, that is to say within the period of limitation prescribed, it is very clear that the petitioner-State at no point of time had abandoned its intention to file appeal. No doubt that there is a clear delay of 11 days in filing the appeal but such sort of delay is bound to take place when the proposal to file appeal, before it reaches the decision taking authority in the Legal Department, and thereafter, to learned Public Prosecutor, High Court, it has to be routed through the bureaucratic channel which many a times is unfortunately not that keen, prompt, efficient and interested, as it is otherwise to receive salary packet at the end of every month, and rather in most of the cases, more or less found to be suffering from quite callous, impersonal attitude in such matters. It is only because of such indiscreet and irresponsible attitude lacking social orientation and thereby any concern and anxiety for the society by the concerned officers and the resultant redtapism that such delays are found to be alarmingly increasing every day ! Thus, taking into consideration all these facts "sufficient cause" is clearly made out to condone the delay of 11 days. This is one thing. But apart this, in second instance, supposing even if there was a gross delay in this case, then even, first of all, taking into consideration the gravity and seriousness of the offence wherein accused committed an offence of rape under Section 376 of IPC and thereunder, that though the Parliament in its wisdom has provided for the minimum sentence of 7 years and fine and yet despite this, the trial Court inflicted a meagre sentence of R I for two years and fine of Rs. 200/- only, without there being any special and adequate reasons, this is indeed one of the fittest case wherein for doing real and substantial justice, the delay is required to be condoned. Thus, prima-facie, this is one of the grossest case wherein there being clear violation of mandate by Parliament to inflict sentence of not less than 7 years in absence of any adequate and special reasons, not to admit the matter on the ground of any delay would indeed not only frustrate the mandatory Legislative provisions, but the same in a way also would tend to defeat the ends of justice.
8. In this view of the matter, we are fully satisfied that not only the 'sufficient cause' is duly made out. to condone the delay, but even otherwise, having regard to the facts and circumstances of the case, in the interest of justice also, this delay condonation application deserves to be allowed. In fact and further still, having regard to the gravity and seriousness of the offence and that less than the minimum sentence of 7 years is given in absence of any adequate and special reasons, the delay being purely a technical ground, no right-minded man with any prudence, even if Rule is issued and hears other side would ever sustain objection to condone the delay and refuse the same. When such is the position, we feel that it is not at all necessary to issue "Rule" and accordingly, we condone the delay.
9. In the result, this Misc. Criminal Application is allowed and stands disposed off accordingly. Delay of 11 days in filing the appeal for enhancement is condoned.