State of U.P. vs Gauri Shanker and Another

B.L.Yadav, J.—This Criminal Revision preferred u/s 397/401 Code of Criminal Procedure 1973 (for short the Code) on behalf of the State of U.P. was admitted on 17-4-1987 by a Division Bench consisting of Hon''ble K. J Shelly as his Lordship then was and one of us (B. L. Yadav, J.) and the delay of about 146 days was condoned without issuing notices to the opposite parties the present Applicants.

The revision is directed against the order dated 21st July 1984 passed by Special/Additional Sessions Judge Bulandshahr. Fact of the case need not detain us much as the same are admitted.

In a case u/s 3/7 of Essential Commodities Act (for short the Act), P. S. Khurja, Distt. Bulandshahr, process was issued by the order dated 20-3-1984 passed by the Magistrate against the opposite parties. Against that order the accused opposite parties preferred a revision before the Sessions Judge and the same was allowed without assigning any reason and the order directing the process to be issued was set aside by the impugned order dated 31st July 1984. Against that order, on behalf of State, a belated criminal revision was filed accompanied by an application u/s 5 of the Limitation Act for condonation of delay. The delay of 146 days in filing the revision was condoned without issuing notice to the opposite parties and the revision was admitted same day by a Division Bench of which one of us (Hon''ble B. L. Yadav, J.) was a party, and notices were directed to be issued to the opposite parties. An application has been filed on behalf of opposite parties with the prayer that the order condoning delay without issuing notices to the opposite parties and admitting the revision may be recalled. Earlier matter was listed before learned Single Judge but lateron, as the order condoning delay and admitting revision was passed by a Division Bench, matter has been placed before a Division Bench and this is how the matter has come before us.

Mr. A. B. L Gaur, learned Counsel for the opposite parties extrenously urged that as the revision was time barred by 146 days valuable rights accrued in favour of opposite parties, the accused and without issuing notice to them on the application u/s 5 of Limitation Act, the delay ought not to have been condoned and in case delay was not condoned, revision could not have been admitted. Each day''s delay must have been explained. By a perusal of the application u/s 5 of the Limitation Act it is manifest that Special Judge/Additional Session Judge passed impugned order on 31-7-84 but the application for certified copy of the order was filed by the applicant on 4-2-1985 and the same was ready on 7-2-1985. The matter was received in the Legal Remembrancer''s office at Lucknow on 23-3-85 for permission to file the revision. On 23-3-1985 proposal was examined and on 25-3-85 decision was taken by the Government to file revision in the High Court but nevertheless the revision has been filed on 27-3-1985 and the report of Stamp Reporter of the High Court office was submitted lateron There appears to be contradiction in the application and affidavit filed by Gujraj Singh, Verma. penal lawyer in the Sessions Court Bulandshahr. The case on behalf of State should be examined on that level as that of a private litigant Reliance was placed on State of Maharashtra v. Jaswant Parasharam Savant. 1977 CriLJ 1944 DB, State of Uttar Pradesh Vs. Christopher Tobit and Others, .

Mr. A. L. Mishra, learned Counsel appearing on behalf of State urged that criminal jurisdiction was invoked under inherent jurisdiction of the High Court and the delay can be condoned even without issuing notice to the accused opposite parties. Any way even if notices were not issued on the application u/s 5 of Limitation Act before condoning delay, the application to recall that order filed on behalf of opposite parties may be considered with a view to ascertain as to whether the delay could be condoned and in case the court decides that it was a case where the delay could have been condoned, there was no irregularity when the delay was condoned, there could not be deemed to be any irregularity committed by the Division Bench if the delay was condoned without issuing notices to the opposite parties. He tried to distinguish the cases cited by the learned Counsel for the opposite parties and urged that recently their lordships of Supreme Court have taken a liberal view in the matters of condonation of delay and the approach of the Court in such matter shas been pointed out to be justice oriented and condonation of delay need not be considered in a pedantic manner. As the delay has been condoned, revision has been admitted by a Division Bench there is no justification, nor any ground was made out to recall that order.

No doubt normally before deciding an application u/s 5 of Limitation Act notice should be issued to the opposite parties and they may be given opportunity to contest the claim or to show cause why the delay need not be condoned but this is the procedure normally in the appeals. The revisory jurisdiction u/s 397/401 of the Code is a sort of special jurisdiction some what similar to the inherent jurisdiction of the Court. That power can be exercised suo moto also. This Court, therefore, gets the power to condone the delay so as to enable it to exercise the Revisional jurisdiction. The nature of Revisory jurisdiction of this Court and that of Sessions may be noticed. The revisional power u/s 397 has been conferred on High Court and the Sessions Judge. It is a special discretionary jurisdiction, samewhat similar to inherent jurisdiction u/s 482 of the Code The inherent jurisdiction, however, can be exercised only by the High Court had the Sessions Judge has no inherent jurisdiction to be exercised u/s 482. Besides the Revisory power u/s 397 the High Court has power of judicial superintendence on the subordinate courts and Tribunals Under Article 227 of the Constitution of India, in case of grave dereliction of duty or excess of authority or violation of elementary principles of justice. The Revisory power u/s 397/401 of the Code is the power of the High Court or the Court of Sessions. It is not the power of a party or litigant. Under this power the High Court or the Court of Sessions can call for and examine the record of the subordinate courts for the purpose of satisfying themselves about the legality and regularity of an order passed. The power is concurrent but if a ligitant chooses to avail of the jurisdiction he has to choose either of the two. As the revision is the power of the court and not of a litigant, the strict rules of limitation need not apply. In other words, it is for the High Court or Court of Sessions to decide as to whether to exercise the jurisdiction or not. This revisory power is discretionary and unfettered by limitation, but it is subject to the provisions of Section 465 which provides that just on the basis of irregularity, error or omission an order need not be set aside unless in the opinion of the Court the failure of justice has infact been accessioned thereby.

Earlier in the matters of condonation of delay, no doubt the view was that each days delay has to be explained before the explanation for delay could be accepted.

In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , it was observed as follows:

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 may be applied in a rational common sense pragmatic manner.

In G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, , principles were indicated as to how the Court has to decide an application u/s 5 of Limitation Act and it was pointed out that Section 5 of Limitation Act must be interpreted in a justice oriented way and not a pedantic manner. It was further pointed out that every day''s delay be explained was not a good principle. In the present case we have given our thoughtful considerations for the submissions of Mr. Gaur but it is a matter of common knowledge that private individual remains more deligent, sincere and active in persuing his remedy or prefering the appeal and revision rather than the machinery of State Government Officials even though they are expected to be more intelligent but normally as the file has to move through so many tables, in certain cases some delay is caused in decision making process as to whether the State has to file the appeal or revision or not ?

In State of Maharashtra Vs. Yeshwant Parasharam Sawant, relied upon by the learned Counsel for the applicant, indicating the scope of Section 5 of Limitation Act where delay on behalf of State Government was explained that the clerk dealing with the matter was absent and new clerk was appointed but that was held not to be sufficient cause for condonation of delay, and the Division Bench pointed out that admission of appeal exparte does not debar the Respondents to contend at the time of hearing that the appeal was timebarred. Consistent with these observations we have heard learned Counsel for the applicant on the application made by him to the effect that the revision was time barred and there was no justification for condonation of delay; Both these observations of Division Bench were in the teeth of the recent declaration of law on the subject by their lordships of Supreme Court as pointed out earlier in G. Ramegowda Major''s case, and Collector L. A. Anantnag v. Mst. Katiji (supra). The approach of the court has to be justice oriented The expressions "sufficient cause" in our opinion has to be interpreted in pragmatic manner and every day''s delay was not a strait jacket formula and if the same principle was to be followed then why not every minutes and every seconds delay was expected to be explained. In our opinion, in the present case delay has satisfactorily been explained on behalf of State of U.P. in prefering the revision.

As pointed out by the Privy Council in Krishna Swami v. Rama- swami 1917 PC 179, normally the question of limitation affecting the competence of appeal or revision should be determined at the stage of admission. Similarly in Sundarbai v. Collector of Belgaon 1918 PC 135, it was observed by the Privy Council that where the memorandum of appeal or revision was presented beyond the prescribed limitation, the proper order which a Judge should pass was let the notices go to the Respondents. In the present case if the delay has been condoned on the date of admission or presentation, by the Division Bench and the opposite parties raise the objection about the delay, subsequently it is proper that the party may be heard. In case there was no justification for condonation of delay the application be rejected and in that event, even though that view appears to be not quite consistent with the settled principles, the order admitting the appeal or revision could be recalled also. But in the present case we are satisfied that the delay has been satisfactorily explained by the State of U.P. and even if on the date of admission delay was condoned without issuing notices, there was no material illegality or irregularity.

Matter can be viewed from another angle. The result of refusing to condone the delay would result in a meritorious matter being thrown out at the very threshhold and thereby the cause of justice would be frustrated. As compared to this assuming the delay is condoned, the maximum that can happen is that a cause would be decided on merits after hearing the parties. In the present revision also by condoning the delay, no injustice was caused to the opposite parties and now when present application was moved, cause for delay has been scrutinised and we are satisfied that it has been correctly condoned. By condoning delay, substantial justice is done. In such matters of considerable magnitude, courts need not be technical.

In view of the premises aforesaid we are of the considered opinion that the expression sufficient cause u/s 5 of Limitation Act has to be scrutinised in a justice oriented manner and narrow pedantic approach need not be made. Explanation of each day''s delay is not a correct formula in every case. In the present case, delay was explained satisfactorily on behalf of State and it was correctly condoned on the date of admission. Even though better course to be adopted could have been to issue notice to the opposite parties (present applicant) to show cause as to why not the delay be condoned but as the revision was essentially under the Revision jurisdiction of the Court which was somewhat similar to inherent jurisdiction, which could be exercised even suomoto, even if dealy was condoned on the date of admission itself without issuing notices to the opposite parties, we now after hearing opposite parties on the point of condonation of delay, are of the view that the delay has correctly been condoned by the Division Bench consequently we refrain from recalling the order passed by the Division Bench condoning delay, admitting the revision and issuing process to the opposite parties (present applicant) and accordingly the application moved on behalf of opposite parties to recall the order passed by Division Bench condoning delay, admitting revision and issuing process to the opposite parties, is rejected.