1 Cri-A-492-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 492 OF 2009 Dina Chetan Shah ) Aged about 52 years, of Mumbai, ) Indian Inhabitant, residing at 4, ) Viomean, L.D. Ruparel Cross Lane, ) Mumbai 400 006. ).. Applicant (Orig. Resp. No.4) Versus 1. Government of U.S.S.R. ) represented by trade Representation ) of U.S.S.R. in India through Russian ) Federation its Consulate General ) Alexander V. Mantytsky having ) its office at 42 L, Jagmohandas Marg,) (Old Napean Sea Road), Palm Beach, ) Mumbai 400 036, through its ) Constituted Attorney Krishna Kishpre) having his office at DGP House, ) Ground floor, 88C Old Prabhadevi ) Road, Mumbai 400 025. ) 2. State of Maharastra ) through the Public Prosecutor, ) Sessions Court, ) State of Maharastra, Mumbai. ).. Respondents Mr.Amit Desai Senior Counsel, i/b.Mr. P.D.Desai, Advocate, for the applicant Mr. A.P.Mundagi, Senior Counsel, i,b. Mr. A.V.Jain & Associates,Advocates for the respondent No.1. Mr. D.R.More, APP, for the respondent No.2 - State. 2 Cri-A-492-09.sxw CORAM: J.H.BHATIA,J. DATE : 2nd May, 2011. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. Perused the record and proceedings. 2. To state in brief, Government of erstwhile U.S.S.R. owned Marine House situated on plot C.S. Nos. 2/332 and 3/332, Bhausaheb Hire Marg, Malabar Hill, Mumbai 400 006. It was a property of the U.S.S.R. since 1969 and certain officers of Sovfracht, a joint stock company of the Government, were allowed to occupy for residence and office purposes. In the year 1992, US.S.R. disintegrated into several countries and Russian Federation Government came into existence. As per the Presidential Order dated 18.2.1993 issued by the President of Russia, the property of the U.S.S.R. abroad stood vested in the Russian Federation Government and the new Government allowed the said officers of Sovfracht company to continue to occupy the Marine House for the same purposes. In December, 2005, the Consul General of the Russian Federation visited Marine House and found that the watchman was changed and he was not allowed to enter into the premises by the watchman on duty. Therefore, the Consul General lodged a complaint with the Protocol Division of 3 Cri-A-492-09.sxw Mantralaya, Mumbai, on the basis of which an offence was registered and investigation was carried. It was revealed during the investigation that two officers of Sovfracht had, on the bass of forged documents, represented that the Marine House was the property of the said company and had sold it to one Mohiuddin Mohd. Shaikh Dawood, for consideration of One Million U.S. Dollars. It was revealed that the consideration amount was telegraphically transferred by Mohiuddin from his account at Dubai to the account of the vendors at Petro Commerce Branch in Moscow. Two separate sale deeds of 5 Lac U.S.Dollars each were executed and registered and on that basis the said property was handed over to Mohiuddin. It was alleged that Mohiuddin Mohd. Shaikh Dawood, Anand Praful Vohra, Dina Chetan Shah, Lohit Somappa Kankadi and Pravinkumar Somnath Sukla were also involved in the conspiracy and commission of offences. 3. On 21.3.2007, the Senior Police Inspector, Malabar Hill Police Station, submitted a report under Section 169 of Cr.P.C. before the learned Magistrate stating that charge-sheet against the absconding accused, who were the officers of Sovfracht company, was being filed under Sections 465, 467, 468,471 and 429 read with Sec.34 of IPC, but there was no evidence against the remaining accused named above and, therefore, they be discharged. The learned 4 Cri-A-492-09.sxw Magistrate, after hearing the concerned Police Inspector, immediately passed the order and discharged five accused persons, namely, (1) Mohiddin Mhd. Shaikh Dawood, (2) Andnd Vohra, (3) Dina Chetan Shah(4) Lohit Kankadi and (5) Pravinkumar Sukla. 4. Being aggrieved by the said order, the Government of Russian Federation through its Consul General at Mumbai, filed a revision application along with an application for condonation of delay in filing the revision application. By the order dated 15.10.2008, the learned Addl. Sessions Judge allowed the Misc. Application No.1238 of 2008 and condoned the delay in filing the revision application. That order was initially challenged by accused Mrs. Dina Chetan Shah in the present application under Section 482 of Cr.P.C. It was contended that there was no sufficient and satisfactory cause for condonation of delay of 465 days in filing the revision application. In this application, on 16.2.2009, this Court granted ad-interim relief in terms of prayer clause (b) i.e. pending the hearing and final disposal of the revision application, the impugned order dated 15.10.2008 shall remain stayed. It appears that inspite of the said order, due to oversight, the learned Addl. Sessions Judge continued to hear the Revision Application No.1115 of 2008 filed by the original complainant and also allowed the same by order dated 5.3.2009. After that the present application was 5 Cri-A-492-09.sxw amended and the said order dated 5.3.2009 setting aside the order of the Addl. C.M.M. discharging the accused persons was also challenged. 5. At the outset, it may be stated that the learned Counsel for the parties conceded that as the learned Addl. Sessions Judge had allowed the revision application inspite of the stay granted by this Court, the said order be ignored and set aside. The learned Counsel argued in the present matter only on the point of condonation of delay in filing the revision application before the Sessions Court. 6. In the application for condonation of delay, the applicant stated thus :- "3. I say that the Impugned Order came to the notice of the Applicant very much late in the day i.e. in the month of August, 2007 4. I say that thereafter there were series of correspondence and discussions between the said Russian Federation Government and Russian Consulate General in Mumbai. 5. I say that as the Applicant is the Government of Russian Federation and it requires sanctions of its various departments 6 Cri-A-492-09.sxw before initiating any legal action. I say that even for the filing of the above Revision Application, it required the confirmation, sanctions and permission of various departments of the Applicant including the legal department and financial department. Hence, it consumed a lot of time to obtain the said confirmations, sanctions and permissions." It may be stated that on behalf of the Russian Government, the complaint as well as the application for condonation of delay in filing the revision application were filed by Consul General through its Constituted Attorney, Krishna Kishore. 7. On behalf of the accused persons, in reply to the said application, it was contended that the impugned order discharging the said accused was passed on 21.3.2007, while the application for condonation of delay was field on 28.7.2008. It was contended that Krishna Kishore on the basis of the power of attorney dated 23.5.2007 had filed an application for return of the property before the Addl. C.M.M. Girgaon Court and by virtue of the said power of attorney dated 23.5.2007, he had also filed a revision application along with the application for condonation of delay and therefore his contention that it took time for consultation with the different authorities is not correct and the application for 7 Cri-A-492-09.sxw condonation of delay is liable to be rejected. To this, Krishna Kishore filed his affidavit in rejoinder. According to him, on 28.8.2007, he had learnt about the order dated 21.3.2007 passed by the learned Addl. C.M.M. under Sec. 169 of Cr.P.C. and immediately he contacted the Russian Consulate General in Mumbai, who in turn contacted the Government of Russian Federation in Moscow. He further stated thus in paras 4 and 5 :- "4. I say that the Applicant is the Government of Russian Federation and it requires sanctions of its various departments before initiating any legal action. I say that even for the filing of the above Revision Application, it required the confirmation, sanctions and permission of various departments of the Applicant including the legal department and financial departments. Hence, it consumed a lot of time to obtain the said confirmations, sanctions and permissions. 5. Therefore, the delay is caused in filing the above Revision Application. The cause of the delay is genuine. The said delay was caused because of the matter being discussed and evaluated in various departments of the Government of Russian Federation before the final decision was taken by the said Government to move this Hon'ble Court with the present Revision Application." 8 Cri-A-492-09.sxw 8. The learned Counsel for the applicant vehemently contended that the explanation given by Krishna Kishore, Constituted Attorney of the Consul General of Russian Government does not give any specific details as to how the delay was caused and therefore, the bald statement made by him that in consultation with the various departments and authorities in Russian Federation, time was consumed is not sufficient. The learned Counsel placed reliance upon Laxman N. Divekar vs. State of Maharashtra AIR 1998 Bom.176 wherein a learned Single Judge of this Court had quashed the order passed by the Addl. Sessions Judge, Baramati condoning the delay of 750 days in filing an appeal before the Government. The learned Single Judge observed thus in para 5 :- "5. Section 5 of the Limitation Act, 1963 enables the appeal Court to admit the appeal after the prescribed period on the appellant/applicant satisfying the Court that he had sufficient cause for not preferring the appeal in time. It is the satisfaction about the sufficiency of the cause in not preferring the appeal in time that confers the jurisdiction to the appeal Court in condoning the delay in filing appeal. If the appellant does not show the sufficient cause nor does the Court record the finding that the cause shown by the appellant s sufficient in not preferring the appeal in time, the Court does not possess power to arbitrarily condone delay in the name of advancing substantial justice merely because the appellant litigant 9 Cri-A-492-09.sxw happens to be the government. It need not be emphasised that no separate standards to determine the sufficient cause could be laid -- be it a private party or the State -- though the factors which are peculiar to the functioning of the Governmental conditions may require pragmatic approach in justice oriented process. The Court, when the State is an applicant, may give certain amount of latitude because of impersonal nature of administrative working in the State. Nevertheless it is incumbent upon the Court that discretion is exercised in accord with well recognized principles. The discretion so exercised by the Court must proceed on material which spells out sufficient cause. The sufficient cause has to be considered with pragmatism and of course with justice oriented approach but "any cause' cannot be construed as "sufficient cause". It is necessary for the Court to apply its mind to the cause shown to satisfy itself whether the cause so shown is 'sufficient" or not. The Court cannot on its whims jump to the conclusion on generality that the Government cannot be thrown out at the threshold taking general view of the matter that considering the function of the government and its bureaucracy that the delay was caused due to inaction by the government officer without adverting to the facts and cause shown. Each case has to be considered on its own facts. No doubt, in the very nature of the Government functioning the decision is not taken by an individual and the matters are processed at various levels but if in such processing, there is any delay, it is for the government to explain such delay sufficiently setting out the specific facts where the matter was held up which resulted in delay. However, on general, vague and ambiguous averments that the appellant is the State and 10 Cri-A-492-09.sxw because of the rush of the administrative work and other pre- occupations the appeal could not be fled within time, by no stretch could be accepted as sufficient cause. The Court ought to bear in mind that a very valuable right is secured to the successful litigant on expiration of limitation and this right should not be casually disturbed and that applicant is not entitled to condonation of delay as a matter of right. The applicant, before it can seek condonation of delay and invoke discretion of the Court must show that there was no negligence, inaction or want of bona fides on its part." 9. In Collector, Land Acquisition,Anantnag & Anr. vs. Mst. Katiji & Ors. (1987) 2 SCC 107, the Supreme Court observed thus in para 3 :- "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 meaning full 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 11 Cri-A-492-09.sxw in the hierarchy. And such a liberal approach is adopted on principle as it is realized that : 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. 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. 3. "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. 4. 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 does because of a non-deliberate delay. 5. 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. 12 Cri-A-492-09.sxw 6. 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 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. 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 13 Cri-A-492-09.sxw 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. ..." Thus, the Supreme Court in Collector, Land Acquisition vs. Katiji & Ors. held that the Court has to take liberal approach in respect of consideration of sufficient cause shown for condonation of delay so that it subserves the ends of justice. Ordinarily a litigant does not stand to benefit while lodging an appeal late and refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold. Further, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. 10. In G.Ramegowda, Major & Ors. vs. Special Land Acquisition Officer, Bangalore, (1988) 2 SCC 142, Their Lordships observed thus: "16. 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 or omissions of its officers. But a somewhat different complexion is imparted to the matter where government makes out a case 14 Cri-A-492-09.sxw 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. 17. Therefore, in assessing what, in a particular case, constitutes "sufficient cause" for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the government. Governmental 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. In the opinion of the high Court, the conduct of the law officers of the government placed the government in a predicament and that it was one of those cases where the mala fides of the officers should not be imputed to government. It relied upon and trusted its law officers. Lindley, M.R., in the In re National Bank of Wales 15 Cri-A-492-09.sxw Ltd. observed, though in a different context : Business cannot be carried on upon principles of distrust. Men in responsible positions must be trusted by those above them, as well as by those below them, until there is reason to distrust them. in the opinion of the high Court, it took quite some time for the government to realise that the law officers failed that trust. 18. While a private person can take instant decision. a "bureaucratic or democratic organ", it is said by a learned Judge, "hesitates and debates, consults and considers, speaks through paper, moves horizontally and vertically till at last it gravitates towards a conclusion - unmindful of time and impersonally". Now at the end, should we interfere with the discretion exercised by the High Court ? Shri Datar criticized that the delay on the part of government even after January 20,1971 for over a year cannot be said to be either bona fide or compelled by reasons beyond its control. This criticism is not without substance. Government could and ought to have moved with greater diligence and dispatch consistent with the urgency of the situation.. The conduct of government was perilously close to such inaction as might, perhaps, have justified rejection of its prayer for condonation. But as is implicit in the reasoning of the High Court, the unarticulated 16 Cri-A-492-09.sxw thought, perhaps was that in the interest of keeping the stream of justice pure and clean the awards under appeal should not be permitted to assume finality without an examination of their merits...." 11. Taking into consideration the observations made by the Supreme Court in the Collector, Land Acquisition vs. Katiji & Ors. and in G.Ramegowda, Major & Ors., while State should not be given step-motherly treatment, it is not very difficult to understand the delays which are caused in decision taking process in the Government. 12. It is well settled position of law that when an order is passed by the Magistrate under Sec. 169 discharging certain accused, the complainant should be given an opportunity of being heard before such order is passed. However, in this case, no opportunity was given to the complainant when the order came to be passed discharging certain accused persons. As per the affidavit of Krishna Kishore, the constituted attorney of the Consul General of Russian Government, though the order under Sec. 169 Cr.P.C. was passed on 21.3.2007 he came to know about this order, for the first time, on 28.8.2007. The application for condonation of delay along with the revision application was filed on 8.7.2008. 17 Cri-A-492-09.sxw Thus, from the date of knowledge 335 days were taken. The period of limitation is 90 days. Thus, actually, there was delay of 245 days. He has explained that immediately after getting knowledge of that order, he contacted the Consul General of Russian Government in Mumbai, who in turn contacted the Russian Government in Moscow. He explained that according to him, filing of the revision application required confirmation, sanction and permission of the various departments, including the Legal department of the Financial Department. It is contended by the learned Counsel for the applicant that Krishna Kishore was the constituted attorney and the power of attorney is executed in his favour on 23.5.2007 and on the basis of that power of attorney only he had filed not only the application for return of the property, but also the revision application and application for condonation of delay and thus he had authority to take any legal action and therefore, no further sanction could be expected from the Russian Government. This proposition is very simplistic in approach. Even though Krishna Kisore was constituted as power of attorney to proceed with the legal matters, That does not mean that he could take decision as to which action should be taken and which should not be taken. Not only it requires administrative but also financial approvals to file any litigation before any Court, as it may involve huge cost of litigation. There is no reason to presume that Government function in Russia is much different from India. Therefore, in my 18 Cri-A-492-09.sxw opinion, sufficient cause was shown for condonation of delay. 13. In the present case, the property involved is situated in Malabar Hill, which is one of the costliest area in Mumbai City. The value of the property may be running into several crores and it appears that a fraud was committed by some persons and two employees of a company and they disposed of the immovable property of the Russian Government. Whether the accused persons, who were discharged under Sec. 169 really deserve to be discharged or not is a question which can be dealt with while entering into the merits of the case. But if the application of condonation of delay is rejected, the case will be thrown out at the threshold against the Russian Government. Such attitude will not be in the interest of justice and will not enhance the prestige of Indian Judicial System in the international community. When question of substantial justice is pitted against the technical considerations, the cause of substantial justice deserve to be preferred and the matter should not be thrown at the threshold. Taking into consideration all these circumstances, I find that the learned Addl. Sessions Judge was right in passing the impugned order dated 15.10.2008 whereby he condoned the