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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: COL.  SUJAN SINGH AND ORS.

DATE OF JUDGMENT: 15/04/1964

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GUPTA, K.C. DAS DAYAL, RAGHUBAR

CITATION:  1964 AIR 1897            1964 SCR  (7) 734  CITATOR INFO :  E          1968 SC 733  (7)

ACT: Criminal  Trail-sanction  by  Central  Government-Proceeding pending  before special Judge-Accused asking for  production of  document from the Union Government Privilege claimed  by Government-Special   Judge  and  High  Court   in   revision rejecting  the claim of privilege-Order if a  "final  order" -Petition for grant of  certificate-Maintainability-Petition for special leave barred by limitation-Petition for excusing delay   on  wrong  legal  advice-If  a  sufficient   ground- Constitution  of India, Art. 134(1)(c)-Supreme Court  Rules, 1959, 0.21, r. 1(1).

HEADNOTE: The respondents were prosecuted in the court of the  special Judge   after   obtaining  the  sanction  of   the   Central Government,   for  an  offence  under  s.  6(1)(a)  of   the Prevention of Corruption Act, They put an objection that the sanctioning  authority did not apply his mind properly  when sanction  was  granted.  One of the  respondents  asked  the Court to summon the concerned record of the Home  Department for, it would substantiate his assertion that the  concerned officer did not apply his mind earlier in according sanction for  his  prosecution.   The  Secretary  Ministry  of   Home Affairs, claimed privilege.  The Special Judge and the  High Court  in  revision rejected the claim of privilege  of  the Union  Government.  The appellant than filed a  petition  in the  High Court for grant of a certificate.  The High  Court held  that  the order sought to be appealed against  was  an interlocutory  one  and,  therefore, the  petition  was  not maintainable  under  Art.  134(1)(c)  of  the  Constitution. Against  the  order  of  the  High  Court  in  revision  the appellant  filed  a  petition for special  leave  to  appeal stating that he applied for a certificate to the High  Court but  it  was refused.  The appellant did not  bring  to  the notice  of  this Court that the petition for  special  leave ",as  out  of time.  The Registry could not  point  out  the defect as in the petition it was stated that the application under Art. 134(1)(c) was dismissed by the High Court without indicating on what ground it did and this Court assumed that

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it  was  in time and granted special leave.   However  after obtaining the permission of this Court the appellant filed a petition  for excusing the delay on the ground that the  Law Officer,  who  was  at the relevant time in  charge  of  the matter  in the High Court, advised the Government  that  the order under appeal was a final order and that an application should be filed under Art. 134(1)(c) of the Constitution and that the appellant acted bonafide.  The appellant  contended (1)  that  the  order  of the High  Court  in  the  criminal revision  was a final order within the meaning of  Art.  134 (1)(c) of the Constitution and (2) that the rule 1(1) of  0. XXI of the Supreme Court Rules does not say in express terms that  the order of refusal to give a certificate must be  on an  application which is maintainable and, therefore, if  in fact  the High Court refused to give a certificate,  whether on  merit,, or on the ground that it was  not  maintainable, the party could take advantage of the said rule. Held  (per  K. Subba Rao and K. C. Das Gupta, JJ):  (i)  The order under appeal was not a final order within the, meaning of  Art. 134(1) of the Constitution.  It did not purport  to decide 735 the  rights of the parties, namely, the State U.P.  and  the accused.   Assuming that it decided some right of the  Union Government, the Union Government was neither a party to  the criminal  -proceedings nor was it a party either before  the High Court or before this Court.  The indirect effect of the order of a third party to the proceedings, who did not  seek to  question  that order, did not deprive the order  of  its interlocutory character. Seth  Premchand  Satramdas v. State of Bihar  [1950]  S.C.R. 799, relied on. (ii) Rule  1(1) of 0. XXI presupposes that  the  application for the certificate is maintainable and the Court refuses to give  it on the ground that the condition laid down in  Art. 134(1) of the Constitution have not been complied with.   On a reasonable Interpretation of the rule, it could only  mean that  the  refusal  ,of  the  certificate  must  be  in   an application maintainable under the said Article. (iii)The  order ex facie was an interlocutory order  and  so far  as  the Government of U.P. was concerned it  could  not possibly be held that any of its rights had been affected by that  order.  In the circumstances, it must be held  that  a wrong  legal advice is not a sufficient ground for  excusing the  delay,  and the appeal therefore must be  dismissed  as barred by limitation. Per  Raghubar Dayal, J. (dissenting),: The appellant  should be given the advantage of the opinion of its legal  advisers as  the  error, if any. could not be said to be  of  such  a character  which  a legal adviser could  not  have  possibly given. The  rule does not expressly state that limitation would  be counted  from  the date of refusal of the  certificate  only when  an application for a certificate under Art. 134  would be maintainable.  It is true that an application under  Art. 134  is  contemplated  to  be  an  application  against  the judgment,  final order or sentence in a criminal  proceeding and  that  refusal  of a certificate  under  Art.  134,  for purposes of rule 1(1) of 0. XXI, refers to the refusal of an application  for  certificate against  the  judgment,  final order  or sentence in a criminal proceeding.  But this  does not necessarily mean that the rule will not be applicable in cases of refusal of a certificate when one applied for it on the  ground  that the order sought to  be  appealed  against amounted  to a judgment, final order or sentence  while  the

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High  Court  came to a different opnion, The rule  does  not specifically  state  that  the date of the  refusal  of  the certificate  would  be  taken to be the  starting  point  of limitation  only when the High Court refuses certificate  on the  ground  that it was not a fit case for  appeal  to  the Supreme  Court.   If it were so, the rule  would  have  been limited to those cases,.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 71  of 1963.   Appeal by special leave from the judgment and  order dated November 23, 1962 of the Allahabad High Court (Lucknow Bench at Lucknow) in Criminal Revision No. 251 of 1962. S T. Desai, O. P. Rana, Atiqur Rahman and C. P. Lal, for the appellant. C.   B. Agarwala, Ravinder Narain, O. C. Mathur and J. B. Dadachanji, for respondents nos. 1 and 2. April  15, 1964.  The Judgment of SUBBA RAO and DA,’;  GUPTA JJ.  was  delivered  by  SUBBA  RAO  J.  RAGHUBAR  DAYAL  J. delivered a dissenting Opinion. 736 SUBBA  RAO,  J.-This  appeal by  special  leave  raises  the question of the privilege raised by the Government of  India in respect of certain documents called for from its Home De- partment  in a criminal proceeding pending the court of  the Special Judge, Anti-Corruption (East), U.P., Lucknow. The  respondents  were prosecuted in the said  Court,  after obtaining  the sanction of the Central Government  under  s. 197 of the Code of Criminal Procedure, for an offence  under s. 6(1)(a) of the Prevention of Corruption Act, 1947 (Act 11 of  1947).  An objection was taken before the said court  on behalf of the respondents that the sanctioning authority did not   apply  his  mind  properly  when  sanction   for   the prosecution  was  granted.  It was stated on behalf  of  the respondents  that  on a representation made by  one  of  the accused, Col.  Sujan Singh, for reconsideration of the order of  his  prosecution,  the  Deputy  Secretary  in  the  Home Department  reconsidered the matter and made notings on  his application to the effect that the sanction accorded earlier for  his  prosecution was given on  insufficient  data.   He filed a petition before the Special Judge to summon the con- cerned record of the Home Department on the ground that  the said  record would substantiate his assertion that the  con- cerned officer did not apply his mind earlier in  according, sanction  for his prosecution.  The Secretary,  Ministry  of Home  Affairs,  claimed  privilege on the  ground  that  the production of the record containing the said notings of  the Deputy Secretary would not be in the interests of the State. The  Special Judge in the first instance and the High  Court in  revision re-jected the claim of privilege raised by  the Union  Govern-ment.  The  State of U.P.  has  preferred  the present  appeal  by special leave against the order  of  the High Court. The respondents filed criminal petition No. 149 of 1964  for condonation of delay in filing appearance and the  statement of case.  The facts relevant to this application are briefly as  follows.   Respondents  1  and  2  received  the  notice granting  special leave by this Court on January  16,  1964. After  the receipt of the notice they contacted their  local advocate at Lucknow and, on his advice, the 1st  respondent, along with his local advocate, came to Delhi on January  28, 1964,  and made necessary arrangements with Messrs.   J.  B. Dadachanji   &  Co.,  Advocates.   On  January   16,   1964,

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respondents  1 and 2 received a notice from the  High  Court intimating  them  that  the records of  the  case  had  been despatched to the Supreme Court.  On February 11, 1964, they filed  their  appearance  and on February  18,  1964,  their statement  of  case.  If January 16, 1964, was the  date  of service  on  them, there would not be any  delay  in  making their appearance or filing their statement of case.  But the notice of the dispatch of the records was served on the learned counsel for respondents 1 and 2 on November 4, 1963.  Under Ch.  V, r. 4(1)(c), read with r. 2, of the Rules of the High Court, Allahabad, where a party  is represented by an advocate, a service of notice of  dispatch of  record  on  such advocate is  deemed  to  be  sufficient service.    As   the  present  appeal  arises  out   of   an interlocutory  order  it  may  be  said  that  the  advocate representing  the  respondents  in  the  High  Court   still continues  to represent them.  We assume for the purpose  of this  case  that the rule is valid and the notice  was  duly served  on  the advocate.  If that be  so,  the  respondents should   have  filed  their  appearance  and  lodged   their statement  of case within a month from the said  date.   But they  filed their appearance on February 11, 1964, which  is clearly  beyond time.  It will be seen from the  said  facts that  the respondents had filed their appearance within  one month from the date of service of notice on them, but beyond time from the date the notice was served on their  advocate. The said delay is not in the presentation of any appeal  but only  in following the procedural steps for making the  case ready for disposal.  We are satisfied by perusing the record that the delay was not due to negligence on the part of  the respondents.   It is not suggested that the appellant is  in any  way prejudiced by this delay.  In the circumstances  we think  that this is a fit case for excusing the  delay.   We excuse the delay in filing respondents’ appearance and  also in lodging the statement of case. Whether the daily of the respondents in entering  appearance is excused or not. we are at the outset confronted with  the situation that this Court gave special leave when the appeal was  prima facie barred by limitation without the  appellant filing  an application for excusing the delay and the  Court excusing  the  same.  A few facts would  make  the  position clear.   The  Judgment  of the High Court  in  the  criminal revision  is dated November 23, 1962.  A certified  copy  of the  Judgment was delivered to the appellant on December  5, 1962.  On December 19, 1962, the appellant filed a  petition in  the  High  Court  of  Judicature  at  Allahabad  for   a certificate  that the case was a fit one, for appeal to  the Supreme  Court.  On February 18, 1963, the High  Court  held that  the  order  sought  to  be  appealed  against  was  an interlocutory  one  and,  therefore, the  petition  was  not maintainable  under Art. 134 (1)(c) of the  Constitution  of India.  On April 16, 1963 the appellant filed a petition  in this Court for special leave to appeal against the order  of the  High  Court in the criminal revision.  In para.  19  of that  petition it was stated that the appellant  applied  to the High Court for a certificate for leave to appeal to  the Supreme Court but the High Court by order dated February 18, 1963,  refused  to grant the certificate applied  for.   The appeal L/P(D)ISCI-24 738 would be in time if that application was maintainable in the High Court, but would be out of time if that application was not  maintainable  there, for in the latter event  the  time would  have expired on March 5, 1963, and the  appeal  would

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have been out of time by 42 days. Learned  counsel  for the appellant  contends  that  special leave was -ranted on May 10, 1963, and that, as the  respon- dents  have  not taken objection on the ground that  it  was barred by limitation till they filed their petition in  this Court  on  February 26, 1964, we shall not  permit  them  to raise  this  plea  at  this very late  stage.   We  are  not impressed  by this argument.  This is not a case  where  the Supreme  Court excused the delay in filing the petition  for special leave and the respondents with the knowledge of that fact permitted the appellant to incur heavy expenditure  and after  a  long  delay raised the objection at  the  time  of hearing  of the appeal that the delay should not  have  been excused.   But  this is a case where the appellant  did  not bring  to  the  notice of the Court that  the  petition  for special leave was out of time.  The Registry could not point out  the  defect as in the petition it was stated  that  the application  under  Art. 134(1)(c) of  the  Constitution  of India was dismissed by the High Court without indicating  on what ground it did and this Court assumed that the  petition for special leave was in time and gave special leave.  Order XXI, r. 2, of the Supreme Court Rules reads:               "Where  the  period of limitation  is  claimed               from the  date of refusal of a certificate, it               shall  not  be  necessary to  file  the  order               refusing  a certificate, but the petition  for               special  leave  shall  be  accompanied  by  an               affidavit  stating  the date of  the  judgment               sought to be appealed from, the date on  which               the application for a certificate was made  to               the High Court, the date of the order refusing               the  certificate and the ground or grounds  on               which  the  certificate  was  refused  and  in               particular  whether  the  application  for   a               certificate  was  dismissed as  being  out  of               time." Under  the said rule it is incumbent upon the petitioner  to state in the affidavit filed in support of the petition  the date of the order of the High Court refusing the certificate and  the  ground  or grounds on which  the  certificate  was refused.  If the appellant had complied with this rule,  the Registry  of  this  Court would have noticed  the  delay  in filing  the special leave petition and brought that  to  the notice  of  the Court.  In the circumstances there  are  two courses  open  to us: one is to dismiss the  appeal  on  the ground that it was barred by limitation, and the other is to permit the appellant to file 739 a petition at this very late stage for excusing the delay in filing the special leave petition and consider that petition on  merits.  Ordinarily no indulgence should be given  to  a party  when the said party with open eyes filed  a  petition for special leave without disclosing a material circumstance in  the affidavit on the basis of a wrong view of  law  that the  appeal  was  in time.  With  some  hesitation  we  gave liberty to the appellant to file a petition for excusing the delay and they have done so. We shall now consider the petition for excusing the delay on merits,  as this Court would have done if  that  application had been filed along with the special leave petition. Two  reasons are given in the application for  excusing  the delay, namely, (1) the Law Officer, who was at the  relevant time in charge of the matter in the High Court, advised  the Government that the order under appeal was a final order and that an application should be filed under Art. 134(1)(c)  of

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the  Constitution  in the first instance so that  the  other side  might not contend that the appellant did not  approach the  High Court for a certificate, and that the said  advice was accepted by the Government; and (2) the appellant  acted bona fide, as it believed on legal advice that the period of limitation  would be counted from February 18,  1963,  i.e., the  date  of the order of the High Court refusing  to  give certificate and that the order was also filed along with the petition  in  this Court.  The respondents filed  a  counter affidavit  denying  that  the order was a  final  order  and stating  that there was not sufficient reason  for  excusing the delay. The  learned  counsel for the appellant contended  that  the order  of  the High Court dated November 23,  1962,  in  the criminal  revision was a final order within the  meaning  of Art.  134(1) of the Constitution.  The material part of  the said article reads:               "An appeal shall lie to the Supreme Court from               any  judgment,  final order or sentence  in  a               criminal  proceeding  of a High Court  in  the               territory of India..................... We find it difficult to hold that the order under appeal  is a  final order within the meaning of the said  article.   In Seth  Premchand  Satramdas v. The State of Bihar(1)  it  was held  that  an order of the Patna High Court  dismissing  an application under s. 21(3) of the Bihar Sales Tax Act, 1944, to  direct the Board of Revenue, Bihar, to state a case  and to refer it to the [1950] S.C.R. 799,, 804. L/P(D)ISCI-24(a) 740 High  Court was not a "final order".  This  Court,  speaking through  Fazl Ali, J., defined the expression ’final  order" thus:               "It  seems  to  us  that  the  order  appealed               against in this case. cannot be regarded as  a               final  order, because it does not of  its  own               force  bind  or  affect  the  rights  of   the               parties". Though  this definition is given in a different context,  it will  equally  apply to that expression in Art. 134  of  the Constitution.   Can  it be said that the  Special  Judge  in allowing  the  petition of the respondents to call  for  the production  of  a document from the Union  Government  is  a final  order  in  the criminal  proceeding’?   The  criminal proceedings  were  taken  against  the  respondents  for  an offence  under  s. 6(1)(a) of the Prevention  of  Corruption Act, 1947.  The proceedings are now pending in the court  of the  Special Judge.  In the course of those proceedings  the respondents  filed  an application for the production  of  a document by the Union Government and that was allowed by the court.   The  said  order is  only  an  interlocutory  order pending the proceedings.  It does not purport to decide  the rights  of  the parties, namely, the State of U.P.  and  the accused.   It enables the accused to have the said  document duly proved and exhibited in the case.  It relates only to a procedural  step  for  adducing evidence.   The  High  Court confirmed  that order in revision.  But the learned  counsel contents  that it negatives the claim of privilege  made  by the Union Government and, therefore, it decides against  the right of the Union Government to withhold the production  of the document.  Assuming that the order decides some right of the  Union  Government,  on  which we  do  not  express  any opinion, the Union Government is neither a party to the cri- minal  proceedings nor is it a party either before the  High

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Court or before us.  The indirect effect of that order on  a third  party  to  the  proceedings, who  does  not  seek  to question  that  order,  does not deprive the  order  of  its interlocutory character.  We, therefore, bold that the order made  by  the  High Court is not a final  order  within  the meaning of Art. 134(1) of the Constitution. That  apart  the order of the High Court  holding  that  the order  sought  to  be appealed from was not  a  final  order within  the meaning of Art. 134(1) of the  Constitution  has become  final.   The  appellant has  not  filed  any  appeal against  that  order.  It cannot ignore that order  for  the purpose  of special leave and contend that  the  application before the High Court was maintainable and the order made by the  High Court must be deemed to have been made on  merits, though  in  express terms it rejected the petition  for  the reason  that  it was not maintainable.  In either  view  the period  of limitation for filing the special leave  petition could not be computed from 741 the  date of the order of the High Court refusing to give  a certificate  to  appeal to the Supreme Court.   It  is  then contended  that the rule does not say in express terms  that the  said order of refusal to give a certificate must be  on an  application which is maintainable and, therefore, if  in fact  the High Court refused to give a certificate,  whether on merits or on the -round that it was not maintainable, the party can take advantage of the said rule.  We cannot accede to this argument.  The rule presupposes that the application for the certificate is maintainable, and the court refuse to give it on the -round that the conditions laid down in  Art. 134(1) of the Constitution have not been complied with.   If the construction put forth by the appellant be accepted,  it will give room for fraud and ,evasion of the rule.  A  party whose appeal has become barred can file a petition with  the knowledge  that  it  is not maintainable, get  an  order  of dismissal and then seek to take advantage of the  additional period  of  limitation  provided by  the  rule.   The  rule, therefore,   must  be  interpreted  reasonably  and  if   so interpreted.  it  could only mean that the  refusal  of  the ,certificate  must be in an application  maintainable  under the said Article. Now  we  shall  proceed  to  consider  the  application  for excusing  delay  on its merits.  The reason  for  the  delay given  in the affidavit is that the Law Officer was  of  the opinion   that  the  application  for  a   certificate   was maintainable  under Art. 134(1) of the Constitution.  We  do not  see  any justification for this opinion.  There  is  no conflict  of  judicial opinion on this question.   The  only question  that  was before the Law Officer was  whether  the order  sought  to be appealed from was a final  order.   The order ex facie was an interlocutory order and so far as  the Government  of U.P. was concerned it could not  possibly  be held that any of its rights bad been affected by that order. In  the  circumstances  we cannot hold that  a  wrong  legal advice is a sufficient ground for excusing the delay.   What is  more,  on  February  18,  1963,  the  High  Court  in  a considered  order held that the order sought to be  appealed from  was not a final order and, therefore,  an  application under Art. 134(1) of the Constitution was not  maintainable. The time for preferring an appeal from the main order of the High  Court would expire only on March 5. 1963, that  is  to say,  the appellant had 15 days time more for  taking  steps for  preferring the appeal.  Even so no steps were taken  to file the appeal and instead an appeal was filed on the basis of the original opinion of the Law officer that the time can

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be computed from the date of the order refusing to issue the certificate.  From the information supplied  by the  counsel for the appellant it appears that  the Government decided to file the appeal only on March 8,   1963,  i.e.,  after   the time for filing the appeal bad 742 expired.   After further correspondence between the  Govern- ment of U.P. and the counsel representing it in the Supreme, Court  the  special leave petition was filed only  on  April 16,. 1963, completely ignoring the reasons given by the High Court  in  dismissing  the application  for  certificate  of fitness.    On   the  -,said  facts  we  do  not   see   any justification  for excusing the long delay of 42 days.   So. the  appeal  is clearly barred by limitation and  should  be dismissed.  Accordingly the appeal is dismissed. RAGHUBAR  DYAL,  J.-I respondents’ appearance  and  also  in lodging the statement of case be excused. I  am however, of opinion that the  appellant’s  application for  excusing the delay in the presentation of the  petition for special leave to appeal be allowed. It has to be assumed, for the purposes of disposing of  this application,  that  the order under appeal was not  a  final order  within the meaning of that expression in art.  134(1) of the Constitution.  The High Court held so and refused the certificate.  The appellant has neither preferred an  appeal against  that  order nor questioned its correctness  in  its petition for special leave.  The reason urged for  condoning the  delay is that the legal advisers of the appellant  were of  opinion  that  limitation for the  presentation  of  the petition  for  special  leave  would  be  governed  by   the provisions  of  r.  (1)  of  O.XXI,  Supreme  Court   Rules, hereinafter  called the rules, and that in  accordance  with those  provisions the period of limitation would be 60  days from  the  date of refusal of the certificate  by  the  High Court.   If  that rule applied, the petition  for  -,special leave  would  be in time.  The certificate  was  refused  on February 18, 1963, and the special leave petition was filed’ on April 16.  The question then is whether the appellant can take  advantage  of  the  opinion  of  its  legal  advisers, assuming  that this opinion was erroneous.  I am of  opinion that  it  should be given that advantage, as the  error.  if any, cannot be said to be of such a character which a  legal adviser could not have possibly given. The  rule does not expressly state that limitation would  be counted  from  the date of refusal of the  certificate  only when  an application for a certificate under Art. 134  would be maintainable as an application against an order which  is held  by  the High Court to be a ’judgment, final  order  or sentence  in  a criminal proceeding’.  It is  true  that  an application  under  art.  134  is  contemplated  to  be   an application against the judgment. final order or sentence in a  criminal  proceeding, and that refusal of  a  certificate under art. 134. for purposes, of rule 1 (1) of O.XXI. refers to the refusal of an application 743 for  certificate  against  the  judgment,  final  order   or sentence  in  a  criminal proceeding.   But  this  does  not necessarily  mean  that the rule will not be  applicable  in cases of refusal of a certificate when one applied for it on the  ground  that the order sought to  be  appealed  against amounted  to a judgment, final order or sentence  while  the High  Court came to a different opinion.  The rule does  not specifically  -,state  that the date of the refusal  of  the certificate  would  be  taken to be the  starting  point  of limitation  only when the High Court refuses certificate  on

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the  -round  that it was not a fit case for  appeal  to  the Supreme  Court.   If it were so, the rule  would  have  been limited to those cases. Further, there is indication in sub-r. (2) itself that  such was not contemplated by sub-r. (1) of r. 1.. Sub-rule (2) of r. 1 requires the petitioner, in case he desires  limitation to  be counted from the date of refusal of the  certificate, to  mention the -rounds for the refusal of  the  certificate and, in particular, Whether the application for  certificate was rejected as being out of time.  An application presented after the expiry of limitation is not maintainable till  the Court  allows the application for the condonation of  delay. There  must be a reason for providing, in sub-r.  (2),  that the  fact  of the refusal of the certificate  on  -round  of limitation  must be expressed.  The reason is  that  proviso (iii)  to  sub-r.  (1)  of  r.  1  provides  that  when   an application for a certificate is dismissed on the -round  of its  being  out  of time, limitation for  the  petition  for special leave to appeal will not be counted from the date of the dismissal of the application.  There is no corresponding provision  with respect to the limitation being not  counted from  the date of refusal. if the refusal be on  the  ground that the order sought to be appealed against did not  amount to  a  ’judgment,  final order or sentence’  in  a  criminal proceedings. In  view of these considerations, the advice of  the  appel- lant’s  counsel,  even  if it be erroneous,  should  not  go against the appellant to the extent that the delay in filing of  the  special leave petition be not condoned.  I  do  not think  that the omission to state the ground of  refusal  in the  petition for special leave was deliberate in  order  to keep  back  from  the Court that the  application  had  been presented after the expiry of the period of limitation. it  would  not be irrelevant to consider the nature  of  the point  sought  to be urged in the appeal.  The  question  is whether the High Court was right in considering the order of the  trial Court rejecting the claim of privilege raised  by the  Union  Government  in accordance with  s.  123  of  the Evidence  Act  with  respect to the  production  of  certain documents summoned. on the -,round that the disclosure would not be in public 744 interest.   If  the view of the Courts below is  wrong,  the result of refusing to condone the delay would be that public interest  will suffer and that consideration should,  in  my opinion, outweigh the lapse on the part of the appellant  in not  filing the petition for special leave to appeal  within time  and that too,, in view of the wrong advice or  opinion given by its legal advisers. I  would  therefore allow the application  and  condone  the appellant’s  delay  in  presentation  of  the  petition  for special leave.                            ORDER In accordance with the opinion of the majority, the delay in filing  the  special leave petition is  not  condoned.   The appeal is barred by limitation and is dismissed. Appeal dismissed. 745