(1) The State has filed this appeal against the acquittal of the two accused persons by the Additional Sessions Judge, Bijapur, in Session Case No. 96/1961.
(2) Laxman Sharanappa Shirguppi and Gurappa Shidramappa Shirguppi, the respondents in this appeal, were charged with the offence the committing murder of Bhimashya Ramdas Mangasuli, on or about 11-8-1961 at about 9 A.M. near a bund in R.S. No. 76/3B of Takkalki village, in furtherance of their common intention to commit the murder. The charge further stated that A-1 Laxman Sharappa Shirguppi beat the deceased with the axe and that A-2 Gurappa Shidramappa Shirguppi beat the deceased with a stick and thus both of them caused the death of Bhimashya and thereby committed and offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
(3) The learned Sessions Judge held that accused 1and 2 assaulted the deceased and caused his death as alleged by the prosecution; but that they acted in self defence when the deceased assaulted accused 1 with a 'merge' in a such a way as to give rise to a reasonable apprehension of death of accused-1. Hence, the learned Sessions Judge acquitted the accused. Feeling aggrieved by the acquittal of the respondents by the learned Sessions Judge, the State has filed this appeal.
(4) At the commencement of the hearing of this appeal, Mr. B. V. Krishnaswamy Rao, the learned counsel for the respondents-accused, raised a preliminary objection that the appeal was barred by time and that the state had not shown sufficient cause for condoning the delay in filing the appeal.
(5) It is will settled that before an appeal under Section 417 of the Code of Criminal Procedure can be decided on merits, it is the duty of the Court to determine whether the appeal is filed in time and if there is any delay, whether such delay in presenting the appeal should be condoned.
(6) Along with the memorandum of appeal, the state filed an application under Section 5 of the Limitation Act supported by affidavits, praying for the condonation of delay in filing the appeal. When the appeal came up for admission before a Bench of this Court on 12-8-1963, the said Bench condoned the delay and admitted the appeal. But, before so condoning the delay, the respondents were not notified nor were they heard.
(7) As laid down, by the Privy Council in Krishnaswamy v. Ramasami, ILR 41 Mad 412 : (AIR 1917 PC 179) when the delay in filing an appeal is condoned without notice to respondent, it is open to the respondent to raise the question of limitation at the time of final hearing of the appeal. The following observation of the Privy Council are apposite :
'It must, therefore, in common fairness be regarded as a tacit term of an order like the present that though unqualified in expression it should be open to reconsideration at the instance of the party prejudicially affected; and this view is sanctioned by the practice of the Courts in India.'
(8) Mr. Ashrit, the learned High Court Government Pleader, who appeared for the Appellant, however, contended that the respondents' objection was highly belated and that they should have raised this objection by way of a motion, within a reasonable time after they were served with the notice of the appeal. In support of his contention Mr. Ashrit relied on the decision of the Madras High Court in Murugappa Naicker v. Thayammal, AIR 1923 Mad 82. In that case also the delay in presenting the appeal was condoned at the time of the admission of the appeal without the notice to the respondent. After the records were printed, the appeal came up for hearing. The High Court of Madras took view that the objection of the respondent was belated. Schwabe, C.J. observed as follows :
'A Court will never allow people to wait upon their rights while the other party incurs expenses, and in a case of this kind, it being open, as was found in the Privy Council case, to the respondent to move the Court to set aside the leave, he did nothing of the kind. He has waited for a period of one year and a half until all the expenses of the hearing have been incurred and now comes into Court and says that the appeal should be dismissed because it was originally out of time. I should never entertain such an application and I do not propose to listen to-day.'
(9) It is not clear from this decision whether the appeal was a Letter Patent Appeal on leave being granted from the decision of the single Judge and whether the procedure relating to such appeals provided for the respondent making a motion for cancelling leave granted. However, according to practice of this Court, when criminal appeal is admitted, the next stage in the case will only be its hearing. There is no express provision for making a motion for cancelling admission of a criminal appeal.
(10) Further, the appellant cannot be said to have incurred any expenses for preparation of the records because the records are typed by the Office of the High Court and the appellant is not called upon to pay any amount towards the charges of typing or printing in criminal appeals. It is no doubt true that the money for typing or printing of records in criminal cases must ultimately come from the State funds. But the State, qua appellant, will not incur any expenses for printing or typing of records. Hence the facts of this case are distinguishable from the facts of the aforesaid Madras Case.
(11) Mr. Ashrit also relied on the decision of Bishendut Tewari v. Nandan Pershad Dubay, 22 Cal WN 25 in which the High Court of Calcutta has also observed that an order admitting the appeal should not be discharged inter alia because the respondent's application was made after the records had been printed and the costs incurred by the appellants. But on a close reading of the decision we find the Calcutta High Court came to the conclusion that besides the delay on the part of the respondents in bring their objections before the Court, there was a bona fide mistake of calculation on the part of the appellant. Woodroffe, J. observed that each case must be decided on its own facts. Hence this decision also does not help Mr. Ashrit.
(12) We are, therefore, unable to accept the contention of Mr. Ashrit that the respondent's objection is belated and that it should be placed on that ground.
(13) We shall now proceed to consider whether the delay in filing the appeal should be condoned. The judgment of the learned sessions Judge against which this appeal is filed was delivered on 15-1-1963. A free copy of the judgment was supplied to the Public Prosecutor on 19-1-1963. The appeal was filed on 26-7-1963.
(14) The period of limitation as provided by Article 157 of the Indian Limitation Act, 1908, for filing an appeal against an order of acquittal is three months from the date of the order appealed from. Thus, even after excluding the time taken for obtaining the copy of the judgment the appeal was filed after 97 days beyond the prescribed period.
(15) The appellant's application under Section 5 of the Limitation Act for condonation of delay is supported by two affidavits, one sworn to by Sri M.R. Pai, Librarian, Vidhan Soudha and another by Sri. P. Ramachandra Rao, Under-Secretary to the Government.
(16) In the later affidavit it is stated that Sri T. Venkataswamy, the then Under-Secretary, had worked up the file relating to this case, that he had recommended filing of an appeal and marked it to the Deputy Secretary, Litigation on 29-3-1957 that the file was given to a Dalayat for being carried to the Deputy Secretary, that the said Dalayat appeared to have misplaced the file in the rack containing the old Gazettes that Sri T. Venkataswamy handed over charge on 11-4-1963, that after the file was traced some time was taken for scrutiny of papers and for holding an enquiry into the misplacement of the file and that the Government passed orders on 24-7-1963 sanctioning filing of the appeal was not wanton, that it was due to the misplacement of the file by Dalayat unconsciously and its not having been noticed by the then Under-Secretary. In the affidavit of the Librarian it is stated that the Librarian found on 8-7-1963 at about 5-25 P.M. the file relating to the preferring of the appeal along with three other files in the rack containing old Gazettes adjoining the Law Library and that the Librarian sent the file to the acting Under Secretary, publication and that on 9-71963, the said Under Secretary sent the file to the litigation section of the Law Department.
(17) We have now to consider the explanation offered on behalf of the appellant for the delay in filing the appeal is satisfactory and would constitute sufficient cause for not preferring the appeal within the period of limitation prescribed by Article 157 of the Indian Limitation Act, 1908.
As laid down by the Bombay High Court in Emperor v. Shiva Adar, 9 Bom LR 893, the power given to the Court under Section 5 of the Limitation Act to condone the delay has to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood and delay in filing an appeal ought not to be excused unless there are special circumstances. While dealing with an application under Section 5 of the Limitations Act, the Courts are always influenced by the considerations whether the extensions of the period of the limitation is likely to affect the rights which have come to vest in the opposite party efflux of time. When the time for filing an appeal has once passed, a very valuable right is secured to the successful litigant.
(18) As regards the delay in filing an criminal appeal, there is an important distinction between the State and the accused. As pointed out by Badari, C.J. in State v. Dittu Ram, no right can be said to vest in the State to have the conviction of an innocent person upheld; but a very clear right comes to vest in the accused person by efflux of time and he is entitled to claim that, save in exceptional circumstances delay in filing the appeal should not be condoned.
(19) But Mr. Ashirt, the learned High Court Government Pleader, contended that the Court should make a distinction between the 'State' and a 'Private Litigant' and the expression 'sufficient cause' should be construed liberally where the party in default is the State because, the machinery of the State Government is a very vast and complicated one and that the Government, while dealing with a large volume of work, cannot be expected to act with the same diligence or expedition as a private litigant. In support of this contention he relied on the following observation of the Sind Judical commissioner's Court in Secy. of State v. Gurmukhdas, AIR 1929 Sind 211.
'The Act makes no distinction between Government and a private individual but it is obvious that in considering an application under S. 5 a distinction must be made. A private person has only himself to consider and must be presumed to be familiar with every aspect of his case. Government has to consider the pubic interest and cannot be expected to know the fact of each individual case. They require time for inquiry and consideration before taking action and must consult the local officers to whom they cannot delegate their powers. It follows that a time which may be ample for a private litigant may be none too great for Government.'
(20) With all respect to the learned Judges of the Sind Judicial Commissioner's Court, we are unable to subscribe to this view. As pointed out by Assam High Court in State of Assam v. Haji Habib, AIR 1952 Assam 48, the language of the statute does not justify any discrimination between the State and the subject and the case, therefore, has to be decided on general principles which apply to all ordinary litigants who may have to apply for the condonation of delay under Section 5 of the Limitation Act.
(21) In considering the expression 'sufficient cause' occurring in O. 22, R. 9, Civil P.C., the Supreme Court observed as follows in Union of India v. Ram Charan, : 3SCR467 :
There is no question of construing the expression 'sufficient cause' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent'.
(22) As observed by Beg. J. in State of Uttar Pradesh v. Christopher Tobit, (S) AIR 1955 All 473 law has already allowed an extended period of limitation to the Government for filing an appeal against acquittal. While the period of limitation allowed for a private person to prefer an appeal to the High Court from an order of conviction is only sixty days, a longer period of three months is prescribed by Art. 157 of the Limitation Act for the State to prefer an appeal against an acquittal. The period of limitation is deliberately made larger by the legislature in the case of the Government considering that the matter has to go through various stages before a decision on the question is taken. The period of limitation should not be further enlarged merely on the ground of exigencies of official business and communication. For this reason, the law has very properly made no difference between the mode of approach by the Court to an application under Section 5 of the Limitation Act by the Government or by a private party.
(23) Even accepting all the averments in the two affidavits of the appellant, the delay up to 9-7-1963 can be explained as being due to the misplacement of the file. In a big office like the secretariat where there are a large number of files and where the papers have to be handled by a large body of officials including orderlies whose education may not be sufficient to read the titles of the files, such misplacement of files is likely to happen now and then. But there should be some arrangement by which responsible officials should be in a position to keep track of the files and to detect misplacement of files with in a reasonable time after such files are despatched or are not received back from the persons who have to pass orders on such files. If in the litigation section of Law Department a register had been maintained of the cases which the State proposed to file appeals against the decisions of the subordinate Courts or at least of cases of acquittal in which the state proposed to file appeals, such misplacement of files could have been detected before the expiry of the respective dates for filing appeals.
(24) Even if we are prepared to accept the explanation on behalf of the State as to the delay up to the date of tracing the misplaced file, namely, 9-7-1963, we have to consider whether there was a due diligence on the part of the authorities concerned in dealing with the matter thereafter.
(25) It is settled law that in order to have the benefit of Section 5 of the Limitation Act, it is the duty of the applicant who seeks such benefit, to explain the delay of every day that elapsed beyond the period of limitation.
(26) In this case, the Government passed orders on 24-7-1963 sanctioning filing of the appeal. As stated earlier, the appeal was filed on 26-7-1963. We are prepared to treat the interval of two days between the Government's sanctioning filing of the appeal and the office of the Advocate-General filing the appeal, as not being unduly long, as the counsel for the state had to study the judgment and other papers in the case, prepare grounds, get them typed and file an application under Section 5 of the Limitation Act supported by affidavits.
(27) But the appellant has yet to explain the delay between 9-7-1963, ie., the date on which the file was traced and came to be in the possession of the litigation section of the Law Department and 24-7-1963, the date on which the Government passed orders. The affidavit of the Under Secretary does not disclose any satisfactory reason for this inordinate delay. Mr. Ashrit, the learned High Court Government Pleader merely stated that an enquiry was held in the Law Department of the Secretariat into the misplacement of the file and that the papers had to pass through several officers before the Government passed orders sanctioning the filing of the appeal. We are unable to see how holding of an enquiry as to the misplacement of the file could be ground for the delay in filing the appeal. Such enquiry could have gone on without holding up the file and without deferring the filing of the appeal. It is evident from the affidavit of the Under-Secretary to the Government that his predecessor had already studied the file and made a recommendation for filing an appeal. Seeing that the period of limitation had already expired, an Under-Secretary or a responsible official could have taken the file personally to the several officers through whom the papers had to pass through before the Government passed orders sanctioning the filing of the appeal. If such a procedure had been followed, it would have not been difficult for the Government to pass orders within a day or two after the tracing of the file. The delay of nearly a fortnight between sanctioning filing of the appeal and the passing of the order be reasonable in circumstances of the case nor has the appellant shown any diligence on the part of the authorities in dealing with the matter between these two dates.
(28) Hence we hold that the appellant has not shown sufficient cause for the condonation of delay in filing the appeal. In the result, this appeal is dismissed in limine on the ground that it has been filed beyond the prescribed period of limitation.
(29) Appeal dismissed.