State (Nct Of Delhi) vs Ahmed Jaan on 12 August, 2008
State (Nct Of Delhi) vs Ahmed Jaan on 12 August, 2008
Equivalent citations: 2008 AIR SCW 5692, AIR 2009 SC (SUPP) 695, 2008 (14)
SCC 582, 2008 (8) SRJ 558, (2010) 4 PUN LR 234, (2008) 4 ALLCRILR 288,
(2008) 2 EFR 587, (2008) 4 RECCIVR 126, (2008) 2 RENCR 234, (2008) 4 PUN
LR 735, (2008) 11 SCALE 455, 2008 CRILR(SC&MP) 769, (2008) 3 MAD LJ(CRI)
851, (2009) 75 ALLINDCAS 241 (SC), (2009) 64 ALLCRIC 571, (2010) 1
CURCRIR 465, 2009 (2) SCC (CRI) 864, (2008) 6 SERVLR 447, (2010) 167 DLT
658, (2008) 2 CRILR(RAJ) 769, 2008 CRILR(SC MAH GUJ) 769, (2008) 3 JCC
2128 (SC), (2008) 4 RECCRIR 119, (2008) 4 SCT 25, (2008) 4 CHANDCRIC 88
Author: Arijit Pasayat
Bench: Mukundakam Sharma, Arijit Pasayat
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
JUDGMENT
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.
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State (Nct Of Delhi) vs Ahmed Jaan on 12 August, 2008
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 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.
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 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
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State (Nct Of Delhi) vs Ahmed Jaan on 12 August, 2008
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 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.
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.
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 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.
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State (Nct Of Delhi) vs Ahmed Jaan on 12 August, 2008
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 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 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 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
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State (Nct Of Delhi) vs Ahmed Jaan on 12 August, 2008
where no gross negligence or deliberate inaction or lack of bona fides is 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 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 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 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.
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State (Nct Of Delhi) vs Ahmed Jaan on 12 August, 2008
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.
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) New Delhi, August 12, 2008
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