Criminal Revision No.844 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.844 of 2004 Date of Decision:22.03.2010 Amarjit Singh and another .....Petitioners Versus State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Argued by: Mr.Rajesh Pal Kansal, Advocate as amicus curiae, for the petitioners. Mr.Ajaib Singh, Additional Advocate General, Punjab, for the respondent-State. **** MEHINDER SINGH SULLAR, J. The matrix of the facts culminating in the commencement, relevant for disposal of the present revision petition and emanating from the record, is that originally in the wake of statement of PW-complainant Balbir Singh son of Partap Singh, a criminal case was registered against petitioners Amarjit Singh son of Tara Singh, his son Kulwinder Singh @ Jojo, and their co-accused, namely, Swinder Singh @ Ghuk son of Saudagar Singh and Shinder Singh son of Jagir Singh, for having caused injuries to PWs Shamir Singh and Partap Singh etc., vide FIR No.15 dated 18.02.1993, on accusation of having committed the offences punishable under Sections 326, 325, 324, 323, 148 ad 149 IPC by the police of Police Station Sarhali, Tehsil Tarn Taran, District Amritsar. 2. Having completed all the codal formalities, the trial Magistrate convicted and sentenced the accused vide impugned judgment of conviction and order of sentence dated 09.07.2002, in the manner indicated therein. Criminal Revision No.844 of 2004 2 3. Aggrieved by the impugned judgment of conviction and order of sentence, petitioners convicts-Amarjit Singh and his son Kulwinder Singh, filed the appeal before the appellate court along with an application for condonation of delay under Section 5 of the Limitation Act read with Section 473 Cr.P.C., inter alia, pleading that their counsel did not tell them regarding the filing of appeal. They were illiterate persons, were not conversant with the judicial proceedings and were not aware of the fact of the filing of the appeal. They were under the impression that the trial court had released them on bail after depositing the fine imposed upon them. They came to know about their conviction and sentence only about fifteen days prior to the filing of the appeal on 14.03.2003 against the judgment of conviction and order of sentence dated 09.07.2002, when they were already arrested and were sentenced to judicial lock up. In all, the petitioners claimed that as the delay of seven months and five days in filing the appeal was not intentional, therefore, they prayed for its condonation. 4. The State contested the prayer and filed reply denying all the allegations of the petitioners in this respect. According to the prosecution, although the petitioners were released on interim bail to enable them to file the appeal, they were represented by their counsel and were fully aware of the provisions of law, but still they did not file the appeal within the period of limitation. Thus, the prosecution prayed that since, no ground for condonation of delay is made out, so, the application for condonation of delay be dismissed. 5. The matter came to be disposed of before the Additional Sessions Judge (Adhoc), Fast Track Court, Amritsar, who dismissed the application under Section 5 of the Limitation Act vide impugned order dated 20.03.2004. The operative part of which is as under:- “So, the unexplained intentional and deliberate long delay of seven months and five days cannot be condoned in the absence of any sufficient cause. Accordingly, the application under Section 5 of the Limitation Act being without merits is hereby dismissed. The accused be sent to jail to undergo the sentence of imprisonment awarded to them as per the judgment and order dated 09.07.2002 passed by learned Judicial Magistrate Ist Class, Tarn Criminal Revision No.844 of 2004 3 Taran and necessary warrants of commitment be issued. File be consigned to the record room”. 6. The petitioners did not feel satisfied with the impugned order and filed the present revision petition. That is how I am seized of the matter. 7. Assailing the impugned judgment, learned counsel for the petitioners contended with some amount of vehemence that although there was sufficient cause for condoning the delay in filing the appeal, as the petitioners were not going to be benefitted, in any manner, by delaying the appeal, but the lower appellate court wrongly dismissed their application. Thus, he prayed for acceptance of the present revision petition. 8. Hailing the impugned judgment, on the other hand, learned State Counsel argued that since, there was no sufficient cause to condone the delay, so, the lower appellate court has rightly dismissed the application filed by the petitioners under Section 5 of the Limitation Act and no interference is warranted in this connection. 9. Having heard the learned counsel for the parties, having gone through the record of the case with their valuable help and after considering the matter deeply, to my mind, the lower appellate court has committed a legal error in dismissing the application for condoning the delay culminating in the dismissal of the appeal as time-barred. 10. As is evident from the record that instead of deciding the matter on merits, the lower appellate court dismissed the appeal as time-barred vide impugned judgment. 11. Possibly no one can dispute with regard to the law laid down in the judgments of, the Hon'ble Apex Court in case State of Nagaland Versus Lipok AO & Others, 2005(3) S.C.C. 752 : 2005 A.I.R. (SC) 2191, this Court in case Ashok Versus State of Haryana, 2001(1) Recent Criminal Reports(Criminal) 597, Madhya Pradesh High Court in case Ghansu Yadav and others Versus State of M.P., 2005(4) Recent Criminal Reports(Criminal) 112, and Jharkhand High Court in case Sona Ram Versus State of Jharkhand, 2004 Cri.L.J. 1925 : 2004(3) Recent Criminal Reports (Criminal) 217, relied upon on behalf of the petitioners that if there are sufficient cause, delay should be condoned and the law declared in the judgments of, the Hon'ble Apex Court in State (Delhi Criminal Revision No.844 of 2004 4 Administration) Versus Dharampal, 2001(4) Recent Criminal Reports (Criminal) 550, this Court in Devi Sahai Versus Mahabir Prashad, 1997 (4) Recent Criminal Reports(Criminal) 651, and Kerala High Court in case K.Kutan Nair Versus P.Mammi, 1999(4) Recent Criminal Reports (Criminal) 428, relied by the lower appellate court and also on behalf of the State that if no sufficient cause is proved, then delay should not be condoned. It means, this criminal case has to be decided on its peculiar facts and circumstances. 12. The basic concept of law of limitation is well settled. The Hon'ble Apex Court in cases Ram Nath Sao alias Ram Nath Sahu and others Versus Gobardhan Sao and others, AIR 2002 Supreme Court 1201 and The State of West Bengal Versus The Administrator, Howrah Municipality and others, (1972) 1 Supreme Court Cases 366; AIR 1972 SC 749, has reiterated that the expression "sufficient cause" within the meaning of Section 5 of the Act should receive a liberal construction when no mala fide is imputable to a party, so as to advance substantial justice. 13. Sequelly, in Sital Prasad Saxena(dead) by LRs Versus Union of India and others, AIR 1985 Supreme Court 1, it was ruled that the Courts should recall that “What has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties. 14. Likewise, the Hon'ble Apex Court in cases N.Balakrishnan Versus M.Krishnamurthy, (1998) 7 Supreme Court Cases, 123 and Collector, Land Acquisition, Anantnag and another Versus Mst.Katiji and others, AIR 1987 Supreme Court 1353, has ruled that 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 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 and enumerated the following principles:- Criminal Revision No.844 of 2004 5 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 done 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 malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 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. 15. Such, thus, being the legal position and material on record, now the core question that arises for determination in this petition is that whether the lower appellate court was legally correct in dismissing the application for condonation of delay culminating into the dismissal of appeal being time-barred or not? 16. It is not a matter of dispute that both the petitioners were convicted and sentenced by the trial Magistrate to undergo rigorous imprisonment for a period of two and a half years, one year, six months and Criminal Revision No.844 of 2004 6 three months each, for the commission of offences punishable under Sections 326, 326/34, 325/34, 324, 324/34 and 323/34 IPC, besides imposing sentence of fine. 17. Sequelly, the co-accused of the petitioners were also convicted and sentenced in the same manner, as depicted in the impugned judgment of conviction and order of sentence. 18. The petitioners did not file the appeal against their conviction within the stipulated period of limitation, but filed the same after seven months and five days, along with an application for condonation of delay, invoking the provisions of Section 5 of the Limitation Act. 19. Having regard to the rival contentions of the learned counsel for the parties and after bestowal of thoughts over the entire matter, to me, the lower appellate court ought to have condoned the delay in filing the appeal by the petitioners, who were convicted and sentenced for serious offences. Not only that, they were entitled to file the statutory appeal as contemplated under Section 374 of the Code of Criminal Procedure, they are also entitled to the protection of law flowing from Articles 20 and 21 of the Constitution of India, which enshrines and guarantees the precious right of life and liberty to a person, deprivable only on following the procedure established by law in a fair trial. Meaning thereby, assurance of a fair trial is the first imperative of the dispensation of justice. Since, this is a case where the petitioners-accused were convicted for a long term of imprisonment, fine and the offences charged were of grave nature, so, it was obligatory on the part of the lower appellate court to provide the opportunity of fair trial(appeal) in the matter by condoning the delay in the interest of justice as contemplated under Section 5 of the Limitation Act. 20. The matter did not rest there. Petitioner No.2 is none else but the son of petitioner No.1, who has been convicted and sentenced with serious offences as well, in the manner depicted here-in-above. It is a matter of common knowledge that no prudent person would accept the conviction and sentence awarded by the trial Magistrate as such, and would not challenge the same in the appellate court for such grave offences. They were not to be benefitted, in any manner, in not filing the appeal. On the contrary, non-filing the appeal within limitation by the petitioners appears to be on account of their lack of awareness, illiteracy and niceties of legal Criminal Revision No.844 of 2004 7 procedure in filing the appeal as projected by them. There was no occasion to disbelieve the 'sufficient cause' for condonation of delay pleaded by them. Otherwise also, the lower appellate court ought to have decided the appeal in a criminal matter on merits, in order to decide the real controversy between the parties, instead of dismissing the same on technical point of limitation. 21. In the light of aforesaid reasons, to my mind, there were sufficient cause for condoning the indicated delay in filing the appeal. The lower appellate court ought to have condoned the delay in the interest and to advance the cause of justice. Therefore, the delay in filing the appeal is hereby condoned in the obtaining circumstances of the case. Hence, the lower appellate court appears to have committed procedural irregularity, patent illegality, gravely prejudicing and jeopardising the statutory right of appeal of the petitioners to challenge their conviction. Therefore, the impugned order cannot legally be sustained under the present set of circumstances. 22. For the reasons recorded here-in-above and without commenting anything on merits, lest it may prejudice the case of either side during the course of hearing of the appeal, the revision petition is hereby accepted and the impugned judgment is set aside. The matter is remitted back to the Sessions Judge, Amritsar and he may keep the appeal on his own Board or may assign to some other competent court for deciding the appeal afresh on merits, in accordance with law. 23. The petitioners are directed to appear before the Sessions Judge, Amritsar, on 29.04.2010. March 22, 2010 ( MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter?Yes/No