IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M M O No.72 of 2003. Reserved on 18-11-2001. Date of Decision: 25 .11.2008. _______________________________________________________ Surinder Thakur. ….Petitioner Versus Dheeraj Kanwar and others. … Respondents Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?. Yes. For the Petitioner : Mr. Inderjit Narwal Advocate vice counsel for the petitioner. For the respondent No.1 Mr. Bhupinder Ahuja, Advocate Shri Anup Chitkara, Advocate. For respondent No.4. Mr. J.S. Guleria, Law Officer. For respondent No. 5. Ms. Bhawna Dutta & Mr. Anuj Nag, Advocates. SURINDR SINGH, j. The complainant registered FIR No. 152 of 1993 in Police Station (East) Shimla, which culminated into police challan under Section 341, 325, 506 of the Indian Penal Code against respondents No.1 to 3. The challan was presented in the court of learned Chief Judicial Magistrate, Shimla. Learned Chief Judicial Magistrate which was assigned to the Court of learned Judicial Magistrate (I) Shimla. Vide order dated 20-12-1993, he transferred the case to Gram Panchayat, Pujarli (Beolia), Tehsil and District Shimla for its disposal in accordance with law as the said offences were within the cognizance of Panchayat. The learned Magistrate directed the accused-respondents No.1 to 3 to appear before Whether the reporters of the local newspapers may be allowed to see the judgment? Yes. - 2 - the said Panchayat on 12-1-1994. The petitioner herein, was the complainant. He was not given any notice regarding the transfer of the case to the Panchayat. Therefore, the petitioner could not appear before the Panchayat on the aforesaid date. Even the accused respondents did not appear. Therefore, the matter was ordered to be consigned. The petitioner waited for a considerable time to receive the summons from the Court but later-on, it transpired to him that the case stood transferred to the Panchayat. It is alleged that when he did not receive notice even from the Panchayat, he moved an application in the Court of Judicial Magistrate whereupon the charge-sheet in question was re-called by him vide order dated 23-7-1997. On 11-11-1997, when the record was received, the petitioner was informed about the order of the Panchayat dated 12-1-1994 about the disposal of his complaint. Thereafter, the petitioner had challenged the said order of the Panchayat before the Chief Judicial Magistrate by filing an appeal under Section 67 of the Gram Panchayat Act. The impugned order passed by the Panchayat was set-aside on 28-12-1999 and the respondent Gram Panchayat was directed to dispose of the matter in accordance with law. Respondent No.1 felt aggrieved by the said impugned order of the Chief Judicial Magistrate and filed criminal revision petition No. 151 of 2000, in this Court challenging the orders of learned Chief Judicial Magistrate. Vide a detailed judgment dated 13.8.2002, the petition was allowed and the order impugned was set-aside and the mater was remanded to the learned Chief Judicial Magistrate Shimla (Appellate Court under the Panchayati Raj Act) to consider the following questions :- - 3 - (i) Whether in view of the fact that the case having not been dismissed but only having been consigned, appeal is maintainable or only an order of revival of the case is required to be passed by the Panchcyat/Successor Court, as the case may be? (ii) Whether the appeal is within limitation. If no, whether there is sufficient cause to condone the delay. (iii) Whether in view of the merger of the area having taken place as aforesaid, the case is triable by the Panchayat or by the concerned Judicial Magistrate. This Court had further directed that after determining the said questions, the lower appellate Court will proceed to dispose of the appeal in accordance with law. The parties were directed to be present before the learned Chief Judicial Magistrate on 29.8.2002. After hearing the parties, including the petitioner herein, learned Chief Judicial Magistrate decided point No.1 in favour of the petitioner holding that the appeal challenging the order of the Panchayat was maintainable but after the merger of the said area into the Municipal Corporation, the case was required to be tried by the concerned Magistrate in whose jurisdiction the area fell after the merge. Since the appeal was not within limitation, there was no sufficient cause to condone the delay. Therefore the appeal was dismissed. Against the dismissal of the appeal by the learned Chief Judicial Magistrate on 10-6-2003 on the ground of limitation, the present petition has been filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure on the ground that the delay in filing the appeal was properly explained by moving a separate and formal application under - 4 - Section 5 of the Limitation Act duly supported by the affidavit of the petitioner after the remand of the case by the High Court. learned Appellate Court incorrectly comes to the conclusion that the appeal was barred by limitation. I have heard the learned counsel for the parties and have carefully gone through the record of the case. It is a settled law that the Courts should not adopt a hyper- technical view and pedantic approach for condoning the delay in filing the appeal if there is sufficient cause. Substantial justice is behind the Court’s acceptance of condonation of delay. Normal grounds of sufficient causes may be listed in categories which can never be closed in the twilight of debatable ground between the facts of each case. They should be allowed to remain fluid. The question of the existence of sufficient cause is one to be decided from the facts and circumstances of the particular case. Even it is not necessary that there should be a formal petition to excuse delay though desirable, all that is needed is that the concerned party should show justifiable and sufficient grounds to execute the delay. However, it is difficult to define the meaning of ‘sufficient cause’ or ‘sufficient reason’. To do so would be to crystallize into a rigid definition that judicial power and discretion which the Legislature has for the best of all reasons left undetermined and unfettered. It is also settled law that in determining “sufficient cause”, the circumstances of the case ought to be considered. In the instant case, the record did not show that the petitioner, who was complainant, was ever informed or served by the Panchayat concerned or directed by the learned Magistrate to be present on a particular day before the Panchayat. Though a - 5 - formal application was not required in view of the point framed on limitation by this Court while remitting the case back, yet a formal application was moved before the learned Chief Judicial Magistrate by the complainant/petitioner explaining the delay so as to constitute a ‘sufficient cause’ wherein he stated that on his application to the Court, he was informed on 11-11-1997. Thus, he applied for the copy of the impugned order of Panchayat which was supplied to him on 8-12-1997 and filed the appeal within thirty days from the date on which he was supplied the copy. Learned Chief Judicial Magistrate rejected his plea of acquiring the knowledge as alleged on the ground firstly, that the petitioner did not file along with his appeal application under Section 5 of the Limitation Act, secondly, the petitioner herein did not place on record the copy of the order of JMIC Court No.(1) whereby he had recalled the challan and informed him. Thus he drew the adverse inference against him and the plea of the respondents was relied upon that the petitioner was keeping a track of the proceedings of the proceedings in the case which was transferred to the Panchayat from where he could have enquired about its progress. Thirdly, the fact which mainly weighed into the mind of the learned Chief Judicial Magistrate was that the occurrence had taken place ten years back and during these years, drastic changes have taken place, e.g. the area in question stood merged into the Corporation/NAC and the maximum fine which could a Panchayat have imposed, was rupees 100/- only, in case the accusation stood proved. Under these changed circumstances, if the case is again remanded for trial, it has to be tried by the Court of Judicial Magistrate Ist Class in whose jurisdiction now the merged area fell who can pass substantial sentence which would definitely prejudice - 6 - the rights of the accused/respondents. Therefore against the above background, it was held that the petitioner did not succeed in showing the “sufficient cause” and the appeal was held barred by limitation, thus dismissed. Considering the above reasons, in my opinion, the learned Chief Judicial Magistrate has taken a hyper-technical view in the matter. It is not a question of imposition of fine of rupees 100/- by the Panchayat nor there arises the question of any prejudice having been caused to the accused-respondents, but the question is whether the complainant/petitioner who is a citizen of India and had taken recourse to law, whether for his no fault, he could be penalized in this fashion. For him the law looks dwarf when it is pitched against the illegality committed by an instrumentality of the State in a democratic set up, when we claim that no body is above the law. The complainant has been striving hard to get justice from the Court by pursing his matter at different Forums but unfortunately, because of the hyper technical view taken by the learned Chief Judicial Magistrate and the inaction on behalf of the Panchayat concerned, he could not take his case to a logical end. I am therefore, of the considered view that the reasoning given by the learned Chief Judicial Magistrate is absolutely unsustainable. Accordingly, the findings and reasons on point No.2 with respect to the limitation recorded by him are not tenable in the eyes of law. Otherwise also, the record shows that the complainant neither had acquired the knowledge of the impugned order of the Panchayat earlier nor any notice was ever issued by the Panchayat or the court for his presence, then how he could be denied justice which has caused material prejudice to him. - 7 - In the above circumstances, this petition stands allowed. The delay in filing the appeal before the Chief Judicial Magistrate deserves to be condoned. Hence ordered accordingly. The order dated 10.6.2003 passed in Criminal Appeal No. 1/34 of 1998 by the learned Chief Judicial Magistrate on point No.2. i.e. on limitation question is consequently set-aside. In result the Case No. 79/2 of 1993 FIR No. 152 of 1993 (P.S. East Shimla) titled as State through Surinder Thakur v. Dheeraj Kumar and others be and is hereby remanded to the court of learned Chief Judicial Magistrate Shimla for making it over to the Magistrate having jurisdiction over the area for its disposal in accordance with law. Parties are hereby directed to be present before the Court of learned Chief Judicial Magistrate Shimla on 19-12-2008. The petition is disposed of in the aforesaid terms. (Surinder Singh) Judge. November 25, 2008. (bm)