Manickam vs State, by R.D.O., Coimbatore

Sathar Sayeed, J.—The above revision is filed by the petitioner questioning the order of the Judicial First Class Magistrate, Coimbatore, in

C.M.P. No.1699 of 1980, dt. 25th April, 1980 and excusing the delay in filing the complaint against the petitioner by the respondent.

It appears that a complaint against the petitioner was filed by the State, represented by the Revenue Divisional Officer, Coimbatore under S.

200(a), Cr. P.C. for an offence alleged to have been committed by the petitioner under S. 323, I P.C. In the complaint, it was contended by the

respondent that the petitioner as an official of the Police Force, on 27th November, 1978 in the premises of the Sessions Court, kicked one Smt.

Sivalingam, wife of Rengaswami, thrice on her abdomen for the reason that she being a prosecution witness in S.C. No. 32 of 1978 turned hostile

in the murder case against one K.D. Sundakkayan with the result, she swooned and fell down. It was further stated in the complaint that on receipt

of the First Information Report, the respondent herein took up the investigation on the same day, and his enquiry revealed that the petitioner herein

has kicked with his booted legs on the lower abdomen of Smt. Sivalingam causing injury on her person Under the circumstances the respondent

herein in his complaint prayed that the Court may be pleased to take the complaint on file u/s 323,I.P.C. and dispose of the same according to law.

Certain witnesses were cited in the complaint.

I have narrated the facts merely to show that as per the averments in the complaint, the incident is said to have taken place in November, 1978.

Along with the complaint, a petition under S. 473, Cr. P.C. was filed by the complainant/respondent herein contending that the offence alleged

against the petitioner herein is one under S. 323,I.P.C. and that there is a delay in filing the complaint which is an ""administrative delay"".

Though it was opposed by the petitioner on the question of limitation, the Judicial First Class Magistrate, Coimbatore, by his order, dt.25th

April, 1980, allowed the petition filed by the State and condoned the delay of 17 months in filing the complaint against the petitioner. The learned

Magistrate observed that-

in the interests of justice, I am of the view the delay in filing of the complaint by the complainant against the accused is to be condoned under S.

Crl. P.C. With these remarks, the application is allowed.

As stated above, it is this order of the Magistrate that is questioned by the petitioner in the above revision.

Learned Counsel appearing for the petitioner contends that the complaint filed against the petitioner by the respondent is barred by limitation and

the delay in filing the complaint against the petitioner on the sole of ground of ""administrative delay"" without any details being mentioned in the

petition for excusing the delay or without furnishing sufficient particulars or sufficient cause being shown by the respondent, cannot be condoned

either under S. 473, Crl. P.C, or under S 5 of the Limitation Act, and the trial Court has erred in law in allowing the petition filed by the respondent

and in condoning the delay of 17 months. The Learned Counsel for the petitioner contends that even under S. 473, Crl P.C. what is contemplated

is. that the Court may take cognizance of the offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances

of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice and the mere statement that there is

an ""administrative delay"" without any detailed particulars as to how the delay has taken place, cannot be a ground to condone the gross delay as in

the instant case.

The question that arises for consideration in this revision is, whether on the averments of the petition filed by the State, the delay of 17 months

can be excused, which delay is said to be purely an administrative delay"" and nothing else?

It is not disputed that there is a delay of 1"" months in filing the complaint against the petitioner herein under S 323, I.P.C. It is also clear that if

the offence is proved by the respondent herein against the petitioner, the petitioner is punishable with imprisonment for one year or fine of Rs.

1,000, or both. It is also further clear that under S. 468, CrI. P.C. no Court shall take cognizance of an offence of the category specified in sub S.

(2) after the expiry of the period of limitation and the period of limitation shall be one year, if the offence is punishable with imprisonment for a term

not exceeding one year, learned counsel appearing for the petitioner contends that the petition filed by the State to excuse the delay on the ground

of ""administrative delay"" and that the delay on the part all the complainant in filing the complaint after 17 months against the petitioner, cannot be

sustained. Learned Counsel contends that in the absence of detailed facts in the petition filed by the respondent, a mere statement that the delay in

riling the complaint is due to ""administrative delay"" on the part of the respondent, cannot be sustained when the petitioner has acquired a legal and

independent right in his favour under S. 468, Crl. P.C. He further contends that there is no sufficient cause for excusing the delay and that the trial

Court has grossly erred in allowing the petition filed by the respondent and condoning the delay under S. 473, Crl. P C. There is some force in the

contention of the petitioner.

The words ""sufficient cause"" cannot be Construed too liberally on the averments of the petition filed by the respondent merely because the party

in default is the Government. S. 5 of the Limitation Act makes no distinction between the State and the individual or an institution with regard to the

need of establishing a sufficient cause. The law of limitation operates equally for or against a private individual as also a Government. The question

of existence of sufficient cause is one to be decided from the facts and circumstances of the particular case and the party concerned should show

justifiable and sufficient grounds to excuse the delay. If sufficient cause for excusing the delay is shown, the applicant is not entitled as a matter of

right for condonation of delay, but yet discretion is given to Court to condone the delay. The courts have to use their judicial discretion in excusing

the delay in the matter soundly ""in the interest of justice"" on the facts of the case. ""Sufficient cause"" must be a cause which is beyond the control of

the party invoking the aid of the section. A cause for delay which a party could have avoided by the exercise of due care and diligence or attention

cannot be said as a sufficient cause. The approach of the Court should be from the point of the petitioner who files a petition for excusing the delay,

keeping in view the inherent right accrued by the other party which he has acquired by not filing the case in time.

In the instant case, not even an affidavit but only a petition under S. 473, Cr. P.C. has been filed to condone the delay on the ground of

administrative delay"". Even under S. 473, Crl. P.C, the Court which hear such petition must be convinced whether the delay has been properly

explained by the person who comes before Court or in the alternative whether condonation is necessary in the interest of justice. These are two

distinct heads under which the Code has invested a residual discretion in the court to take cognizance of an offence after the expiry of the period of

limitation. It is impossible to unfold judicial discretion in a straitjacket.

From the above conspectus it emerges clear that each case his to be decided on the facts before the court. Judicial discretion means, doing

what is just and proper under the circumstances. Litigation is no hide and seek game, but a search for truth and parties must place all the cards on

the table. S. 473, Crl. P.C enables the Court to extend the period of limitation if it is satisfied that the delay has been properly explained. It must be

noted that once the period of limitation prescribed under the Code or any other law for launching a prosecution has expired, certain legal right

accrues to the person who obtained a decree as in the instant case to the accused to the effect that there would be no prosecution thereafter.

When the Court extends time, it should be remembered that it is interfering with legal rights of the accused which have vested in him by virtue of the

expiry of the period of limitation. According to S. 473, Cr. P.C. if the Court is satisfied on the facts and in the circumstances of the case placed

before it that the delay has been properly explained or that it is necessary so to do in the interests of justice, it may take cognizance of an offence

after the expiry of the period of limitation. That is to say, the delay could be condoned in the interests of justice, if the court is satisfied on the facts

and in the circumstances of the case that the delay has been properly explained. In the instant case before us, the reason mentioned in the petition

for condoning the delay is ""administrative delay"", and the Court under the circumstances has to exercise its judicial discretion not on the bald

averment of ""administrative delay"". Discretion when applied to a Court of justice should be a sound discretion, guided by law. No detailed or

convincing explanation or averments have been made by the respondent herein or found in the petition filed in the instant case, as to what is the

administrative delay, as to how the delay has occurred, as to when and on which date or dates speedy legal advice or opinion was sought for to file

or not to file a complaint against the petitioner. In the absence of such relevant convincing material particulars in the petition filed by the respondent

herein to excuse the delay of 17 months in filing the complaint against the petitioner, this Court is unable to determine judicially the truth of the

version in the petition, nor the facts pleaded in the petition constituted ""a sufficient cause"" for condoning the delay as contemplated by S. 5 of the

Limitation Act or under S. 473, Crl. P.C.

As stated already, S. 473, Crl. P.C, empowers the Court to extend the period of limitation in certain cases. But, that also depends on the facts

of the particular case and also on the satisfaction of the court on such facts pleaded and in the interest of justice. The discretion vested in the court

of law under S. 5 of the Limitation Act or under S. 473, Crl. P.C., must be exercised on judicial principles and not in an arbitrary, vague or fanciful

manner. The law of limitation operates equally for and against a private individual as also a Government. No special indulgence can be shown to

the Government which, in similar circumstances, is not shown to the individual suitor. A court of law should treat the Government and the private

individual alike. Just because a petition is filed by the respondent contending that there is an administrative delay in filing the complaint, it cannot be

a ground to excuse the delay in filing the complaint against the petitioner in the absence of proper or convincing or detailed explanation as to how

the delay has occurred and as to where, and how long the papers were held up. The trial court in a cavalier way has observed that in the interest of

justice the delay of 17 months in filing the complaint against the petitioner should be condoned. Can such a delay be condoned if there is no

proper, reasonable or satisfactory explanation given by an individual ? I am afraid, not. As stated above, what is applicable to an individual is

applicable to the State and the person who comes to Court to seek condonation of delay should aver proper and convincing reasons before the

court in order to come within the meaning of ""sufficient cause"", to invoke the aid of S. 5 of the Limitation Act. The same is the view followed by a

Bench of this Court consisting of Natarajan and Maheswaran, JJ., in Crl.M.P. No. 6847of 1979, dt. 9th April, 1981, and Gokulakrishnan and

Varadarajan, JJ., as they then were, in Crl. M.P. 4655 of 1977, dated 17th February, 1978. I am of the view, considering the tenor of the petition

filed by the Revenue Divisional Officer, Coimbatore, who is the respondent herein, and considering the petition as such, which is lacking in

material particulars as to how and under what circumstances there was a delay in filing the complaint against the petitioner, more particularly when

the respondent contends that it is an administrative delay, the period of limitation prescribed under the Act does not qualify the respondent in

seeking the condonation of delay under S. 5 of the Limitation Act nor under S. 473, Crl. P.C. The provisions of S. 473, Crl. P.C. under which the

respondent has filed the petition should be liberally construed in the same way as S. 5 of the Limitation Act so as to advance Justice in the

''absence of negligence or want of bona fides, but not too liberally, merely because the Government is the prosecutor of the prosecution. As

pointed out above, in construing S. 5 of the Limitation Act, the important considerations that require to be borne in mind are, the expiration of the

period of limitation prescribed either for lodging a complaint or for filing an appeal or revision which gives rise to a legal rights in favour of the

decree-holder, to treat the decree as binding between the parties and this legal right obtained and accrued by such person should not be

lightheartedly disturbed. Considerations of bona fides and due diligence are always material and relevant when the court is dealing with such

applications. A bald statement like ""administrative delay"" as contended by the respondent in his petition for excusing the delay cannot be said to be

a sufficient cause to excuse the delay of 17 months in filing the complaint against the petitioner. Considering the averments of the petition filed by

the respondent, I am of the view that the impugned order of the Judicial First Class Magistrate, Coimbatore, has to be set aside and is accordingly

set aside. The petition filed by the respondent herein to excuse the delay is dismissed and this criminal revision case is allowed.

In conclusion, I cannot but add that if the allegations levelled against the petitioner herein by the Revenue Divisional Officer, Coimbatore, are

so proved to be correct, it is for the higher officers of the Police Force to take departmental action against the petitioner so that recurrence of such

acts as alleged may not be committed by the custodian of law and order.