State (Nct of Delhi)
Vs. Ahmed Jaan [2008] INSC 1350 (12 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of SLP (Crl.) No. 131 of 2006) State (NCT of Delhi) ...Appellant Versus
Ahmed Jaan ...Respondent
Dr. ARIJIT PASAYAT, J
1.
Leave
granted.
2.
Challenge
in this appeal is to the order passed by a learned Single Judge of the Delhi
High Court dismissing the Criminal Revision Petition (Crl.R.P.No.356/2004) on
theground that there was inordinate delay in filing and re-filing the revision
petition.
3.
Factual
position as highlighted by the appellant is as follows:
The respondent, who
is a resident of Jammu &, Kashmir, was apprehended at Sheila Cinema in
Delhi on 05.03.1997 on the basis of information that he belongs to a terrorist
outfit "Tehreek-ul-Mujahideen' (TUM) of J&K. From a search of his
person and his hotel room, a letter containing instructions regarding activities
to be carried out in Delhi for collecting money and arms for freedom of Kashmir
was recovered. The letter contained coded information regarding RDX and
Grenades as "AT'TA' and 'ANAR' and was allegedly written by one Abu
Ibrahim. A personal diary containing telephone numbers of Pakistan and a sum of
Rs.30,000/- suspected to be Hawala money were also recovered from the
respondent. It was found that the respondent had been frequently coming to
Delhi and stayed at Welcome Guest 2 House and used to make telephone calls to
his contacts in Pakistan and collected money in Delhi which he used to transfer
to Srinagar through carpet dealers at Kashmir and Commission agents for goats
and thus, he actually got transferred Rs.17-1/4 lacs through Ghayasuddin and
Mohd. Ahad of Srinagar.
The respondent was
charge sheeted under Sections 121/121A/122/124-A/120-B of Indian Penal Code,
1860 (in short `IPC') on the above allegations of being a member of TUM and for
conspiring in waging war against the Government of India. The respondent was
thereafter tried in the Court of the Addl. Sessions Judge, Delhi in Sessions
Case No.7/98.
By order dated
30.10.1998 in Sessions Case No.7/98, the learned Addl. Sessions Judge
discharged the accused at the threshold, holding that prima facie there was no
legal evidence to show that the respondent has committed any of the alleged
acts.
3 Aggrieved, the
appellant filed Criminal Revision Petition 356/2004, along with an application
for condoning the delay in filing the petition. After filing the revision
petition, the Registry of the High Court raised certain objections, and the
file was received back in the Department for curing the defects. Unfortunately,
due to paucity of space, the file got mixed up with other files in the office
of the Standing Counsel, and was traced only in June, 2003. The revision
petition was thereafter re-filed along with an application for condonation of
delay in re-filing.
The High Court
dismissed Crl. Rev. Petition No.356/2004 and Crl. M.A. No. 5227/2004 by
judgment dated 10.8.2005, being of the view that there was unexplained delay in
filing and re-filing the revision petition.
4.
It
is submitted by learned counsel for the appellant that the High Court did not
even deal with the explanations given 4by the appellant in explaining the
delay. The summary rejection by the High Court holding that delay has not been
properly explained was not correct. It is pointed out that the conclusions of
learned trial Judge directing discharge are unsustainable both on facts and in
law.
5.
Learned
counsel for the respondent on the other hand submitted that merely because the
allegations were serious in nature, the order impugned before the High Court
does not require interference as it is blemishless. Learned trial Judge rightly
noted that there was no evidence of criminal conspiracy against him and
therefore his discharge was rightly directed.
6.
At
this juncture, it is stated, at this length of time it would not be proper to
set aside the order of High Court.
7.
The
proof by sufficient cause is a condition precedent for exercise of the
extraordinary discretion vested in the 5court. What counts is not the length of
the delay but the sufficiency of the cause and shortness of the delay is one of
the circumstances to be taken into account in using the discretion. In N.
Balakrishnan v. M. Krishnamurthy (AIR 1998 SC 3222) it was held by this Court
that Section 5 is to be construed liberally so as to do substantial justice to
the parties. The provision contemplates that the Court has to go in the
position of the person concerned and to find out if the delay can be said to
have been resulted from the cause which he had adduced and whether the cause
can be recorded in the peculiar circumstances of the case is sufficient.
Although no special indulgence can be shown to the Government which, in similar
circumstances, is not shown to an individual suitor, one cannot but take a
practical view of the working of the Government without being unduly indulgent
to the slow motion of its wheels.
8.
What
constitutes sufficient cause cannot be laid down by hard and fast rules. In New
India Insurance Co. Ltd. v. Shanti Misra (1975 (2) SCC 840) this Court held
that discretion given by Section 5 should not be defined or crystallised so as
to convert a discretionary matter into a rigid rule of law. The expression
"sufficient cause" should receive a liberal construction. In Brij
Indar Singh v. Kanshi Ram (ILR (1918) 45 Cal 94 (PC) it was observed that true
guide for a court to exercise the discretion under Section 5 is whether the appellant
acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi
Jain v. Kuntal Kumari (AIR 1969 SC 575) a Bench of three Judges had held that
unless want of bona fides of such inaction or negligence as would deprive a
party of the protection of Section 5 is proved, the application must not be
thrown out or any delay cannot be refused to be condoned.
9.
In
Concord of India Insurance Co. Ltd. v. Nirmala Devi (1979 (4) SCC 365) which is
a case of negligence of the counsel which misled a litigant into delayed
pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v.
A. Narayanan (1969 (2) SCC 770), this Court had held that there is no general
proposition that mistake of counsel by itself is always sufficient cause for condonation
of delay. It is always a question whether the mistake was bona fide or was
merely a device to cover an ulterior purpose. In that case it was held that the
mistake committed by the counsel was bona fide and it was not tainted by any
mala fide motive.
10.
In
State of Kerala v. E. K. Kuriyipe (1981 Supp SCC 72), it was held that whether
or not there is sufficient cause for condonation of delay is a question of fact
dependant upon the facts and circumstances of the particular case. In Milavi
Devi v. Dina Nath (1982 (3) SCC 366), it was held that the appellant had
sufficient cause for not filing the appeal within the period of limitation.
This Court under Article 136 can reassess the ground and in appropriate case
set aside the order made by the High Court or the Tribunal and remit the matter
for hearing on merits. It was accordingly allowed, delay was condoned and the
case was remitted for decision on merits.
11.
In
O. P. Kathpalia v. Lakhmir Singh (1984 (4) SCC 66), a Bench of three Judges had
held that if the refusal to condone the delay results in grave miscarriage of
justice, it would be a ground to condone the delay. Delay was accordingly
condoned. In Collector Land Acquisition v. Katiji (1987 (2) SCC 107), a Bench
of two Judges considered the question of the limitation in an appeal filed by
the State and held that Section 5 was enacted in order to enable the court to
do substantial justice to the parties by disposing of matters on merits. The
expression "sufficient cause" is adequately elastic to enable the
court 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 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. This
Court reiterated that the expression "every day's delay must be
explained" does not mean that a pedantic approach should be made. The
doctrine must be applied in a rational common sense pragmatic manner. 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. 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.
Judiciary is not respected 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 step-motherly treatment when the State is the
applicant. The delay was accordingly condoned.
12.
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) and the inherited bureaucratic methodology imbued with the note-making,
file-pushing, and passing-on-the-buck ethos, delay on its part is less
difficult to understand though more difficult to approve. The State which
represents 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 of sufficient cause. Merit is preferred to scuttle a decision on
merits in turning down the case on technicalities of delay in presenting the
appeal.
Delay as accordingly
condoned, the order was set aside and the matter was remitted to the High Court
for disposal on merits after affording opportunity of hearing to the parties.
In Prabha v. Ram Parkash Kalra (1987 Supp SCC 339), this Court had held that
the court should not adopt an injustice- oriented approach in rejecting the
application for condonation of delay. The appeal was allowed, the delay was
condoned and the matter was remitted for expeditious disposal in accordance
with law.
13.
In
G. Ramegowda, Major v. Spl. Land Acquisition Officer (1988 (2) SCC 142), it was
held that no general principle saving the party from all mistakes of its
counsel could be laid. The expression "sufficient cause" must receive
a liberal construction so as to advance substantial justice and generally
delays in preferring the appeals are required to be condoned in the interest of
justice where no gross negligence or deliberate inaction or lack of bona fides
is imputable to the party seeking condonation of delay. 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 and institutional
decisions and do not share the characteristics of decisions of private
individuals. The law of limitation is, no doubt, the same for a private citizen
as for governmental authorities. Government, like any other litigant must take
responsibility for the acts, omissions of its officers.
But a somewhat
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. It was, therefore, held that in assessing
what constitutes sufficient cause for purposes of Section 5, it might, perhaps,
be somewhat unrealistic to exclude from the consideration that go into the
judicial verdict, these factors which are peculiar to and characteristic of the
functioning of the Government.
Government 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 these limitations on governmental functioning
- of course, within reasonable limits - is necessary if the judicial approach
is not to be 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. Implicit in the very nature of Governmental functioning is
procedural delay incidental to the decision-making process. The delay of over
one year was accordingly condoned.
14.
It
is axiomatic that decisions are taken by officers/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 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 requires 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 to 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.
15.
The
above position was highlighted in State of Haryana v. Chandra Mani and Ors.
(1996 (3) SCC 132); Special Tehsildar, Land Acquisition, Kerala v. K.V.
Ayisumma (1996 (10) SCC 634) and State of Nagaland v. Lipok AO and Ors. (2005
(3) SCC 752). It was noted that adoption of strict standard of proof sometimes
fail to protract public justice, and it would result in public mischief by
skilful management of delay in the process of filing an appeal.
16.
We
find that the appellant had indicated the reasons for the delay in filing and
re-filing the revision petition. The High Court unfortunately did not deal with
those explanations and merely stated that the delay has not been explained. The
High Court was required to examine the correctness of the explanation given,
keeping in view the principles laid down by this Court in several cases.
According to us, the explanations offered were plausible and deserved to be
accepted. Accordingly, we set aside the impugned order of the High Court and
remit the matter to it to hear the Criminal Revision on merits. It is made
clear that we have not expressed any opinion on merits.
17.
The
appeal is allowed.
.........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J
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