REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.             OF 2008 (Arising out of SLP (Crl.) No. 131 of 2006)

State (NCT of Delhi) …Appellant

Versus

Ahmed Jaan …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. Leave granted.

2. Challenge  in this  appeal  is  to  the  order  passed  by a

learned Single Judge of the Delhi High Court dismissing the

Criminal  Revision  Petition  (Crl.R.P.No.356/2004)  on  the

ground that there was inordinate delay in filing and re-filing

the revision petition.   

3. Factual position as highlighted by the appellant is as

follows:

The  respondent,  who  is  a  resident  of  Jammu  &,

Kashmir,  was  apprehended  at  Sheila  Cinema  in  Delhi  on

05.03.1997 on the basis of information that he belongs to a

terrorist outfit "Tehreek-ul-Mujahideen' (TUM) of J&K. From

a search of his person and his hotel room, a letter containing

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

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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.

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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

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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

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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.  

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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.  

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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

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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

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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

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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

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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

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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

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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

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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

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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.   

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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)

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New Delhi, August 12, 2008

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