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PETITIONER: THE STATE OF GUJARAT

       Vs.

RESPONDENT: RATILAL LALJIBHAI TANDOL AND ANR.

DATE OF JUDGMENT:       20/08/1997

BENCH: G. N. RAY, G. B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Heard Mr.  S.K. Dholakia,  the learned  senior  counsel appearing fro  the appellant State of Gujarat and Mr. Sushil Kumar, the learned senior counsel appearing as amicus curiae to assist  the Court  in this  matter.  Certain observations made by  the Gujarat  High Court  in disposing  of  Criminal Miscellaneous  Application   No.2941  in   Criminal   Appeal No.375/95 (The State of Gujarat Vs. Ratilal Laljibhai Tandol and Anr.)  are impugned  in this  appeal  by  the  State  of Gujarat.      It has  been submitted by Mr. Dholakia that although on the  proposal   initiated  by   the  public  Prosecutor  for preferring appeal  against  order  of  acquittal  the  State Government takes  the final  decision, the  State Government has felt  that the  opinion of the District Magistrate being in overall  charge of  the district  is necessary for taking appropriate decision by State Government.  Our attention has been drawn  to the  circular dated 23rd July, 1979 issued by the Legal  Department of  the Government  of  Gujarat  being Circular No. Cri/Misc./5/78/24289/A2.  It has been indicated in the  said circular  that the  District Magistrate  who is holding an important position in the District can reflect on several circumstances  indicated  in  the  circular  in  his report so  that the  Government will have the benefit of the experience and  knowledge of  the person who is likely to be most conversant with the local conditions and circumstances, which facts  could not  be shown  or suggested by the Public Prosecutor or the Assistant Public Prosecutor.      Mr.  Dholakia  has  submitted  that  in  view  of  such perception of  the State  Government, it as decided that the proposal to  prefer appeal  against the  order of  acquittal should be  routed through  the District  Magistrate.  In the impugned observations,  the High Court has given a direction that hence  forward no proposal should be routed through the District Magistrate.   Such  direction of the High Court was not appropriate  even though the High Court had anxiety that there  should   not  be   delay  in   preferring  appeal  in appropriate case.      Mr. Sushil  Kumar the  learned senior counsel appearing

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as amicus  curaie has  however submitted  under the  Code of Criminal Procedure, the District Magistrate does not come in the picture  in the decision making process regarding filing an appeal  against the order of acquittal.  He has submitted that here  is no  difficulty in  getting valued opinion from any responsible  officer of  the State  Government including the District  Magistrate but  for such  opinion proposal  to prefer appeal  initiated by  the Public  Prosecutor  is  not required t  be route through the District Magistrate Rule 50 of Law  Officers’ Rules  of 1939  which is  admittedly being followed even  today indicates  that  the  proposal  of  the Public  Prosecutor   is  to   be  considered  by  the  State Government and  final decision  is to  be taken by the State Government.   Such Rule  is also in conformity with the Code of Criminal:  procedure.    Therefore,  the  High  Court  is justified in  indicating that under the law, the proposal is not required  to be  routed through the District Magistrate. mr. Sushil  Kumar has also submitted that the High Court has indicated its  concern flowing  from the experience revealed from the  large number of cases coming before the High Court that because of the procedural wrangles unnecessary delay is often committed  for which some of the appeals are likely to be dismissed  on the  score of  bar of limitation because in some cases  inordinate delay  may not be properly explained. Mr. Dholakia  has however  submitted  that  the  High  Court should have  refrained  from  interfering  with  the  policy decision of the State Government by indicating that the role of the  District Magistrate  is to be bye passed altogether. Such direction  of the High Court will virtually deprive the State Government  to get  the valued opinion of the District Magistrate for cogent reasons.      After taking  into consideration the submissions of the learned counsel it appears to us that the High Court, in its anxiety to  ensure that  the appeals  are  preferred  within reasonable time  and  avoidable  delay  does  not  occur  in processing the  proposal to  prefer  appeal,  has  made  the impugned observations.   Although  we appreciate the anxiety of High  Court that  the appeal  should be  presented within reasonable time and procedural wrangles should be avoided so that unnecessary  and avoidable  delay do not take place, it appears to  us that  some of  the observations  of the  High Court are  quite strong  and should  have been avoided.  We, therefore, modify the observations made by the High Court by deleting the  directions  regarding  the  liability  of  the Public Prosecutor  in the  event of  delay  attributable  to Public Prosecutor.  Such deletion is made by hoping that the Public  Prosecutors  will  be  alive  to  their  duties  and responsibilities and  the State  Government will not fail to take  appropriate   action   against   the   erring   Public Prosecutors.  In modification of the observation of the High Court  it   is  also  directed  that  the  concerned  Public Prosecutor will  initiate the proposal for preferring appeal against the  order  of  acquittal  and  send  such  proposal directly to the Law Department of the State of Gujarat.  But a copy  of the  proposal should  also be  sent by the Public Prosecutor to  the  District  Magistrate  of  the  concerned district so  that the  opinion of the District Magistrate is obtained by  the State  Government before  final decision is taken by the State Government to prefer the proposed appeal. The State  Government should  issue necessary instruction to the District  Magistrate that  the District Magistrate would send  its   views  on   the  proposal  as  expeditiously  as practicable so  that proposed appeal may be filed within the period of  limitation.   If such  opinion  of  the  District magistrate  is   not  received   by  the  appropriate  Legal

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Department of  the  State  within  a  reasonable  time,  the concerned Legal Department will not wait for the response of the District  Magistrate on the proposal given by the Public Prosecutor and  a final  decision will  taken by  the  State Government even  in the  absence of  opinion of the District Magistrate so  that the  proposed appeal  is not  barred  by limitation Needless  to point  out that the State Government should take  final decision  within such  time frame so that reasonable time  is left with the Government counsel to draw up the  memorandum of  appeal and to present appeal petition before the  Court within  the period  of  limitation.    The appeal is accordingly disposed of.  The State Government may issue appropriate  directions consistent  with the guideline indicated in  this order.   We  place  on  record  our  deep appreciation of  the assistance rendered by Mr. Sushil Kumar appearing as amicus curiae in this matter.