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State of Rajasthan Vs. Rikhabchand and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberCriminal Appeal No. 151 of 1965
Judge
Reported in1966CriLJ1062
ActsLimitation Act, 1963 - Sections 5 - Schedule - Article 114; Code of Criminal Procedure (CrPC) , 1898 - Sections 417
AppellantState of Rajasthan
RespondentRikhabchand and anr.
Appellant Advocate Harnath Calla, Adv.
Respondent Advocate Chand Mal, Adv.
DispositionAppeal dismissed
Cases ReferredPunjab State v. Gopalsingh
Excerpt:
.....occurred in the filing of the appeal cannot be accepted. 24. in the present case i have arrived at a definite conclusion that the state has not been vigilant and diligent in the matter of this appeal, and the state has failed to make out a case under section 5 of the limitation act......action for the return of the certified copy of the order to the government advocate's office. the state government has not chosen to say whether any such steps were taken or not. all this implies want of due care, attention and foresight particularly in the law department which is manned by officers of the judicial department, who are expected: (i) to show judicial approach; (ii) to undertake thorough comprehensive and yet objective examination of the matters coming before them, and (iii) to adopt precise and well defined line of action even though they are temporarily in charge of administrative functions in the law department. 14. i need not, however, entirely rest my decision on these considerations and proceed further with the case. the certified copy of the order was despatched.....
Judgment:

L.N. Chhangani, J.

1. This is an appeal by the State and is directed against the order of the Additional Munsiff Magistrate, Jalore, dated 30th April, 1964 acquitting the respondents Rikhabchand son of Kesarimal and Mst. Tipu, wife of Rikhabchand. The respondents are husband and wife.

2. On a report lodged by the complainant Hastimal, the real brother of the accused-respondent Rikhabchand, the accused respondents were prosecuted of an offence under Section 379, Indian Penal Code in the Court of Additional Munsiff Magistrate, Jalore. The Magistrate did not hold the case proved against the respondents and acquitted the respondents. The State has filed the present appeal.

3. The appeal has been placed before me for the determination of the question of limitation raised in the office report.

4. The relevant facts may be stated at the outset as follows:

The Government in the Law Department was approached for sanctioning a Government appeal against the acquittal of the respondents. Who approached the Law Department and when cannot be ascertained from the record of this case. The Law Department forwarded the relevant papers including a certified copy of the order to be appealed against to the Government Advocate at Jodhpur for expression of opinion whether the case was fit one for an appeal. The date of the despatch of the papers from the Law Department has not been disclosed but it is stated that the papers were received in the Government Advocate's Office on 28-8-1964. On the same day, in the Government Advocate's Office, the case was marked to Shri Sumernath Gurtoo, Deputy Government Advocate. Mr. Gurtoo after scrutinising the case sent his opinion to the Legal Remembrancer on 4-9-1964 along with the record including the certified copy of the order.

5. In the mean time before the receipt of Mr. Gurtoo's opinion in the Law Department nay even before the despatch from the Government Advocate's Office the Law Department took a decision for filing an appeal in the High Court on or before 3-9-1964 and sent a letter of sanction to the Government Advocate on 3-9-1964. Evidently the Law Department had no prior discussions on phone or otherwise with the Law Officer who was scrutinising the case as to the fitness of the case for an appeal to the High Court, nor even the Law Department communicated its decision to the Government Advocate on phone or by a telegram. The sanction of the Law Department was received in the office of the Government Advocate on 7-9-1964. No steps were taken or could be taken in the Government Advocate's Office for filing an appeal as the certified copy of the order was not available in the Government Advocate's Office.

The production of the certified copy of the order along with the appeal is necessary tinder the Law and it was presumably on this consideration that the appeal was not filed in the High Court, The Government Advocate's Office waited till 11-9-1964 for the certified copy of the order. The papers were then put up to Mr. Gurtoo, who in his own turn sent the papers to the officiating Government Advocate. The case was then marked out to Shri Raj Narain Munshi, Deputy Government Advocate for doing needful in the matter on 11-9-1964. Neither the officiating Government Advocate nor Mr. Munshi, Deputy Government Advocate contacted the Law Department to obtain the certified copy of the order. On the other hand the Government Advocate's office secured a certified copy of the order from the complainant, who happened to be available in the Government Advocate Office and filed the appeal in the High Court with a certified copy of the order which had been obtained by the complainant.

6. The office report shows that there was an intervening period of 137 days between the date of the judgment, i.e., 30-4-1964 and the date of the presentation of the appeal on 14-9-1964 and that a period of 8 clays was taken in obtaining the certified copy of the order produced along with the appeal. Excluding 8 days the appeal was found late by 35 days. It may be mentioned here that the memo of appeal bears the initials of the Deputy Registrar dated 12-9-1964, and it appears reasonable to infer that the appeal was presented to him on 12-9-1964. Even if the appeal is treated as having been presented on 12th September, 1964 it was late by 33 days.

7. It appears that in the meanwhile the Government Advocate received the certified copy from the Law Department on the 19th September, 1964. On the same day Mr. Amrit Raj Mehta, Deputy Government Advocate submitted an application in the High Court stating as follows:

'(1) Because of oversight wrong copy of judgment was filed along with memo of appeal.

(2) The correct certified copy of judgment received from the office of the legal Remembrancer, Rajasthan is submitted herewith, which may kindly be entertained.'

The office received the certified copy of the order but refused to treat the 14th or 12th, as the case may be, as the date of valid presentation of the appeal for the purpose of excluding the period occupied in obtaining the certified copy of the order, which was produced in the Court on the 19th September, 1964. The office report is that the intervening period between the date of the judgment and the date of presentation of the second certified copy of the judgment, i.e., 19th September, 1964 was 142 days. Excluding the prescribed period of 90 days, plus 48 days, the period occupied in obtaining the certified copy the office found the appeal late by 4 days. The office report is dated 31-10-1964. The Government Advocate submitted his reply to the office objection on 2-12-1964 in which the facts mentioned above were stated and it was added:

'That the aforesaid facts and circumstances will show that all diligent steps were taken to file an appeal in time, and that the certified copy of the judgment could not be filed along with the appeal because of the circumstances beyond the control of the appellant and not because of any negligence of the appellant.'

8. The case came up before me on 15-2-1965. 'After preliminary arguments it was found necessary to seek an explanation as to why the Law Department could not despatch the certified copy of the order to the Government Advocate's Office in time. An adjournment was sought to file an affidavit to explain the delay which took place in the office of the Legal Remembrancer in sending the certified copy of the judgment to the Government Advocate. Two weeks' adjournment was granted. The case again came up before me on 2nd March, 1965. Again one week's adjournment was requested and was granted. The State did not choose to produce any affidavit of any officer or the official of the Law Department to explain the delay which occurred in despatching the certified copy of the order to the Government Advocate's Office. On the other hand an application signed by Mr. Raj Narain Munshi, Dy. Government Advocate stating the facts more or less similar to the facts contained in his application presented on 2-12-1964 has been produced before me to-day.

9. I very much regret to say that I have not been able to appreciate the attitude of the State in this case which has not been what it ought to have been. From the very beginning it must have been clear to the State-Appellant that it was necessary for the State to explain why the Law Department took so much time in sending the certified copy of the order to the Government Advocate, but no written statement or much less an affidavit was produced in this behalf. When the case came up before me on 15-2-1965 an adjournment was requested. In spite of two adjournments no affidavit has been produced to explain the delay that occurred in the Law Department in sending the certified copy of the order to the Government Advocate. This only reflects vacillation or indecision or in the alternative indifference and in either case accompanied by inaction. Such an attitude cannot be helpful to the State's cause, and can only lead to the loss of time of this Court and can be an obstacle in the prompt and quick disposal of cases. The need for quick and prompt dispensation of Justice by this Court is being stressed in all responsible quarter, and this Court earnestly desires and expects responsible and active co-operation from all litigants particularly the State which has been emerging out as a major litigant in these days. It is expected that moves indicating laches and dilatoriness would be avoided.

10. Proceeding further with the case it appears to me that a departure from the normal and ordinary course made by the Law Department in dealing with the case appears to be responsible for the delayed production of the certified copy of the order in this Court and the consequent delay in the valid presentation of the appeal. The Law Department sent the relevant papers to the Government Advocate at Jodhpur for expressing an opinion, whether the case was fit one for an appeal or not. These papers were received in the Government Advocate's office on 28-8-1964. Within a few days without any prior discussions or contact with the Law Officer, who was scrutinising the papers the Law Department sanctioned a Government appeal. The Law Department did not even inform the Government Advocate by telephone or by a telegram and consequently the Government Advocate's Office remained ignorant of what was happening in the Law Department and sent the papers including the certified copy of the order to the Law Department on 4-9-1964. The result was that when the Government sanction for appeal was received in the Government Advocate's Office a proper appeal could not be presented in the High Court in the absence of the certified copy of the order in the Government Advocate's Office. The departure from the ordinary and normal course made by the Law Department in the present case being responsible for the delay in the valid presentation of the appeal in this Court it was expected that the Law Department would indicate the circumstances under which the departure from the ordinary and normal procedure was made. The Law Department, however, has not chosen to place the circumstances before me.

It was suggested by the counsel for the State that the decision for filing an appeal in the Law Department must have been taken on some initiative made by the private complainant and on account of consideration of limitation. The counsel for the State was, however, faced with the facts: (i) that the Law Department did not convey the decision on telephone or by a telegram and that there was no appropriate follow-up action, and (ii) that the handling of the case by the State with regard to the production of the certified copy in this court was anything but satisfactory, and he had no satisfactory explanation for the same. In the absence of any affidavit or a written document and in view of the circumstances indicated above one cannot unreservedly accept the oral suggestion made by the counsel for the State and is merely left to speculate. The requirements of a Judicial and objective approach dissuade me from making any speculation and all that I need observe is that the State did not choose to explain the departure from the ordinary and normal course leading to the delayed presentation and that this should be one factor to be considered along with the other circumstances of the case for deciding the precise and the crucial question, viz., whether the State has been vigilant and diligent in the matter of this appeal and whether the delay occurred on account of circumstances reasonably beyond the control of the State seas to justify the benefit of Section 5 of the Limitation Act.

11. In dealing with this question it is pertinent to bear in mind that the officer in the Law Department, who took decision for filing a Government appeal or who in the alternative was responsible for the Government decision must have been aware that the necessary papers including the certified copy of the order were in the office of the Government Advocate at Jodhpur pending scrutiny by a law officer. It did not require much imagination, experience and fore-sight to have anticipated (i) the formation by the Law Officer of a contrary opinion nor favouring a Government appeal; and (ii) the possibility of the papers in the Government's Office including the certified copy of the order being despatched along with the opinion, before the receipt of the letter of sanction and (iii) the papers crossing each other while in transit in the Postal Department and as such one naturally is led to inquire whether the officer, who had taken the decision for filing a Government appeal took the proper steps to avoid delay on account of the possibilities indicated above.

12. In the first instance the officer, who was responsible for a Government decision sanctioning the appeal should have discussed the matter with tie Law Officer, who was scrutinising the case or at any rate he should have immediately communicated the decision to the Government Advocate's office on phone or by a telegram. Had this been done the Government Advocate's Office would not have despatched the papers including the certified copy of the order along with the opinion on 4-9-1964 and there would have been no difficulties of any kind.

13. Even if this course was not thought of or was not considered feasible still the officer should have made appropriate directions to ensure presentation of appeal in time and for the prompt return of the certified copy of the order to the Government Advocate's Office if received in the Law Department at any time. Now if the officer, who was responsible for the decision thought the Government decision as final and irrevocable and not liable to reconsideration even on receipt of a contrary opinion by the Law Officer, he should have made a direction that the certified copy of order, if received, might be immediately returned to the Government Advocate's Office. If, on the other hand, he chose to keep an open mind he should have passed an order directing that the papers be immediately put up for fresh decision and orders. Similarly it was necessary for the office of the Law Department to have taken appropriate action for the return of the certified copy of the order to the Government Advocate's office. The State Government has not chosen to say whether any such steps were taken or not. All this implies want of due care, attention and foresight particularly in the Law Department which is manned by officers of the Judicial Department, who are expected:

(i) to show judicial approach;

(ii) to undertake thorough comprehensive and yet objective examination of the matters coming before them, and

(iii) to adopt precise and well defined line of action even though they are temporarily in charge of administrative functions in the Law Department.

14. I need not, however, entirely rest my decision on these considerations and proceed further with the case. The certified copy of the order was despatched from the Government Advocate's office to the Law Department on 4-9-1964, and it took 15 days in the Law Department to make it available to the Government Advocate's Office. No explanation for such an inordinate delay is forthcoming. It is significant that the Government Advocate's office also took no precautionary steps to contact the Law Department and obtain the certified copy of the order. If the Government Advocate's Office was under an expectation that the Law Department having sanctioned the appeal would return the certified copy immediately and if this expectation cannot be said to be wrong or unfounded this Court will be fully justified in expecting from the Law Department a satisfactory explanation for the delay in despatching the certified copy and in drawing an inference of lack of diligence in the absence of such explanation. If, on the other hand, the Government Advocate's Office expectation was not reasonable or well founded, there is no explanation for the absence of proper action in the Government Advocate's Office. On a consideration of all the facts and circumstances of the case, it appears to me that there has been no proper cordinated action and there is no evidence of determined and a purposeful line of action. There have been laches which could have been easily avoided with little imagination and foresight. In the circumstances the State-Appellant has failed to make out any satisfactory cause for extending the benefit of Section 5 of the Limitation Act.

15. The counsel for the State contended in general manner that the functions of the State are of a peculiar nature and that the Government is entitled to some special consideration in the matter of application under Section 5 of the Limitation Act. Such an argument is often made in the cases coming before me. I have, therefore, thought it proper to examine the legal position. In this connection I have noticed a few cases viz.:

1. Secy. of State v. Gurmukhdas, AIR 1929 Sind 211; 2. Union of India v. Ram Kanwar, AIR 1958 Punj 365; 3. Collector of Bilaspur v. Santu, AIR 1962 Him Pra 16; 4. K.R. Beri and Co. v. Employees' State Insurance Corporation, AIR 1962 Punj 308; 5. Punjab State v. Gopalsingh, AIR 1964 Punj 154.

16. In AIR 1929 Sind 211 the Sind Judicial Commissioner's Court was considering applications under Section 5 of the Limitation Act in connection with the appeals against an order in a land acquisition enquiry. The Court allowed the applications and made the following observation:

'The Act makes no distinction between Government and a private individual but it is obvious that in considering au application under Section 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 public 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.'

The court also referred to special difficulties in connection with Sind cases which probably were not felt in any other province.

17. An opposite opinion was, however, expressed in AIR 1958 Punj 365. The legal position was stated as follows:

'The law of limitation operates equally for or against a private individual as also Government. No special indulgence can be shown to the Government which in similar circumstances is not to be shown to an individual suitor. If it is felt that the ministries delay matters so much that the period of limitation already prescribed in the Limitation Act are not long enough for the Government or its agents, then the better course is to obtain amendment of the law through the Legislature rather than to make an application to the Court invoking its power under Section 5 of the Limitation Act.

I am definitely of the opinion that delays in Government offices are no justification for invoking the power of the Court under Section 5. This circumstance cannot be taken into consideration in favour of the appellants. It is no sufficient cause from any consideration for enlarging the period of limitation for filing the present appeal.'

This case was followed by the Himachal Pradesh Judicial Commissioner in AIR 1962 Him Pra 16 which clearly dissented from the view taken in the Sind case.

18. Another Division Bench of the Punjab High Court had also an occasion to consider the legal position in connection with applications under Section 5 of the Limitation Act. Mr. Inder Dev Dua, J. speaking for the Court recorded the following conclusions:

'...... the statute makes no distinction between Government and private individual except when it so states, for instance in Section 27 and Article 149, Limitation Act, but it does not necessarily follow that while considering the provisions which confer a discretion on the Court to condone delay in a given case for sufficient reason, the Court is debarred as a matter of law, from drawing distinction between a private individual and Government.'

The learned Judge also noticed a distinction between the Government functions and individual functions and made observations more or less similar to those mentioned in AIR 1929 Sind 211.

19. Lastly it was observed as follows:

'......therefore, I do not find it easy to persuade myself to subscribe, in an unqualified manner to the (view and I speak with utmost respect) that delay in Government offices can, never, as a general rule, constitute a relevant consideration in determining the sufficiency of cause for condoning delay; each case must depend on its own circumstances and the Court has to determine in a practical way as to how far a litigant has been reasonably diligent in prosecuting his case.'

On the facts of the case the Court held that the State failed to make out a case for benefit under Section 5 of the Limitation Act and that the lower court was wrong in giving benefit of Section 5 of the Limitation Act to the State. The appeal was accepted and the decision of the lower court was reversed.

20. The last case to be referred is AIR 1964 Punj 154. In that case the counsel for the State suggested that some special latitude should be shown to the appellant because there is certain routine fixed in the Departments of the appellant's Government which routine has been responsible for the delay. Repelling the argument the learned Judge observed as follows:

'......The argument largely proceeds on the assumption that to obtain a benefit under Section 5 of the Limitation Act all that is necessary is to state why delay occurred in the filing of the appeal and not that the appellant is to satisfy the court that there was good and sufficient cause for the delay. I am not persuaded that this is a correct approach to the question, for what Section 5 of the Limitation Act says is that an appeal may be admitted after the period of limitation provided the appellant is in a position to satisfy cause for not preferring the appeal within time, and a mere statement of the reasons which led to the delay cannot by itself amount to such satisfaction ......'

21. On a review of these cases and on a consideration of the fundamental principles of the Law of Limitation I have thought proper to reach and record the following conclusions:

(i) That the fundamental principle of the; Law of Limitation is that the rules of limitation are intended to induce claimants to be prompt in claiming relief and unexplained delay or laches on the part of those who are expected to be aware and conscious of the legal position and who have facilities for proper legal assistance can hardly be encouraged or countenanced.

(ii) That Section 5 of the Limitation Act makes I no distinction between the State and the individual with regard to the need of establishing a sufficient cause. An approach to the applications by the State under Section 5 of the Limitation Act cannot be fundamentally different from the approach to the individual cases;

(iii) That the discretion given to courts by, Section 5 of the Limitation Act cannot be crystallised into a rigid rule of law and there can be no positive rule as to an absolute statement of the cases in which only the discretion of the Judge or court should be exercised to enlarge the time for appealing and that in each individual case, the surrounding circumstances must be looked into. Consequently in determining the individual cases it may be permissible to notice the distinction between the functions of the State and the individual's functions, as indicated in the two cases: (AIR 1929 Sind 211 and AIR 1962 Punj 308).

(iv) That in practical application the distinction should be broadly observed as follows: In the case of an individual delay by itself is considered as an evidence of laches and an individual litigant while seeking to establish sufficient cause must also rebut the presumption of laches arising out of mere delay. In the case of the State such an additional burden to rebut a presumption of laches on account of mere delay should not be imposed. In other words a satisfactory explanation of delay by the State may be a little liberally accepted in the absence of any presumption of laches.

(v) That the view expressed in AIR 1958 Punj 365 and AIR ,1962 Him Pra 16 is rather unduly strict and need not be subscribed to. In appropriate cases and on proper explanation delay in the case of State may be condoned even though in similar circumstances the delay by an individual cannot be condoned.

(vi) The other extreme view that the State need not satisfy the Court that there was a good and sufficient cause for the delay and need briefly state why delay, occurred in the filing of the appeal cannot be accepted.

22. Lastly it may be permissible to make out a distinction between the State appeals against acquittals (where a special period of limitation has been prescribed as contrasted with the period of limitation for individual litigants) and appeals in other matters where the same period of limitation has been prescribed for the State and the Government (individual?). It may be pointed out that the legislature considering the special nature of the functions of the State provided a different and special period of limitation in State appeals against acquittals. Initially the law of limitation had provided 6 months as the period of limitation. The legislature later on realising the need of quick disposal of criminal cases reduced the period of six months to a period of 3 months. The prescription of special period of limitation for the State and the legislative policy indicated in the subsequent amendment reducing the period of six months to three months do not in my opinion warrant an indulgent and special attitude towards the State under Section 5 of the Limitation Act in appeals against acquittal.

23. These are the general rules of guidance and individual cases should be determined on their own facts and circumstances in the light of the above guiding principles. It is evident that the State has also to make out a sufficient cause for claiming benefit under Section 5 of the Limitation Act.

24. In the present case I have arrived at a definite conclusion that the State has not been vigilant and diligent in the matter of this appeal, and the State has failed to make out a case under Section 5 of the Limitation Act. I do not feel justified in condoning the delay. The appeal is consequently dismissed.


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