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CASE NO.: Appeal (crl.)  484 of 2005

PETITIONER: State of Nagaland

RESPONDENT: Lipok AO & Ors.

DATE OF JUDGMENT: 01/04/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of S.L.P. (Crl.) 4612 of 2003

ARIJIT PASAYAT, J.

       Leave granted.

       The State of Nagaland questions correctness of the judgment  rendered by a learned Single Judge of the Gauhati High Court, Kohima  Bench refusing to condone the delay by rejecting the application filed  under Section 5 of the Limitation Act, 1963 (in short the ’Limitation  Act’) and consequentially rejecting of application for grant of leave  to appeal. Before we deal with the legality of the order refusing to  condone the delay in making the application for grant of leave, a brief  reference to the factual background would suffice  

       Application for grant of leave was made in terms of Section 378  (3) of the Code of Criminal Procedure, 1973 (in short the ’Code’). A  judgment of acquittal was passed by learned Additional Deputy  Commissioner (Judicial) Dimapur, Nagaland. The judgment was pronounced  on 18.12.2002. As there was delay in making the application for grant  of leave in terms of Section 378(3) of the Code, application for  condonation of delay was filed. As is revealed from the application for  condonation, copy of the order was received by the concerned department  on 15th January, 2003; without wasting any time on the same date the  relevant documents and papers were put up for necessary action before  the Deputy Inspector General of Police, (Head quarters), Nagaland.  On  the next day, the said Deputy Inspector General considered the matter  and forwarded the file for consideration to the Deputy Inspector  General of Police (M&P), Nagaland. Unfortunately the whole file along  with note sheet were found missing from the office and could not be  traced in spite of best efforts made by the department.  Finally it was  traced on 15.3.2003 and the file was put up for necessary action by the  Additional Director General of Police (Headquarter) Nagaland.  The said  officer opined that an appeal was to be filed on 26.3.2003, and finally  the appeal was filed after appointing a special Public Prosecutor.   When it was noticed that no appeal had been filed, the Secretary to the  Department of Law and Justice, Government of Nagaland got in touch with  the Additional General, Gauhati High Court regarding the filing of the  appeal and in fact the appeal was filed on 14.5.2003.  It is of  relevance to note that in the application for condonation of delay it  was clearly noted that when directions were given to reconstruct the

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file, missing file suddenly appeared in the office of Director General  of Police, Nagaland.

       In support of the application for condonation of delay, it was  submitted that the aspects highlighted clearly indicated that the  authorities were acting bonafide and various decisions of this court  were pressed into service to seek condonation of delay.  High Court,  however, refused to condone the delay of 57 days on the ground that it  is the duty of the litigant to file an appeal before the expiry of the  limitation period.  Merely because the Additional Advocate General did  not file an appeal in spite of the instructions issued to him, that did  not constitute sufficient cause and further the fact that the records  were purportedly missing was not a valid ground.  It was noted that  merely asking the Additional Advocate General to file an appeal was not  sufficient and the department should have pursued the matter and should  have made enquiries as to whether the appeal had in fact, been filed or  not.  Accordingly the application for condonation of delay in filing  the appeal was rejected and consequentially the application for grant  of leave was rejected.

       Learned counsel appearing for the appellant\026State submitted that  the approach of the High Court is not correct and in fact it is  contrary to the position of law indicated by this Court in various  cases.  In the application for condonation of delay the various factors  which were responsible for the delayed filing were highlighted.  There  was no denial or dispute regarding the correctness of the assertions  and, therefore, the refusal to condone the delay in filing application  is not proper.  It has to be noted that police officials were involved  in the crime.  The background facts involved also assume importance.   As the police officers attached to a Minister had allegedly killed two  persons, therefore, the mischief played by some persons interested to  help the accused colleagues could not have been lost sight of.  There  is no appearance on behalf of the respondent in spite of the service of  notice.   

As noted above a brief reference to the factual aspect is  necessary. The background facts of the prosecution version are as  followed.   

       On 29th May, 1999 the five accused/respondents comprised the  escort party of a State Cabinet Minister.  The case of the  Accused/Respondents was that at 5.30 p.m. on 29th May, 1999, the  occupants of a Maruti Zen  crossed the cavalcade of the Minister and  shouted at them.  The personal security officer attached to the  Minister saw one of the occupants of the car holding a small fire-arm.   After dropping the Minister, the escort vehicle while proceeding to  another place saw the Maruti Zen and its occupants, who on seeing the  police party tried to escape.  Meanwhile one of the occupants of the  case opened the rear glass and opened fire from his fire-arm.  On  hearing gun fire, the police party also opened fire but the Maruti Zen  escaped and disappeared.  Subsequently, the car was discovered with one  of its three occupants was found to be already dead and the other two  had sustained bullet injuries. Of the two survivors one died  subsequently in hospital and another had to have his arm amputated.

       The said shoot out incident was investigated by the police and a  case under Sections 302/307/326/34 of Indian Penal Code, 1860 (in short  ’IPC’) was registered against the accused/respondents.

       The trial court noted that the ballistic report established that  the bullets were fired from the guns of the accused-respondents. A  finding was also recorded that the respondent exceeded their power for  opening fire, and this constituted misfiescence, but absence of the  post-mortem report was held to have vitally affected prosecution case  it was also held that the accused persons had fired with AK 47 and M 22

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rifles in self defence. Therefore, benefit of doubt was given to them.   A pragmatic approach has to be adopted and when substantial justice and  technical approach were pilled against each other the former has to be  preferred.

       The proof by sufficient cause is a condition precedent for  exercise of the extraordinary restriction vested in the 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.          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.   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 Matu 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.   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.   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

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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.   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.   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

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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.   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.          The above position was highlighted in State of Haryana v. Chandra  Mani and Ors. (1996 (3) SCC 132); and Special Tehsildar, Land  Acquisition, Kerala v. K.V. Ayisumma (1996 (10) SCC 634).       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.   

When the factual background is considered in the light of legal  principles as noted above the inevitable conclusion is that the delay  of 57 days deserved condonation.  Therefore, the order of the High  Court refusing to condone the delay is set aside.   

In normal course, we would have required the High Court to  consider the application praying for grant of leave on merits.  But  keeping in view the long passage of time and the points involved, we  deem it proper to direct grant of leave to appeal.  The appeal shall be  registered and disposed of on merits. It shall not be construed that we

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have expressed any merits on the appeal to be adjudicated by the High  Court.                 Appeal is allowed.