THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Revisional Jurisdiction)
th
Dated : 25 June, 2024
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SINGLE: THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.Rev.P. No.04 of 2024
Revisionists/Petitioners : Bidhan Trikhatri and Others
versus
Respondent : State of Sikkim
Application for revision under Sections 397
and 401 of the Code of Criminal Procedure, 1973
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Appearance
Mr. Jorgay Namka, Senior Advocate (Legal Aid Counsel) for the
Petitioners/Revisionists.
Mr. S. K. Chettri, Government Advocate for the State-Respondent.
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JUDGMENT (ORAL)
Meenakshi Madan Rai, J.
1. This Criminal Revision Petition impugns the Order of
the Learned Sessions Judge, Sikkim at Gangtok, in Criminal Appeal
Case No.06 of 2023, dated 31-10-2023, by which an Application
filed by the Revisionists, seeking condonation of
388 days’ delay in
filing the Appeal was dismissed by the Learned Court.
2. The genesis of the matter as submitted by Learned
Senior Counsel for the Revisionists/Petitioners, is that, the Learned
Chief Judicial Magistrate, Gangtok, in General Register Case No.05
of 2022, vide its impugned Judgment, dated 23-08-2022, convicted
the three Revisionists for the offences under Sections 454 and 380
of the Indian Penal Code, 1860 (for
short, “IPC”). By the Order on
Sentence, dated 24-08-2022, under Section 454 of the IPC, they
were each sentenced to undergo rigorous imprisonment for five
years, and pay a - (Rupees twenty thousand) only.
fine of ₹ 20,000/
Under Section 380 of the IPC, they were sentenced to simple
Crl.Rev.P. No.04 of 2024
Bidhan Trikhatri and Others vs. State of Sikkim 2
imprisonment for three years each, - (Rupees
with fine of ₹ 10,000/
ten thousand) only, each. The sentences of fine bore default
stipulations. The period of imprisonment were ordered to run
concurrently.
3. Aggrieved thereof, the Revisionists were before the
Learned Sessions Judge in Appeal. As there was a delay of 388
days in filing the Appeal, the Revisionists sought condonation of the
said delay. The Learned Appellate Court vide the assailed Order
dated 31-10-2023 observed that the reasons furnished by the
Revisionists cannot be treated as sufficient cause for admitting
“ ”
the Appeal. That, only normal circumstances had been cited by the
Revisionists and no reason had been mentioned as to why they had
to wait for more than one year to file the Appeal. Accordingly, the
Petition for condonation of delay was dismissed and consequently,
the Criminal Appeal No.06 of 2023.
4. Learned Senior Counsel advanced the argument that
after the conviction of the Revisionists in the said General Register
Case before the Learned Chief Judicial Magistrate, the delay
occurred in filing the Appeal for the reason that the Revisionists
had earlier been given Legal Aid Counsel. Consequent upon their
conviction, they sought to engage a private Counsel. They were
however unable to engage a private Counsel on time, all three
being incarcerated at the relevant time and only the wife of the
Revisionist No.3 taking steps in this context. In November, 2022,
the Sikkim State Legal Services Authority appointed a Legal Aid
Counsel for the Revisionists. As and when the said Counsel was
appointed, the wife of the Revisionist No.3 again informed that
they had decided to engage a private Counsel whose services they
managed to obtain in August, 2023. That, thereupon they
Crl.Rev.P. No.04 of 2024
Bidhan Trikhatri and Others vs. State of Sikkim 3
furnished all relevant documents to the Counsel and the instant
Appeal came to be filed on 18-10-2023. That, due to the above
circumstances, augmented by the fact that the Revisionists were
incarcerated at the relevant time, they were unable to take steps
as expeditiously as they would otherwise have. That, in the Appeal
they seek to agitate the points of non-identification of two of the
Revisionists and also issues regarding the finger prints of all the
Revisionists. That, non-examination of the merits of the Appeal
would seriously prejudice the Revisionists. Hence, the delay be
condoned and the Revision Petition be allowed.
5. Per contra, Learned Additional Public Prosecutor
submits that he has strong objection to the Petition on grounds
that the Revisionists had failed to explain the delay on a day-to-
day basis. That, for the purpose of seeking condonation of delay, it
is imperative tha
t the Revisionists explain everyday’s delay which
would then only tantamount as sufficient cause . That, the
“ ”
Petition be dismissed as the Revisionists were correctly identified
by the Learned Trial Court.
6. I have given due consideration to the rival submissions
advanced by the Learned Counsel for the parties and perused the
Revision Petition.
7. The impugned Judgment of the Learned Trial Court was
pronounced on 23-08-2022. The Appeal ought to have been filed
within sixty days thereof. The Appeal along with the Application
seeking condonation of 388 days’ delay came to be filed only on
18-10-2023. While discussing the parameters for exercising
discretion by the Courts in condoning delay, the Supreme Court in
Sheo Raj Singh (Deceased) through Legal Representatives and Others
Crl.Rev.P. No.04 of 2024
Bidhan Trikhatri and Others vs. State of Sikkim 4
1
vs. considered and discussed its various
Union of India and Another
pronouncements and looked into the approaches adopted by the
Court, sometimes in rejecting a delay of four days only, while at
other times condoning the delay of more than three hundred days.
It was ultimately held that as the Judgments of the Supreme Court
have shown that such an exercise of discretion does at time call for
a liberal and justice-oriented approach by the Courts. The matters
discussed were as follows;
18. State of Nagaland v. Lipok Ao
“
[(2005) 3 SCC 752]
arose out of an appeal where this Court condoned the
State’s delay of 57 days in applying for grant of leave to
appeal before the High Court against acquittal of certain
accused persons. This Court observed that in cases where
substantial justice and a technical approach were pitted
against each other, a pragmatic approach should be taken
with the former being preferred. Further, this Court noted
that what counted was indeed the sufficiency of the cause of
delay, and not the length, where the shortness of delay
would be considered when using extraordinary discretion to
condone the same. This Court also went on to record that
courts should attempt to decide a case on its merits, unless
the same is hopelessly without merit. It was also observed
therein that it would be improper to put the State on the
same footing as an individual since it was an impersonal
machinery operating through its officers.
…………………………………………………………..
20. Lanka Venkateswarlu v. State of A.P.
[(2011) 4
happened to be a case where this Court set aside the
SCC 363]
impugned judgment condoning both a delay of 883 days in
filing the petition to set aside the dismissal order by the
relevant High Court, along with a delay of 3703 days caused
by the respondents in bringing on record the legal
representative of the appellant. This Court observed that
whilst the High Court admonished the Government Pleaders
concerned for their negligence in prosecuting the appeal
before it and not providing a sufficient cause for delay, it
nonetheless proceeded to condone the delay despite holding
the same to be unjustifiable.
21. In Postmaster General v. Living Media India
Ltd. , this Court noted that in cases when
[(2012) 3 SCC 563]
there was no gross negligence, deliberate inaction, or lack of
bona fides, a liberal concession ought to be adopted to
render substantial justice but on the facts before the Court,
the appellant could not take advantage of the earlier
decisions of this Court. Further, merely because the State
was involved, no different metric for condonation of delay
could be applied to it. Importantly, it noted that the
appellant department had offered no proper and cogent
explanation before this Court for condonation of a huge
1
(2023) 10 SCC 531
Crl.Rev.P. No.04 of 2024
Bidhan Trikhatri and Others vs. State of Sikkim 5
delay of 427 days apart from simply mentioning various
dates. The claim on account of impersonal machinery and
inherited bureaucratic methodology of making file notes, it
was held, not acceptable in view of the modern technologies
being used and available. Also, holding that the law of
limitation undoubtedly binds everybody, including the
Government, this Court went on to reject the prayer for
condonation.
…………………………………………………………..
26. G. Ramegowda v. LAO , while
[(1988) 2 SCC 142]
summarising the position of law on “sufficient cause”, had
the occasion to observe that the contours of the area of
discretion of the courts in the matter of condonation of
delays in filing appeals have been set out in a number of
pronouncements of this Court. It was observed to be true
that there is no general principle saving the party from all
mistakes of its the counsel. Noting that there is no reason
why the opposite side should be exposed to a time-barred
appeal if there was negligence, deliberate or gross inaction
or lack of bona fides on the part of the party or its the
counsel, it was further observed that each case will have to
be considered on the particularities of its own special facts.
However, this Court reiterated th
at the expression “sufficient
cause” in Section 5 must receive a liberal construction so as
to advance substantial justice and generally delays in
preferring appeals are required to be condoned in the
interest of justice where no gross negligence or deliberate
inaction or lack of bona fides is imputable to the party
seeking condonation of the delay. This was followed by these
words: (SCC p. 148, paras 15 & 17)
15. In litigations to which Government is a
“
party there is yet another aspect which, perhaps,
cannot be ignored. If appeals brought by Government
are lost for such defaults, no person is individually
affected; but what, in the ultimate analysis, suffers is
public interest. The decisions of Government are
collective and institutional decisions and do not share
the characteristics of decisions of private individuals.
* * *
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.”
Crl.Rev.P. No.04 of 2024
Bidhan Trikhatri and Others vs. State of Sikkim 6
27. Katiji was also noticed by
[(1987) 2 SCC 107]
a Bench of three Hon’ble Judges of this Court in State
of Haryana v. Chandra Mani where we
[(1996) 3 SCC 132]
find the following discussion: (Chandra Mani
case , SCC p. 138, para 11)
[(1996) 3 SCC 132]
11
“ . … When the State is an applicant,
praying for condonation of delay, it is common
knowledge that on account of impersonal
machinery and the inherited bureaucratic
methodology imbued with the note-making,
file-pushing, and passing-on-the-buck ethos,
delay on the part of the State is less difficult to
understand though more difficult to approve,
but the State represents collective cause of the
community. It is axiomatic that decisions are
taken by officers/agencies proverbially at slow
pace and encumbered process of pushing the
files from table to table and keeping it on table
for considerable time causing delay
—
intentional or otherwise is a routine.
—
Considerable delay of procedural red-tape in
the process of their making decision is a
common feature. Therefore, certain amount of
latitude is not impermissible. If the appeals
brought by the State are lost for such default
no person is individually affected but what in
the ultimate analysis suffers, is public interest.
The expression “sufficient cause” should,
therefore, be considered with pragmatism in
justice-oriented approach rather than the
technical detection of sufficient cause for
explaining every day’s delay. The factors which
are peculiar to and characteristic of the
functioning of the governmental conditions
would be cognizant to and requires adoption of
pragmatic approach in justice-oriented
process.”
8. On the bedrock of the foregoing pronouncements and
having considered the case of the Revisionists herein, I find that
consequent upon the pronouncement of the impugned Judgment
they have been relegated to the State Central Prison, Rongyek.
They were unable to take steps expeditiously being dis-advantaged
by the fact of their incarceration and thereby were constrained to
foist the entire responsibility on the wife of the Revisionist No.3.
These circumstances are mitigating circumstances in their favour,
apart from which it has to be observed that the Revisionists are
also entitled to legal Counsel of their choice. If they are not
satisfied with the services of a Legal Aid Counsel and they seek to
Crl.Rev.P. No.04 of 2024
Bidhan Trikhatri and Others vs. State of Sikkim 7
engage a private Counsel the Courts cannot stand in their way, in
their quest for justice as they perceive it.
9. In (supra) while summarising the
G. Ramegowda
position of law on sufficient cause observed that there is no
“ ”
general principle saving the party from all mistakes of its Counsel.
However, the must receive a liberal
expression “sufficient cause”
construction so as to advance substantial justice and that generally
delays in preferring appeals are required to be condoned in the
interest of justice where no gross negligence or deliberate inaction
or lack of bona fides is imputable to the party seeking condonation
of delay.
10. In my considered opinion, there does not seem to be
gross negligence or deliberate inaction on the part of the
Revisionists. The circumstances were not in their favour. The
course of justice ought to be advanced and mere technicalities
ought not to impede the path of justice.
11. In view of the facts and circumstances as discussed
above, the delay has been explained with sufficient cause which
accordingly deserves to be considered and condoned.
12. The impugned Order dated 31-10-2023 of the Learned
Sessions Judge, Sikkim at Gangtok, in Criminal Appeal Case No.06
of 2023, is set aside.
13. Consequently, the delay is condoned.
14. Criminal Revision Petition is allowed and disposed of
accordingly.
( Meenakshi Madan Rai )
Judge
25-06-2024
Approved for reporting : Yes
ds