HIGH COURT OF CHHATTISGARH. BILASRUR Criminal hflisc. Petition No.495 of 2011 PETITIONER: Ffice RESPONDENTS: CBI - Central Bureau of Investigation, of SP CBI, SCR-111, 5-B, CBI Headquarters, 3rd Floor, CGO Complex, Lodhi Road, New Delhi. Versus 1. Amit Jogi, S/o Shri Ajit Jogi, aged 29 years, 03 Motilal Nehru Marg, New Delhi, present Anugraha, Civil Lines, Raipur 2. State of Chhattisg^rh through District Magistrate Raipur C.G. {Petition under Section 378 (3) of the Code of Criminal Procedure, 1973 for grant of leave to appeal} Present: Mr. Goutam Bhaduri with Mr. Santosh Kumar Tiwari and Mr. S.K. Sharma, counsel for the petitioner. Mr. Surendra Singh, Senior Advocate with Mr. Rahul Tyagi & Mr. Shaileridra Sharma, Advocates for respondent No.1. Mr. Jygal Kishore Gilda, Additional Advocate General with Mr. Ashish Shukla, Govt. Advocate and Mr. Akhil Mishra, Deputy Govt. Advocate for the State/respondent No.2. Mr. B.P. Sharma, counsel for complainant Satish Jaggi to assist the prosecytion. .•4 Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.N. Chandrakar, JJ ORDER (12-9-2011) T.P. Sharma. J: - 1. By this-petition under Section 378 (3) of the Code of Criminal Procedure, 1973 (for short 'the Code') along with appeal under Section 378 (2) ofthe Code, the petitioner/Central Bureau of Investigation (for short 'the CBI') has prayed for grant of leave to appeal against the judgment of acquittal of respondent No.1, dated 31-5-2007 passed by the Special Judge under ^.-.^' ^ the Atrocities Act, Raipur in Sessions Trial No.329/2005, whereby the Special Judge while convicting some other acctjsed persons has acquitted respondent No.1 ofthe charges under Sections 120B (1), 302 read with Section 34 and 427 read with Section 34 of the IPC. 2. Present petition has been filed on 3-5-2011 after 1,373 days of its limitation (wrongly calculated as 1,343 days by excluding ninety days instead of sixty days). The petitioner has filed application I.A.No.1 for condonation of delay in filing the petition supported by affidavit and documents. 3. As per I.A.No.1 for condonation of delay filed under Section 5 of the Limitation Act, the petitioner obtained consent for filing appeal from the Department of Personnel & Training on 21-12-2010 afterjudgment in the case of Lalu Prasad Yadav and another v. State of Bihar and another . Initially, the CBI had sent proposal vide its letter dated 7-8- 2007 to the Central Government for consent to file appeal. The Additional Solicitor General of India opined vide its opinion dated 15-10- 20Q7 that this is fit case for filing appeal at the earliest. However, the Department of Legal Affairs advised in the light of appeal filed by the State Government and the complainant, that the object of challenging the order of trial may be achieved. Private party i.e. son of the deceased has also filed revision against the judgment of acquittal within the period of limitation in which the CBI has participated. After judgment in Lalu Prasad's case (supra), the CBI again sought legal advice and obtained cohsent, thereafter, it has filed appeal and has prayed for condonation of delay in filing the petition on the aforesaid circumstances. 1 (2010)58cci .^- ?ra^.,, \ ^^ ./ 4. By filing reply, respondent No.1 objected to the. application for condonation of delay and has specifically claimed'>tftat the CBI had already taken stand before the High Court of Patna prior to decision in Lalu Prasad's case (supra) that in case of investigation and prosecution by the CBI, the State Government has no locus standi to prefer appeal against the judgment of acquittal and only the Central Government is competent to prefer appeal which was not accepted by the High Court of Patna, then the CBI preferred SLP in the year 2007 before the Supreme Court. This is not the case where the CBI was of the view that the appeal filed by the State Government or the appeal/revision filed by private party is competent or will fulfill the purpose and will be the substitute of the appeal which may be filed by the CBI, but the CBI was of the considered view that the appeal filed by the State Government in cas®of trial investigated by the CBI, is not competent. Therefore, it was incumbent upon the CBI to prefer appeal in case it wants to file, but the CBI or the Central Government has not filed appeal. Respondent No.1 has also stated in his reply that the revision filed by the complainant has alr6'ady been admitted which could, in any case, serve the ends of justice, in the present case. Respondent No.1 has vehemently opposed the application for condonation of delay and stated that the CBI has not shown sufficient cause for such inordinate delay in filing the petition/ appeal. 5. We have heard Mr. Goutam Bhaduri, learned counsel for the petitioner; Mr.?Surendra Singh, learned Senior Advocate for respondent No.1; and Mr. Jugal Kishore Gilda, learned Additional Advocate General for the State/respondent No.2, on the application for condonation of delay. We have perused the application for condonation of delay, the documents <^s"^ /'^ ' '"^; ^ i^.-^^^^i 'l li ^B^ ^ J '8, \ J S filed in suppori: thereof and the reply to the application for condonation of delay. 6. Mr. Goutam Bhaduri, learned counsel for the petitioner, vehemently argued that initially, the CBI had sent its proposal for filing appeal vide its letter dated 7-8-2007 to the Central Government (Department of Personnel & Training). The Additional Solicitor General of India has also opined that it is a fit case for filing appeal and on the advice of the Department of Legal Affairs, appeal was not preferred within time. After judgment in the case of Lalu Prasad (supra), again, opinion was sought and after obtaining consent on 21-12-2010, the CBI has preferred the instant petition on 3-5-2011. Mr. Goutam Bhaduri further argued that the petitioner and the Central Government are run by officers who have to abide by the procedural law and on account of working of Governmental machinery delay occurred in taking decision is bona fide. The Central Governrment and the CBI are required to process the file and the file processed through different authorities for taking final decision which took some time. However, following procedure by the Government ^ machinery is not mala fide and delay caused in following the procedure is sufficient cause. Mr. Goutam Bhaduri also argued that the petitioner has filed reply in the criminal revision filed by private party in which it has supported the case of the petitioner therein/revisioner, which shows bona fide of the petitioner herein. Mr. Goutam Bhaduri contended that the Courts are required to take liberal approach in considering the sufficiency of the cause and the Court is also required to take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels. Adopting strict standard of proof may sometimes fails to protract public justice. The petitioner has filed the instant petition/ appeal against the acquittalof respondent No.1 from serious charge of * '"-^ "~s J @'y -^ ^' murder, even otherwise, to protect public interest, opportunity of hearing on merits would be just and proper to both the parties';and by condoning the delay, no prejudice would be caused to respondent No.1 or to any of the parties. 7. Mr. Goutam Bhaduri, learned counsel for the petitioner, placed reliance in the matter of State (NCT of Delhi) v. Ahmed Jaan in which the Supreme Court has held that at the time of considering the application for condonation of delay, sufficient cause is the condition precedent but the courts are required to consider sufficient cause and not the length of delay. In case of petition filed on behalf of Government machinery the court is also required to take practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels. Adoption of strict standard of proof sometimes fails to protract public justice, and it would result in public mischief by skilful managefflent ofdelayin the process offiling an appeal. 8. While supporting the petition, Mr. Jugal Kishore Gilda, learned Additional A^vocate General appearing on behalf of the State/respondent No.2, sutomitted that delay in filing the petition/appeal is bona fide and on account of procedure prevailing in the Government, the CBI was under the bona fide belief that only the appeal filed by the State Government is competent and the Central Government is not having any locus standi to prefer appeal. The appeals filed on behalf of different accused persons and the revision filed against the judgment of acquittal by private party are under consideration before this Court. Therefore, it would be proper and adequate to allow the application for condonation of delay, which would protect the public justice in serious case of murder. (2008)148cc582 9. On the other hand, Mr. Surendra Singh, learned Senior Advocate appearing on behalf of respondent No.1, vehemgntly opposed the petition and submitted that action taken by the petitioner shows the act of mala fide. The CBI has proposed for filing appeal vide its letter dated 7- 8-2007 and it was finalized within two months. The Additional Solicitor General of India has advised that it is a fit case to file appeal at the earliest, but the Government machinery has decided not to file appeal. The CBI has not changed its stand or view after the decision in Lalu Prasad's case (supra), but much before the said decision, prior to 2007, the CBI has objected the maintainability of appeal filed by the State Government before the High Court of Patna (State of Bihar v. Lalu Prasad and others) in Govt. Appeal No.1 of 2007 (SJ) by saying that the State Government is not competent to file appeal against the judgment of acqyittal on the basis of charges investigated by the CBI which has not been accepted by the High Court of Patna and the High Court of Patna has rejected the claim vide its order dated 20-9-2007 which was challenged by Lalu Prasad Yadav and the CBI itself by filing SLP in Cr.A. No.i670/2010. At the time of filing such SLP against the order dated 20- 9-2007 and prior to filing of such appeal, the CBI has taken specific stand that appeal filed on behalf of the State Government is not competent, only the Central Government is competent to file appeal against the judgment of acquittal. Therefore, the CBI is precluded from taking. contradictory stand that as per their view, the appeal filed by the State Government would have served the purpose of filing appeal by the CBI. Mr. Surendra Singh further submitted that even otherwise, the Supreme Court has decided the case of Lalu Prasad (supra) on 1-4- 2010, but after more than eight months ofthe saidjudgment, the CBI has againobtained consent on 21-12-2010 and even after more than five 7 months of such consent, the CBI has filed this .petition which is hopelessly barred by limitation. Mr. Surendra SingM'>a1so submitted that the appeal filed on behalf of the State Government has already been dismissed by this Court vide order dated 18-8-2011 as not maintainable. As submitted by learned counsel for the CBI, the CBI has filed reply in the criminal revision filed by private party and supported the case of the petitioner therein, but even after notice to the CBI in the said criminal revision, for the reasons best known to the CBI, Tt did not appear in that revision at the time of hearing on admission on 7-1-2010, thereafter, in the month of September, 2010, the CBI has filed reply which shows mala fide of the CBI. Mr, Surendra Singh contended that in case of condonation of delay in filing appeal, pari:ies are required to show sufficient cause and the court is required to take liberal approach, but liberal approach does not mean doing injustice to opposite party, and sufficient cayse means presence of legal and adequate reasons. Mr. Surendra Singh further contended that taking decision in theirown sweet time is not sufficient cause. 10.Mr. Surendra Singh placed reliance in the matter of Balwant Singh (Dead) v. JagdishSingh & Ors.3 in which the Supreme Court has held that parties are required to show sufficient cause in case of condonation of delay in filing the petition/appeal, liberal approach does not mean doing injustice to opposite party, sufficient cause means presence of legal-and adequate reasons. Mr. Surendra Singh further placed reliance in the matter of Union of India & Ors. v. Nripen Sarma in which the Supreme Court has held that the delay occurred because of the 3AIR2010SC3043 4AIR 2011SC 1237 ~-J 1 I'f' \--^ respondents took their own sweet time to reach the-conclusion whether the judgment should be appealed or not, is not sufficient cause. 11.1n the present case, as per undisputed facts and submissions, the petitioner had sent its proposal for filing appeal vide its letter dated 7-8- 2007 against the judgment dated 31-5-2007, after sixty days of such judgment and finally in the month of October, 2007, the Central Govemment took the view that the appeal filed by the State Government would serve the purpose and, therefore, the CBI did not file appeal, though advised by the Additional Solicitor General of India for filing such appeal. After judgment dated 1-4-2010 passed in Lalu Prasad's case (supra), the CBI again obtained consent of the Department on 21-12- 2010 and filed the instant petition/appeal on 3-5-2011. These dates clearly reveal that at the time of initial proposal by the CBI, the period of limitation of sixty days had already expired. Second consent was obtained toy the CBI on 21-12-2010, after more than eight months of the judgment of Lalu Prasad's case (supra), and after 21-12-2010 the CBI preferred the instant appeal/petition on 3-5-2011, about more than five ^ " months thereafter. The petitioner has not filed affidavit of the persons concerned who were responsible for causing such delay of not taking decision to file appeal and who were responsible for causing such delay. 12.Admittedly, the CBI had preferred appeal before the Supreme Court vide Criminal Appeal No.670/2010 against the order dated 20-9-2007 passed by the High Court of Patna in Govt. Appeal No. 1/2007 (SJ) in the matter of'State of Bihar v. Lalu Prasad and others. The CBI had taken stand before the High Court of Patna and before the Supreme Court, much prior to 2007, that appeal filed by the State Government in case of trial investigated and prosecuted by the CBI is not competent. Present case -^ was subject matter of the State and the State of.Chhattisgarh after withdrawing from its investigating agency has entrusted the investigation and prosecution ofthe case to the CBI. 13.Lalu Prasad's case (supra) clearly reveals that the CBI has taken specific stand relating to locus standi of the State Government and maintainability of appeal against the judgment of acquittal. The CBI was not debarred or precluded from filing appeal against the judgment of A^T.-' acquittal within the period of limitation, even during the pendency of its criminal appeal before the Supreme Court and Lalu Prasad's appeal in the Supreme Court. 14.While dealing with the question of sufficient cause, the Supreme Court in Ahmed Jaan's case (supra) has observed in para 11 of its judgment thus, "8. The proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay, but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Khshnamurthy6 it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the t'a (1998) 7 SCC 123 : AIR 1998 SC 3222 10 Government without being unduly indulgent to the slow motion of its wheels." '•, •' The Supreme Court has further held that what constitutes sufficient cause cannot be laid down by hard-and-fast rules. Discretion given by Section 5 of the Limitation Act should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. Sufficient cause should receive a liberal construction and the court is required to consider whether the appellant acted with reasonable diligence in prosecuting the appeal. 15.While dealing with the question of sufficient cause and liberal approach, the Supreme Court in Balwant Singh's case (supra) has observed in paras 13 & 14 as follows: - "13......... We may state that even if the term 'sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences onthe right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its bwn conduct, it will be unreasonable to take away that rright on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its right and remedies, it will be equally .^ s: ^. ' ..--<°••'?--,' ?, ff lt». 11 unfair to deprive the other party of a valuable right that has accrued to it in law as a result gf ,his acting vigilantly......... 14. ............. The expression 'sufficient cause' implies the presence of legal and adequate reasons. The word 'sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done suffices to accomplish the purpose in the light of existing circumstances anci when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any ,, unnecessary delay. The test is whether or not a cause t is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3 Edition, 2005]" 16.While dealing with same question in Nripen Sarma's case (supra), the Supreme Court has agreed with following view taken by the Gauhati High Court: - "We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgment should be appealed or not. It is not that they were prevented by any reason which is beyond ^ ^*\;"?"^^\'< ^. ~'w" '^sasaaaf 12 their control to take such a decision in time. Even otherwise, on merits of the case also it does pot appear to have any tenable ground of appfial. In the circumstances, we do not see any merits in this petition." 17.At the time of considering sufficient cause the court is required to consider the working of official machinery and to take liberal approach, but same should not be for causing injustice to opposite party and liberal approach must be based on legal and adequate reasons. Parties are required to show the cause, which prevented them from filing appeal within the period of limitation. In any case, delay howsoever long may be condoned if sufficient cause is shown but laches are not condonable. 18.1-lowever, in the present case, first proposal of the CBI reveals that the CBI has made proposal after the period of limitation and even after advise by the Additional Solicitor General of India in October, 2007, the Central Government/CBI had not preferred appeal, especially when the CBI has taken specific stand before the High Court of Patna and before the Supreme Court that the State Government is not competent to file ^ " appeal and only the CBI/Central Government is competent to file appeal. After the judgment dated 1-4-2010 of the Supreme Court in Lalu Prasad's case (supra), again the Central Government/CBI had not taken immediate step, consent was given on 21-12-2010 after lapse of more than eights months and after obtaining such consent, the CBI has filed the present petition/appeal after more than five months of such consent. This shows that the Central Government & the CBI had no cause to dela-y the filing of the petition/appeal or in processing the files and it cannot be presumed to be the bona fide act. The application for condonation of delay cannot be considered or allowed on the whims and fancies ofthe parties, parties are required toshow sufficient cause based 13 on legal and adequate reasons. The CBI has utterly failed to show any cause much less sufficient cause for delay. Not oniy there is delay in filing but also there is laches, which cannot be condoned. 19.Mr. Shailendra Sharma, learned counsel appearing on behalf of respondent No.1, has filed application (I.A.No.2) for recusal from hearing this case on the ground that one of the members of this Bench (T.P. Sharma, J) was Principal Secretary (Law) when appeal against acquittal was filed by the State of Chhattisgarh. The application is neither supported by any affidavit of respondent No.1 nor any document, nor it appears that Mr. Shailendra Sharma has acted within the parameters of authority conferred on him by Vakalatnama of respondent No.1. Facts mentioned in the application are thus unfounded. 20. Present application for recusal has been filed with response to notices in appeal against acquittal for hearing on the application for condonation of delay. It is noteworthy that other matters arising out of the same impugned judgment have been fixed for final hearing as per the Supreme Court's order for expeditious disposal and objection to hearing of the matter by one of us (T.P. Sharma, J) was never raised either by respondent No.1 herein even in the revision against his acquittal in which he has caused appearance or by other persons who have filed appeals against their conviction vide the same judgment by which respondent No.1 was acquitted. It is pertinent to mention that since 2008 one of us (T.P. Sharma, J) has been member of the Division Benches hearing appeals by twenty-eight other accused persons who have filed appeals against their conviction vide the same judgment by which respondent No.1 herein was acquitted. 14 21. It is a matter of fact that one of the members of this Benph (T.P. Sharma, J) was Principal Secretary (Law) when appeal agairist acquittal was processed and filed by the State of Chhattisgarh. We have no hesitation in disclosing and declaring that none of us has prejudged the