State (Nct Of Delhi) vs Ahmed Jaan

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

4 by 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

5 court. 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. 6

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.

7

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

8 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

9 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

10 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

11 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

12 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

13 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

14 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

15 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

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. (Dr. MUKUNDAKAM SHARMA)

17 New Delhi, August 12, 2008

18