State vs A.Maheshwar Rao And Others

Rajasekhar Mantha, J

The appeal is directed against a judgment dated 26th June, 2018 passed by the Special Judge (Sessions Judge) in Special Case No.6 of 2015 (State vs. Shri A.Maheshwar Rao and others) under Sections 420, 120 B of the Indian Penal Code and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The respondents/accused have been acquitted by the Court below.

Re: CRAN No.005 of 2019

CRAN No.005 of 2019 is an application for condonation of delay. Admittedly, the judgment was delivered on 26th June, 2018 and certified copy of the order applied for in 04th February, 2019. Certified copy was obtained on 21st February, 2019 and the appeal has been filed thereafter.

The delay in filing of the appeal and obtaining certified copy has been explained to have occurred due to the hierarchical approvals that are required to be taken for the filing of the aforesaid appeal within the government. There is admittedly some laxity on behalf of the State.

Counsel for the accused/opposite parties vehemently opposes the Section 5 application on the ground that the State is not exempted from the law of limitation and the delay even in applying for certified copy and consequent delay in filing of the appeal would be fatal and does not satisfy the requirement of the expression, 'sufficient cause' under Section 5 of the Limitation Act. Reliance has been placed in an unreported judgment of a Coordinate Bench of this Court in CRAN No.22 of 2017 with CRAN No.23 of 2017 arising out of CRA No.15 of 2017 being the judgment and order dated 9th January, 2018. A copy has been annexed to the affidavit-in-opposition.

This Court has considered the rival submissions of the parties on the issue of limitation. This Court notices a judgment of the Hon'ble Supreme Court in the case of Collector, Land Acquisition Anantag and another vs. Mst. Katji and others reported in (1987) 2 Supreme Court Cases 107. This Court refers to paragraph 3 where the Hon'ble Supreme Court has laid the principles to be applied in so far as the assessment of Section 5 of delay in filing appeals by the State is concerned.

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts 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 of courts. It is common knowledge that this Court has been making a justifiably liberal approach in maters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :

Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay?. 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.

It must be grasped that judiciary is respected not on account of its power to legalize 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 praying for condonation of delay. In fact 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 imbuded 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. In any event, the State which represents the 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 "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even- handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time-barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will not dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

The said decision has been followed later on in the Supreme Court in the case of Esha Bhattacharjee vs Managing Committee of Raghunathpur Nafar Academy and others reported in 2013(2) SCC 649 particularly at paragraphs 21 and 22.

"21. From the aforesaid authorities the principles that can broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4.(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a non-serious matter and hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."

The sum and substance of the aforesaid decisions is, inter alia, that the object and purpose of Section 5 is to ensure that the substantial justice is done and that a delay in filing of an appeal by any appellant whether it is a State or otherwise, should not defeat the ultimate object of an appeal where substantial question of law is involved or substantial injustice has to be remedied. A pedantic approach by the Court in the context of assessment of application under Section 5 has been discouraged. In fact Section 5 of the Limitation Act nowhere specifies the requirement of explanation of delay on day-to-day basis. Be that as it may, the same would not absolve the applicant concerned from explaining the basic reasons for delay.

This Court also notes that the Hon'ble Supreme Court has held that if the merits of the case warrant interference, the laxity of explanation under Section 5 should not stand in the way of admission of an appeal.

For the reasons stated hereinabove, the application under Section 5 of the Limitation Act, being CRAN No.005 of 2019 is hereby allowed and the delay of filing the appeal is condoned.

Re: CRAN No.006 of 2019

CRAN No.006 of 2019 is an application seeking leave to appeal. This Court finds that the impugned judgment has failed to address the true and correct purport of the provisions of Section 13 sub-section (b) of the Prevention of Corruption Act as also some portion of the evidence on record. What strikes this Court particularly is that in respect of the rates for supply of goods to the Municipal Council, the accused had approved the rates prevalent for the year 2012-13. Such rates were rather admittedly higher than the rates revised in the next financial year i.e. 2013-14. The rates admittedly for the year 2012-13 were claimed to have been approved by the accused prior to coming into force of the rates of 2013-12. If that be the case, there was no occasion for the supplier to refund the difference between the higher rates of 2012-13 and 2013-14. There appears to be some serious lacuna in either the approval of the rates of 2012-13 as that stood and the consequent release of 80% of the payment on the date on which the rates of 2013-14 came into force.

The appeal needs to be heard for the reasons stated hereinabove. Leav is, therefore, granted to the appellant to file the instant appeal and CAN No.006 of 2019 is hereby allowed.

Re: CRA No.003 of 2019

CRA No.003 of 2019 shall be heard.

Let the lower court records be brought by this Court.

The Registry shall prepare requisite number of paper books and shall circulate the same to the appearing parties and/or their respective counsel. The respondents shall be deemed to be on bail on the terms set by the Trial Court.

Liberty to pray for expeditious hearing of the appeal.