Madhya Pradesh High Court
State Of M.P. vs Mohd. Jabbar Khan on 7 February, 2002
Equivalent citations: 2002CRILJ4812, 2002(3)MPHT465, 2002 CRI. L. J. 4812, (2002) 3 MPLJ 438, (2002) 3 MPHT 465, 2002 CRILR(SC&MP) 547, (2003) 1 ALLINDCAS 365 (MP)
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. Invoking the revisional jurisdiction of this Court under Section 401 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') the petitioner, the State of Madhya Pradesh, has called in question the sus-tainability of the order dated 5-5-1999 passed by the learned Judicial Magistrate First Class, Ajaygarh, Panna in Criminal Case No. 297/98 whereby the learned Magistrate has discharged the non-applicant, Mohd. Jabbar Khan, in exercise of power conferred on him under Section 249 of the Code.
2. The facts lie in a narrow compass. The State of M. P. through Forest Range Officer filed a complaint petition before the aforesaid Magistrate against the accused in respect of offences punishable under Sections 33 and 52 of Indian Forest Act, 1927 on the allegation that he had felled 72 pieces of wood belonging to two categories, namely, teak and 'satkata'. Before the learned Magistrate, the complainant did not examine himself and time was sought on many an occasion and the learned Magistrate fixed the case to 5-5-99 for recording of evidence of the complainant and his witnesses and it was mentioned by the Magistrate that if the complainant and his witnesses were not produced on the date fixed the accused would be discharged. In spite of the aforesaid peremptory order the complainant did not make himself present in the Court to dispose and no application was filed specifying the reasons why the complainant or witnesses were not produced before the Court. Consequently the impugned order followed.
3. It is apposite to mention here that against the order passed by the learned Magistrate a revision was preferred before the learned Sessions Judge, Panna and eventually the matter came to be dealt with by the learned Additional Sessions Judge. Before the said Court an application was filed by the learned Public Prosecutor that the matter would be agitated before the High Court by filing a revision and on that submission the criminal revision was withdrawn. Thereafter the present petition has been filed.
4. It is appropriate to mention here that an application under Section 5 of the Indian Limitation Act, forming the subject-matter of Misc. (Cr.) Petition No. 1946/01 has been filed seeking condonation of delay. It has been mentioned in the application that due to ignorance of the clerk in the office of the public prosecutor the date could not be known and certified copy of the order could not be applied and no sooner the petitioner came to know about the fact of the case, application for certified copy was submitted and the same was obtained. As pleaded, a revision was filed in the Court of Session but the revision petition was sought to be withdrawn with liberty to file the petition before this Court. It is also urged in the petition that some time was spent in obtaining the permission from the department of law and eventually the matter was sent to the office of the Advocate General on 7-3-2001. At that juncture, due to the renovation of the building of the Advocate General the file was misplaced and later on after locating the file the revision petition was filed on 19-3-2001. The Registry has pointed out that there has been delay of 580 days in filing of the present revision petition. Mr. Robertson, learned Government Advocate has submitted that the delay in filing the application should be condoned inasmuch as a number of paraphernalias arc involved to file the revision and there was some mistake at the level of the Public Prosecutor.
5. Mr. Imtiyaz Hussain, learned Counsel appearing for the non-applicant has raised a colossal objection with regard to enormous delay in preferring the revision by the State. It is submitted by him that the lackadaisical attitude shown by the State does not deserve exoneration and there is no extenuating circumstances to condone the delay. The learned Counsel for the non-applicant seriously criticised the withdrawal of the revision petition from the Court of Additional Sessions Judge, Panna indicating that the revision would be filed before this Court though concurrent jurisdiction rests with both the Courts. Mr. Imtiyaz Hussain has also resisted the grounds urged in the petition by contending that the State has not advanced proper grounds in explaining the delay of 580 days. The learned Counsel for the non-applicant has also submitted that as the revision before the learned Additional Sessions Judge was maintainable, the State is not entitled to advance a plea under Section 14 of the Limitation Act.
6. The core question that falls for consideration is whether the delay in filing the revision should be condoned or not. I may at the out set state that whether the revision before the Additional Sessions Judge was maintainable or not, I am not disposed to address myself on that score. As far as the delay is concerned many a ground has been taken. Mr. Imtiyaz Hussain, learned Counsel has combated the grounds with vehemence. The facts are to be appreciated in proper perspective. It is a well known fact that the State is required to look after collective and larger public interest. An individual interest ordinarily has to succumb and yield into the larger interest of the State. When the concept of more public good is involved lesser individual consideration has to give in. When the State is put to loss for some reason or other it is the society as a whole suffers and such suffering becomes a part of suffering of each individual and at that singular individual suffering can not be given priority when it is tested on a higher social spectrum. Law and order are to prevail in an organised and civilized society. He who creates a dent in social order is booked by the State to face criminal trial for the Simon pure reason that no person can be convicted without trial but, a significant one, should he be discharged because of the callousness and carelessness of a public officer, an individual who stands in contra-distinction to the collective. In this context I may profitably refer to the decision rendered in the case of G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897, wherein Venkatchallaiya, J. (as his Lordship then was) laid down as under:--
"In litigations to which Government is a party there is yet another aspect which perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective the institutional decisions and do not share the characteristics of decisions of private individuals.
The law of limitation, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a some what different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it.
Therefore, in assessing what, in a particular case, constitutes 'sufficient cause' for purposes of Section 5 it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government, Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have a little play at the joints. Due recognition of three limitations on Governmental functions of course, within a reasonable limit is necessary if the judicial approach is not rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters....."
7. On a perusal of the aforesaid decision it becomes quite perceptible that the law of limitation is same for citizens as well as for the Government but the concept of public interest also gets attracted when the Government is faced with a problem of this nature. To elucidate, the concept of sufficient cause includes the pragmatic problems and situations that are faced by the Government while preferring appeal or revision. A play at the joints has to be given allowance in the case where there is delay at the instance of the State. In this regard I may profitably refer to the three Judge Bench decision rendered in the case of State of Haryana v. Chandm Mani and Ors., AIR 1996SC 1623, wherein their Lordships held as under :--
"10. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court -- he 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 intentional 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 injustice 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 delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay."
8. In view of the aforesaid pronouncement of law it becomes quite vivid that in the matter relating to condonation of delay as far as the State is concerned the facets like impersonal machinery, bureaulogy, file-pushing, passing-on-the-buck ethos and such other factors can not totally be ignored and some latitude has to be shown. The present factual matrix is to be appreciated on the touchstone of aforesaid enunciation of law. On a scrutiny of the application it is manifest that from the very beginning attitude of passing-on-the-buck has been taken recourse to. The learned public prosecutor who filed the revision before the Additional Sessions Judge, Panna, whatever might have been his reason he sought withdrawal of the same for filing it before this Court. As has been mentioned earlier there has been deliberation in the Department of Law and Legislative Affairs and the file was sent to the office of the Advocate General. As pleaded the file was lost during renovation of the building of the Advocate General's Office. The cumulative effect of all these is that there has been enormous delay. One can see that the file moved like a patient suffering from partial paralysis. Ordinarily this Court, if the matter would have been different, would have been at loath to condone the delay but what weighs with this Court is the nature of offence and languorous proclivity exhibited by the complainant, the Range Officer. The allegation is that the non-applicant has felled the trees from the forest land. It can not be lost sight of the fact that the forest is the most protected and preserved national property and none can afford to play with the said property. It has been said that he who cuts trees today lives on the borrowed time from the future generation. It has been so said because in absence of forest a time would come when the posterity of this nation would have to remain sans forest and there would be a cataclysm in the atmosphere where there would be lack of rain, uncontrolled pollution, degeneration of the growth of such trees which are much essential for the existence of human being on the surface of the earth. Hence, no individual can be allowed to brush it away and go unpunished. Not for nothing Thomas Edward, the eminent British poet expressed thus :--
"I have come to the borders, The unfathomable deep of sleep.
Forest where all must lose, Their way."
9. If the factual matrix is tested on the touchstone of the aforesaid, delay which has occurred due to negligence of the public officers has to be condoned. It is to be borne in mind that he who cuts a free today, kills a child of tomorrow and no one has to shut the life of tomorrow. One may have some control over newness of life but can not be permitted to play with lives of the future generation and hence, the delay in filing the revision is condoned.
10. Now to the merits of the orders. True it is, the learned Magistrate had posted the matter for production of the complainant to give the evidence. It is apparent that the complainant did not appear nor any application had been filed explaining the non-appearance. The persons working in the forest department should have been more careful and these matters should have been dealt with in proper manner. But the question that falls for consideration is whether such an act of the complainant as well as the Public Prosecutor warranted discharge of the accused in an offence of this nature. In my considered view the order of discharge is sensitively susceptible being against public interest. I may profitably refer to a passage from the decision rendered in the case of M.K.C.G. Medical College and Ors. v. Bidulata Mahapatra, 81 (1996) CLT 643:
"An individual claim can be brushed aside but the interest of the collective cannot be ignored. A public body or a State is represented by its officials. For negligence of a single official or person the society as a whole suffers. Suffering of the society has to be weighed vis-a-vis the harassment undergone by an individual. It is settled in law that limitation is a matter of technicality. It is in the realm of adjective law and has its own importance but it cannot be the summum boum of every litigation."
11. In view of the aforesaid premises, I am of the considered view that the learned Magistrate should have kept in view the gravity of the matter, nature of offence and ensured the presence of the complainant and should not have discharged the accused. Consequently, the order passed by the learned Magistrate is set aside and it is directed that the learned Trial Magistrate shall proceed with the trial. Mr. Robertson, learned Government Advocate assures this Court that the complainant and other witnesses shall be made available to the Trial Court for examination on 30-4-2002. It is hereby made clear that the Secretary, Forest Department and the Secretary, Law shall see to it that these witnesses are produced before the learned Trial Magistrate so that repetition of this nature does not occur. The higher authority can not be oblivious to whole scenario and put the blame on the clerk of the Advocate. They must remain constantly aware and alive to understand the problem of this nature and the serious consequence that entails. The message must get into their system. It is to be remembered that higher the office more the responsibility. The authority has the sanguine duty to see that if criminal proceedings are initiated they should be carried to their logical end. After lodging a complaint, one can not get into hibernation as if his duty has ceased. Such an attitude is not appreciable. This Court hopes and trusts that all concerned would rise to the occasion so that the controversy is put to rest. The prosecution must also keep in view the law that speedy trial is one of the sacred facets of Article 21 of the Constitution. Authorities of the State can not behave like truants and conduct the affairs in a half hazard manner. That would be hazardous. Let copies of this order be sent to the Home Secretary as well as the Law Secretary of the State. They should take appropriate action in this matter and also issue guidance to the Public Prosecutor and their assisting staff so that these kind of litigations do not travel to this Court.
The Lower Court records be sent back forthwith.
12. The criminal revision is accordingly allowed.