iminal Appeal No 71 of 1963
Appeal by special leave from the judgment and order dated November 23 1962 of the Allahabad High Court Lucknow Bench at Lucknow in Criminal Revision No 251 of 1962
S T Desai O P Rana Atiqur Rahman and C P Lal for the appellant
C B Agarwala Ravinder Narain O C Mathur and J B Dadachanji for respondents nos
1 and 2
April 15 1964
The Judgment of SUBBA RAO and DA  GUPTA JJ was delivered by SUBBA RAO J RAGHUBAR DAYAL J delivered a dissenting Opinion
736 SUBBA RAO J
This appeal by special leave raises the question of the privilege raised by the Government of India in respect of certain documents called for from its Home De partment in a criminal proceeding pending the court of the Special Judge Anti Corruption East UP Lucknow
The respondents were prosecuted in the said Court after obtaining the sanction of the Central Government under section 197 of the Code of Criminal Procedure for an offence under section 61a of the Prevention of Corruption Act 1947 Act 11 of 1947
An objection was taken before the said court on behalf of the respondents that the sanctioning authority did not apply his mind properly when sanction for the prosecution was granted
It was stated on behalf of the respondents that on a representation made by one of the accused Col Sujan Singh for reconsideration of the order of his prosecution the Deputy Secretary in the Home Department reconsidered the matter and made notings on his application to the effect that the sanction accorded earlier for his prosecution was given on insufficient data
He filed a petition before the Special Judge to summon the con cerned record of the Home Department on the ground that the said record would substantiate his assertion that the con cerned officer did not apply his mind earlier in according sanction for his prosecution
The Secretary Ministry of Home Affairs claimed privilege on the ground that the production of the record containing the said notings of the Deputy Secretary would not be in the interests of the State
The Special Judge in the first instance and the High Court in revision re jected the claim of privilege raised by the Union Govern ment
The State of UP has preferred the present appeal by special leave against the order of the High Court
The respondents filed criminal petition No 149 of 1964 for condonation of delay in filing appearance and the statement of case
The facts relevant to this application are briefly as follows
Respondents 1 and 2 received the notice granting special leave by this Court on January 16 1964
After the receipt of the notice they contacted their local advocate at Lucknow and on his advice the 1st respondent along with his local advocate came to Delhi on January 28 1964 and made necessary arrangements with Messrs J B Dadachanji  Co Advocates
On January 16 1964 respondents 1 and 2 received a notice from the High Court intimating them that the records of the case had been despatched to the Supreme Court
On February 11 1964 they filed their appearance and on February 18 1964 their statement of case
If January 16 1964 was the date of service on them there would not be any delay in making their appearance or filing their statement of case
But the notice of the dispatch of the records was served on the learned counsel for respondents 1 and 2 on November 4 1963
Under Ch
V r 41c read with r 2 of the Rules of the High Court Allahabad where a party is represented by an advocate a service of notice of dispatch of record on such advocate is deemed to be sufficient service
As the present appeal arises out of an interlocutory order it may be said that the advocate representing the respondents in the High Court still continues to represent them
We assume for the purpose of this case that the rule is valid and the notice was duly served on the advocate
If that be so the respondents should have filed their appearance and lodged their statement of case within a month from the said date
But they filed their appearance on February 11 1964 which is clearly beyond time
It will be seen from the said facts that the respondents had filed their appearance within one month from the date of service of notice on them but beyond time from the date the notice was served on their advocate
The said delay is not in the presentation of any appeal but only in following the procedural steps for making the case ready for disposal
We are satisfied by perusing the record that the delay was not due to negligence on the part of the respondents
It is not suggested that the appellant is in any way prejudiced by this delay
In the circumstances we think that this is a fit case for excusing the delay
We excuse the delay in filing respondents  appearance and also in lodging the statement of case
Whether the daily of the respondents in entering appearance is excused or not
we are at the outset confronted with the situation that this Court gave special leave when the appeal was prima facie barred by limitation without the appellant filing an application for excusing the delay and the Court excusing the same
A few facts would make the position clear
The Judgment of the High Court in the criminal revision is dated November 23 1962
A certified copy of the Judgment was delivered to the appellant on December 5 1962
On December 19 1962 the appellant filed a petition in the High Court of Judicature at Allahabad for a certificate that the case was a fit one for appeal to the Supreme Court
On February 18 1963 the High Court held that the order sought to be appealed against was an interlocutory one and therefore the petition was not maintainable under article 134 1c of the Constitution of India
On April 16 1963 the appellant filed a petition in this Court for special leave to appeal against the order of the High Court in the criminal revision
In para
19 of that petition it was stated that the appellant applied to the High Court for a certificate for leave to appeal to the Supreme Court but the High Court by order dated February 18 1963 refused to grant the certificate applied for
The appeal LPDISCI 24 738 would be in time if that application was maintainable in the High Court but would be out of time if that application was not maintainable there for in the latter event the time would have expired on March 5 1963 and the appeal would have been out of time by 42 days
Learned counsel for the appellant contends that special leave was ranted on May 10 1963 and that as the respon dents have not taken objection on the ground that it was barred by limitation till they filed their petition in this Court on February 26 1964 we shall not permit them to raise this plea at this very late stage
We are not impressed by this argument
This is not a case where the Supreme Court excused the delay in filing the petition for special leave and the respondents with the knowledge of that fact permitted the appellant to incur heavy expenditure and after a long delay raised the objection at the time of hearing of the appeal that the delay should not have been excused
But this is a case where the appellant did not bring to the notice of the Court that the petition for special leave was out of time
The Registry could not point out the defect as in the petition it was stated that the application under article 1341c of the Constitution of India was dismissed by the High Court without indicating on what ground it did and this Court assumed that the petition for special leave was in time and gave special leave
Order XXI r 2 of the Supreme Court Rules reads Where the period of limitation is claimed from the date of refusal of a certificate it shall not be necessary to file the order refusing a certificate but the petition for special leave shall be accompanied by an affidavit stating the date of the judgment sought to be appealed from the date on which the application for a certificate was made to the High Court the date of the order refusing the certificate and the ground or grounds on which the certificate was refused and in particular whether the application for a certificate was dismissed as being out of time Under the said rule it is incumbent upon the petitioner to state in the affidavit filed in support of the petition the date of the order of the High Court refusing the certificate and the ground or grounds on which the certificate was refused
If the appellant had complied with this rule the Registry of this Court would have noticed the delay in filing the special leave petition and brought that to the notice of the Court
In the circumstances there are two courses open to us one is to dismiss the appeal on the ground that it was barred by limitation and the other is to permit the appellant to file 739 a petition at this very late stage for excusing the delay in filing the special leave petition and consider that petition on merits
Ordinarily no indulgence should be given to a party when the said party with open eyes filed a petition for special leave without disclosing a material circumstance in the affidavit on the basis of a wrong view of law that the appeal was in time
With some hesitation we gave liberty to the appellant to file a petition for excusing the delay and they have done so
We shall now consider the petition for excusing the delay on merits as this Court would have done if that application had been filed along with the special leave petition
Two reasons are given in the application for excusing the delay namely 1 the Law Officer who was at the relevant time in charge of the matter in the High Court advised the Government that the order under appeal was a final order and that an application should be filed under article 1341c of the Constitution in the first instance so that the other side might not contend that the appellant did not approach the High Court for a certificate and that the said advice was accepted by the Government and 2 the appellant acted bona fide as it believed on legal advice that the period of limitation would be counted from February 18 1963 ie the date of the order of the High Court refusing to give certificate and that the order was also filed along with the petition in this Court
The respondents filed a counter affidavit denying that the order was a final order and stating that there was not sufficient reason for excusing the delay
The learned counsel for the appellant contended that the order of the High Court dated November 23 1962 in the criminal revision was a final order within the meaning of article 1341 of the Constitution
The material part of the said article reads An appeal shall lie to the Supreme Court from any judgment final order or sentence in a criminal proceeding of a High Court in the territory of India   
We find it difficult to hold that the order under appeal is a final order within the meaning of the said article
In Seth Premchand Satramdas vs The State of Bihar1 it was held that an order of the Patna High Court dismissing an application under section 213 of the Bihar Sales Tax Act 1944 to direct the Board of Revenue Bihar to state a case and to refer it to the   804
LPDISCI 24a 740 High Court was not a final order
This Court speaking through Fazl Ali J defined the expression final order thus It seems to us that the order appealed against in this case
cannot be regarded as a final order because it does not of its own force bind or affect the rights of the parties
Though this definition is given in a different context it will equally apply to that expression in article 134 of the Constitution
Can it be said that the Special Judge in allowing the petition of the respondents to call for the production of a document from the Union Government is a final order in the criminal proceeding  The criminal proceedings were taken against the respondents for an offence under section 61a of the Prevention of Corruption Act 1947
The proceedings are now pending in the court of the Special Judge
In the course of those proceedings the respondents filed an application for the production of a document by the Union Government and that was allowed by the court
The said order is only an interlocutory order pending the proceedings
It does not purport to decide the rights of the parties namely the State of UP and the accused
It enables the accused to have the said document duly proved and exhibited in the case
It relates only to a procedural step for adducing evidence
The High Court confirmed that order in revision
But the learned counsel contents that it negatives the claim of privilege made by the Union Government and therefore it decides against the right of the Union Government to withhold the production of the document
Assuming that the order decides some right of the Union Government on which we do not express any opinion the Union Government is neither a party to the cri minal proceedings nor is it a party either before the High Court or before us
The indirect effect of that order on a third party to the proceedings who does not seek to question that order does not deprive the order of its interlocutory character
We therefore bold that the order made by the High Court is not a final order within the meaning of article 1341 of the Constitution
That apart the order of the High Court holding that the order sought to be appealed from was not a final order within the meaning of article 1341 of the Constitution has become final
The appellant has not filed any appeal against that order
It cannot ignore that order for the purpose of special leave and contend that the application before the High Court was maintainable and the order made by the High Court must be deemed to have been made on merits though in express terms it rejected the petition for the reason that it was not maintainable
In either view the period of limitation for filing the special leave petition could not be computed from 741 the date of the order of the High Court refusing to give a certificate to appeal to the Supreme Court
It is then contended that the rule does not say in express terms that the said order of refusal to give a certificate must be on an application which is maintainable and therefore if in fact the High Court refused to give a certificate whether on merits or on the round that it was not maintainable the party can take advantage of the said rule
We cannot accede to this argument
The rule presupposes that the application for the certificate is maintainable and the court refuse to give it on the round that the conditions laid down in article 1341 of the Constitution have not been complied with
If the construction put forth by the appellant be accepted it will give room for fraud and evasion of the rule
A party whose appeal has become barred can file a petition with the knowledge that it is not maintainable get an order of dismissal and then seek to take advantage of the additional period of limitation provided by the rule
The rule therefore must be interpreted reasonably and if so interpreted
it could only mean that the refusal of the certificate must be in an application maintainable under the said Article
Now we shall proceed to consider the application for excusing delay on its merits
The reason for the delay given in the affidavit is that the Law Officer was of the opinion that the application for a certificate was maintainable under article 1341 of the Constitution
We do not see any justification for this opinion
There is no conflict of judicial opinion on this question
The only question that was before the Law Officer was whether the order sought to be appealed from was a final order
The order ex facie was an interlocutory order and so far as the Government of UP was concerned it could not possibly be held that any of its rights bad been affected by that order
In the circumstances we cannot hold that a wrong legal advice is a sufficient ground for excusing the delay
What is more on February 18 1963 the High Court in a considered order held that the order sought to be appealed from was not a final order and therefore an application under article 1341 of the Constitution was not maintainable
The time for preferring an appeal from the main order of the High Court would expire only on March 5
1963 that is to say the appellant had 15 days time more for taking steps for preferring the appeal
Even so no steps were taken to file the appeal and instead an appeal was filed on the basis of the original opinion of the Law officer that the time can be computed from the date of the order refusing to issue the certificate
From the information supplied by the counsel for the appellant it appears that the Government decided to file the appeal only on March 8 1963 ie after the time for filing the appeal bad 742 expired
After further correspondence between the Govern ment of UP and the counsel representing it in the Supreme Court the special leave petition was filed only on April 16
1963 completely ignoring the reasons given by the High Court in dismissing the application for certificate of fitness
On the said facts we do not see any justification for excusing the long delay of 42 days
the appeal is clearly barred by limitation and should be dismissed
Accordingly the appeal is dismissed
RAGHUBAR DYAL J
I respondents  appearance and also in lodging the statement of case be excused
I am however of opinion that the appellant s application for excusing the delay in the presentation of the petition for special leave to appeal be allowed
It has to be assumed for the purposes of disposing of this application that the order under appeal was not a final order within the meaning of that expression in article 1341 of the Constitution
The High Court held so and refused the certificate
The appellant has neither preferred an appeal against that order nor questioned its correctness in its petition for special leave
The reason urged for condoning the delay is that the legal advisers of the appellant were of opinion that limitation for the presentation of the petition for special leave would be governed by the provisions of r 1 of OXXI Supreme Court Rules hereinafter called the rules and that in accordance with those provisions the period of limitation would be 60 days from the date of refusal of the certificate by the High Court
If that rule applied the petition for special leave would be in time
The certificate was refused on February 18 1963 and the special leave petition was filed  on April 16
The question then is whether the appellant can take advantage of the opinion of its legal advisers assuming that this opinion was erroneous
I am of opinion that it should be given that advantage as the error
if any cannot be said to be of such a character which a legal adviser could not have possibly given
The rule does not expressly state that limitation would be counted from the date of refusal of the certificate only when an application for a certificate under article 134 would be maintainable as an application against an order which is held by the High Court to be a judgment final order or sentence in a criminal proceeding 
It is true that an application under article 134 is contemplated to be an application against the judgment
final order or sentence in a criminal proceeding and that refusal of a certificate under article 134
for purposes of rule 1 1 of OXXI
refers to the refusal of an application 743 for certificate against the judgment final order or sentence in a criminal proceeding
But this does not necessarily mean that the rule will not be applicable in cases of refusal of a certificate when one applied for it on the ground that the order sought to be appealed against amounted to a judgment final order or sentence while the High Court came to a different opinion
The rule does not specifically state that the date of the refusal of the certificate would be taken to be the starting point of limitation only when the High Court refuses certificate on the round that it was not a fit case for appeal to the Supreme Court
If it were so the rule would have been limited to those cases
Further there is indication in sub r
2 itself that such was not contemplated by sub r
1 of r 1
Sub rule 2 of r 1 requires the petitioner in case he desires limitation to be counted from the date of refusal of the certificate to mention the rounds for the refusal of the certificate and in particular Whether the application for certificate was rejected as being out of time
An application presented after the expiry of limitation is not maintainable till the Court allows the application for the condonation of delay
There must be a reason for providing in sub r
2 that the fact of the refusal of the certificate on round of limitation must be expressed
The reason is that proviso iii to sub r
1 of r 1 provides that when an application for a certificate is dismissed on the round of its being out of time limitation for the petition for special leave to appeal will not be counted from the date of the dismissal of the application
There is no corresponding provision with respect to the limitation being not counted from the date of refusal
if the refusal be on the ground that the order sought to be appealed against did not amount to a judgment final order or sentence  in a criminal proceedings
In view of these considerations the advice of the appel lant s counsel even if it be erroneous should not go against the appellant to the extent that the delay in filing of the special leave petition be not condoned
I do not think that the omission to state the ground of refusal in the petition for special leave was deliberate in order to keep back from the Court that the application had been presented after the expiry of the period of limitation
it would not be irrelevant to consider the nature of the point sought to be urged in the appeal
The question is whether the High Court was right in considering the order of the trial Court rejecting the claim of privilege raised by the Union Government in accordance with section 123 of the Evidence Act with respect to the production of certain documents summoned
on the round that the disclosure would not be in public 744 interest
If the view of the Courts below is wrong the result of refusing to condone the delay would be that public interest will suffer and that consideration should in my opinion outweigh the lapse on the part of the appellant in not filing the petition for special leave to appeal within time and that too in view of the wrong advice or opinion given by its legal advisers
I would therefore allow the application and condone the appellant s delay in presentation of the petition for special leave
ORDER In accordance with the opinion of the majority the delay in filing the special leave petition is not condoned
The appeal is barred by limitation and is dismissed
Appeal dismissed


Summary:
The respondents were prosecuted in the court of the special Judge after obtaining the sanction of the Central Government for an offence under section 61a of the Prevention of Corruption Act They put an objection that the sanctioning authority did not apply his mind properly when sanction was granted
One of the respondents asked the Court to summon the concerned record of the Home Department for it would substantiate his assertion that the concerned officer did not apply his mind earlier in according sanction for his prosecution
The Secretary Ministry of Home Affairs claimed privilege
The Special Judge and the High Court in revision rejected the claim of privilege of the Union Government
The appellant than filed a petition in the High Court for grant of a certificate
The High Court held that the order sought to be appealed against was an interlocutory one and therefore the petition was not maintainable under article 1341c of the Constitution
Against the order of the High Court in revision the appellant filed a petition for special leave to appeal stating that he applied for a certificate to the High Court but it was refused
The appellant did not bring to the notice of this Court that the petition for special leave as out of time
The Registry could not point out the defect as in the petition it was stated that the application under article 1341c was dismissed by the High Court without indicating on what ground it did and this Court assumed that it was in time and granted special leave
However after obtaining the permission of this Court the appellant filed a petition for excusing the delay on the ground that the Law Officer who was at the relevant time in charge of the matter in the High Court advised the Government that the order under appeal was a final order and that an application should be filed under article 1341c of the Constitution and that the appellant acted bonafide
The appellant contended 1 that the order of the High Court in the criminal revision was a final order within the meaning of article 134 1c of the Constitution and 2 that the rule 11 of 0
XXI of the Supreme Court Rules does not say in express terms that the order of refusal to give a certificate must be on an application which is maintainable and therefore if in fact the High Court refused to give a certificate whether on merit or on the ground that it was not maintainable the party could take advantage of the said rule
Held per K Subba Rao and K C Das Gupta JJ i The order under appeal was not a final order within the meaning of article 1341 of the Constitution
It did not purport to decide 735 the rights of the parties namely the State UP and the accused
Assuming that it decided some right of the Union Government the Union Government was neither a party to the criminal proceedings nor was it a party either before the High Court or before this Court
The indirect effect of the order of a third party to the proceedings who did not seek to question that order did not deprive the order of its interlocutory character
Seth Premchand Satramdas vs State of Bihar 1950 SCR 799 relied on
ii Rule 11 of 0
XXI presupposes that the application for the certificate is maintainable and the Court refuses to give it on the ground that the condition laid down in article 1341 of the Constitution have not been complied with
On a reasonable Interpretation of the rule it could only mean that the refusal of the certificate must be in an application maintainable under the said Article
iiiThe order ex facie was an interlocutory order and so far as the Government of UP was concerned it could not possibly be held that any of its rights had been affected by that order
In the circumstances it must be held that a wrong legal advice is not a sufficient ground for excusing the delay and the appeal therefore must be dismissed as barred by limitation
Per Raghubar Dayal J dissenting The appellant should be given the advantage of the opinion of its legal advisers as the error if any
could not be said to be of such a character which a legal adviser could not have possibly given
The rule does not expressly state that limitation would be counted from the date of refusal of the certificate only when an application for a certificate under article 134 would be maintainable
It is true that an application under article 134 is contemplated to be an application against the judgment final order or sentence in a criminal proceeding and that refusal of a certificate under article 134 for purposes of rule 11 of 0
XXI refers to the refusal of an application for certificate against the judgment final order or sentence in a criminal proceeding
But this does not necessarily mean that the rule will not be applicable in cases of refusal of a certificate when one applied for it on the ground that the order sought to be appealed against amounted to a judgment final order or sentence while the High Court came to a different opnion The rule does not specifically state that the date of the refusal of the certificate would be taken to be the starting point of limitation only when the High Court refuses certificate on the ground that it was not a fit case for appeal to the Supreme Court
If it were so the rule would have been limited to those cases