THE HIGH COURT OF SIKKIM : GANGTOK (Criminal Appeal Jurisdiction) DATED : 1 st SEPTEMBER, 2017 ---------------------------------------------------------------------------------------------------------------- DIVISION BENCH : THE HON BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE THE HON BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE ---------------------------------------------------------------------------------------------------------------- I.A. No.01 of 2017 in Crl.L.P. No.02 of 2017 Appellant : State of Sikkim versus Respondents : 1. Mr. Gurmey Wangchuk Wazalingpa @ Gyurmee, Aged about 31 years, S/o Topjor Dorjee, R/o New Market, 2. Mr. Bidhan Pradhan, Aged about 32 years, S/o Late K. K. Pradhan, R/o Lower Arithang, 3. Mr. Roden Wangdi Sherpa, Aged about 32 years, S/o Sonam Wangdi, Resident of 26/2, Harka Dhoj Lama Road, West Bengal, At present C/o Lakpa Doma Bhutia, Hidden Forest Area, Sichey, 4. Mr. Ugen Namgyal Basi, S/o Late Phinstok Namgyal Basi, R/o Sichey, Near Sishu Bhawan,
I.A. No.01 of 2017 in Crl.L.P. No. 02 of 2017 2 5. Mr. Sonam Namgyal, Aged about 31 years, S/o Pema Wangchuk, R/o Ralang House, Bakthang, Lower Burtuk, 6. Mr. Karna Hang Subba, S/o Hans Pal Subba, R/o Lall Bazar, 7. Mr. Purba Tamang, S/o C. B. Tamang, R/o 3 rd Mile, J. N. Road, Application for condonation of delay under Section 5 of the Limitation Act, 1963 ------------------------------------------------------------------------------------------ Appearance Mr. Karma Thinlay Namgyal, Additional Public Prosecutor with Mr. S. K. Chettri, Assistant Public Prosecutor for the State-Appellant. Mr. Ajay Rathi, Ms. Phurba Diki Sherpa and Mr. Pramit Chhetri, Advocates for Respondents No.1 and 2. Mr. K. T. Bhutia, Senior Advocate with Ms. Bandana Pradhan, Advocate for Respondents No.3 and 5. Mr. Tashi Norbu Basi, Advocate for Respondent No.4. Ms. Tashi Doma Sherpa, Advocate for Respondents No.6 and 7. ------------------------------------------------------------------------------------------ Meenakshi Madan Rai, J. O R D E R 1. The State-Appellant has filed the instant Application under Section 5 of Limitation Act, 1963 (for short the Act ), seeking condonation of 158 (one hundred and fifty-eight) days in filing Leave to Appeal.
I.A. No.01 of 2017 in Crl.L.P. No. 02 of 2017 3 2. On the date fixed for hearing the instant matter, Learned Additional Public Prosecutor sought some time to file a better Affidavit, which was allowed vide Order of this Court dated 31-07-2017 and consequently filed. Learned Additional Public Prosecutor while seeking condonation of delay has put forth the chronology of events leading to the delay, being, (i) That, the impugned Judgment and Order of acquittal was passed by the Learned Sessions Judge, Special Division II, at East Sikkim, in Sessions Trial Case No.09 of 2015, in the matter of State of Sikkim vs. Gurmey Wangchuk Wazalingpa @ Gyurmee and Others, acquitting the Respondents herein. (ii) On an Application made for a certified copy of the impugned Judgment on the same day, the copy was furnished on 03-08-2016, hence, the Appeal was to be filed by 31-10-2016. (iii) The File was received in the Office of the Advocate General on 27-01-2017, marked to the Senior Government Advocate, by Learned Additional Advocate General, on the same day, for preparation of the Appeal. (iv) 28-01-2017 being a Government holiday and 29-01- 2017, a Sunday, no steps were taken, following which, Senior Government proceeded to Delhi and returned only on 12-02-2017. (v) Thereupon, the file was marked to Assistant Government Advocate on 13-02-2017 for taking necessary steps, who on 25-02-2017, placed the draft before the Additional Public Prosecutor.
I.A. No.01 of 2017 in Crl.L.P. No. 02 of 2017 4 (vi) Due to the intervening Government holidays on 26-02- 2017 and 27-02-2017, the draft was sent to the Crime Branch, Sikkim Police, on 06-03-2017, for clarification and after its return on 08-03-2017, the matter was discussed with the Law Officer on 09-03-2017 and 11-03-2017, receiving final settlement on 28-03-2017. On 29-03-2017 the draft was sent to the Additional Public Prosecutor for filing the Appeal, which took 3 (three) days, for preparation and the same was finally filed on 03-04-2017. (vii) The grounds furnished herein are bona fide and hence, the Petition be allowed. 3. His submissions were buttressed by placing reliance on Basawaraj and Another vs. Special Land Acquisition Officer 1 and Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others 2. 4. Learned Counsel for the Respondents No.1 and 2, on his part, vehemently opposing the Petition for delay and contended that the State Government cannot be given any extra leverage for the delay, as it has been held by the Hon ble Supreme Court in Pundlik Jalam Patil (Dead) by Lrs. vs. Executive Engineer, Jalgaon Medium Project and Another 3, that the Court helps those who are vigilant and do not slumber over their rights. That, stale claims ought not to be allowed to be pursued as public interest is of paramount consideration. Reliance was also placed on the decision of H. Dohil 1 (2013) 14 SCC 81 2 (2013) 12 SCC 649 3 (2008) 17 SCC 448
I.A. No.01 of 2017 in Crl.L.P. No. 02 of 2017 5 Constructions Company Private Limited vs. Nahar Exports Limited and Another 4, where the Hon ble Supreme Court, while dealing with a delay of 1727 (one thousand, seven hundred and twenty-seven) days reiterated maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights) and observed that, the same maxim were applicable to the said case and the Petition was dismissed lacking bona fides. 5. That, in the instant matter, the delay has not been explained inasmuch as, merely because, the Counsel goes out of station, it would not imply that the matter cannot be continued. The Petition lacks in bona fides and the grounds merit no consideration. Attention of this Court was drawn to Esha Bhattacharjee 2, wherein the Hon ble Supreme Court, in Paragraph 15, observed as hereinunder; 15. In this context, we may refer with profit to the authority in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn. [(2010) 5 SCC 459], where a two-judge Bench of this Court has observed that: (SCC p.465, para 14) 14.. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. Thereafter, the learned Judges proceeded to state that this Court has justifiably advocated adoption of liberal 4 (2015) 1 SCC 680
I.A. No.01 of 2017 in Crl.L.P. No. 02 of 2017 6 approach in condoning the delay of short duration and a stricter approach where the delay is inordinate. 6. That, in State of Jharkhand through SP, CBI vs. Lalu Prasad @ Lalu Prasad Yadav 5 the Hon ble Supreme Court observed that State and Private individuals should not be differentiated in matters of delay. That, merely because, the State has filed the matter belatedly by putting forth the above reasons, which lack bona fides, it is not entitled to the prayer for condonation of delay. Therefore, the Petition be dismissed. 7. The other Respondents had no submissions to made. 8. We have heard Learned Counsel at length, traversed the contents of the Application and given careful consideration to their rival submissions. 9. Section 5 of the Act allows condonation of delay if sufficient cause is shown by the party, who fails to perform the act within the prescribed period. However, the condition is that sufficient cause has to be established to indicate the reasons which prevented the party from taking necessary steps within the period of limitation prescribed. If the party fails to show sufficient cause, then the Court will not be in a position to condone the delay. 10. In Esha Bhattacharjee 2 relied on by both parties, the Hon ble Supreme Court while dealing with Section 5 of the Act, 5 2017 (6) Scale 21
I.A. No.01 of 2017 in Crl.L.P. No. 02 of 2017 7 inter alia, culled out the principles that ought to be adhered to by the parties, viz.; 21. 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... 21.9. (ix) The conduct, behaviour 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... 11. Bearing in mind the aforesaid principles, while examining the matter at hand, we find that the delay has been sufficiently explained by the State-Appellant by placing the sequence of events that occurred which resulted in the delay. There is no gross inaction, negligence, deliberate inaction or lack of bona fides on the part of the Appellant.
I.A. No.01 of 2017 in Crl.L.P. No. 02 of 2017 8 12. The matter deals with the acquittal of the Respondents No.1 to 5 under Sections 302/323/325/506/34 of the Indian Penal Code and Sections 176/34 of the Indian Penal Code regarding Respondents No.6 and 7. It is appropriate to state here that in Esha Bhattacharjee 2 the Hon ble Supreme Court held that the Courts are required to be vigilant so that ultimately there is no real failure of justice and substantial justice being paramount and pivotal, the technical considerations ought not to be given undue and uncalled for emphasis. 13. In the facts and circumstances, we are inclined to and accordingly, do condone the delay. 14. Petition allowed. Sd/- Sd/- ( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai ) Judge Judge 01-09-2017 01-09-2017 Approved for reporting : Yes Internet : Yes ds