THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
th
Dated : 27 November, 2024
------------------------------------------------------ ------------------------------------------------
DIVISION BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
------------------------------------------------------------------------------------------------------
I.A. No.01 of 2023 in CRL.L.P/41/2023/(Filing No.)
Applicant : State of Sikkim
versus
Respondents : Pratiksha Rai and Another
Application under Section 5 of the Limitation Act, 1963
-------------------------------------------- ---------------------------------------------
Appearance
Mr. S. K. Chettri, Additional Public Prosecutor for the State-
Applicant.
Mr. Yozan Rai, Advocate for the Respondents.
-----------------------------------------------------------------------------------------
ORDER
Meenakshi Madan Rai, J.
1. By filing the instant application under Section 5 of the
Limitation Act, 1963, the Applicant/State of Sikkim seeks
condonation of fifty- leave to Appeal.
six days’ delay in filing the
2. Relevantly, it may be mentioned that on 25-08-2023
the first application came to be filed and subsequently a better
affidavit was filed on 18-03-2024.
3. Learned Additional Public Prosecutor advancing the
grounds that led to the delay contended that, the delay was neither
malafide nor intentional, but occurred on account of the prolonged
official process that requires obtaining of opinions and approvals
from the chain of authorities before the Appeal can be filed. That,
the State-Applicant seeks to assail the Judgment of the Court of
the Learned Sessions Judge, at Namchi, in Sessions Trial Case
No.03 of 2020 (State of Sikkim vs. Pratiksha Rai and Another), in
which the Respondents were acquitted of the offence under
I.A. No.01 of 2023 in CRL.L.P/41/2023(Filing No.) 2
State of Sikkim vs. Pratiksha Rai and Another
Sections 302 and 34 of the Indian Penal Code, 1860 (hereinafter,
he Judgment having been pronounced on 31-03-
the “IPC”). T
2023, the leave to Appeal was to have been filed within ninety
, however a copy of the Judgment was made available by the
days’
Learned Trial Court only on 18-04-2023, although application for
such copy was made on 04-04-2023. The period of limitation
expired on 30-06-2023, which resulted in the delay of fifty-six
That, after procurement of the Judgment, it had to be
days’.
placed before the Superintendent of Police, Namchi District, the
Deputy Inspector General of Police, Namchi Range, the Legal
Officer of the Police Department, the Director General of Police and
other senior officials of the Law Department, which being a time
consuming process, resulted in the delay which may be condoned
bearing in mind the gravity of the offence which culminated in an
acquittal by the Learned Trial Court.
4. Vehemently objecting to the prayers advanced by
Learned Additional Public Prosecutor, Learned Counsel for the
Respondents walked this Court through the Judgment of the
Supreme Court in
Postmaster General and Others vs. Living Media
1
and urged that the Supreme Court has
India Limited and Another
specifically held therein that, a government body ought to have a
reasonable and acceptable explanation for the delay and show
bonafide efforts. That, the government departments are under a
special obligation to ensure that they perform their duties with
diligence and commitment. That, condonation of delay is an
exception and should not be swirled for the benefit of a few. In
the said matter, considering that there was no proper explanation
offered by the department nor were cogent reasons offered to
1
(2012) 3 SCC 563
I.A. No.01 of 2023 in CRL.L.P/41/2023(Filing No.) 3
State of Sikkim vs. Pratiksha Rai and Another
condone the delay of 427 days the Petition was dismissed.
’
Similarly, in the instant case in the absence of any cogent reasons
which suffices to condone the delay, the Petition ought to be
dismissed.
5. We have heard Learned Counsel for the parties and
given due consideration to their submissions. The grounds as put
forth by the State-Applicant for the delay are inter alia as follows;
“…………………………………………………………………………
1.
…………………………………………………………………………
2.
…………………………………………………………………………
3.
…………………………………………………………………………
4. That there is a delay of 56 days in filing an
appeal due to awaiting the correct opinion, the
file was processed back and forth from one
office to other for further examination to
ascertain as to whether to file an appeal or not
since the State represents the cause of the
community.
5.
…………………………………………………………………………
6. That the judgment was pronounced on
31.03.2023 by Ld. Sessions Judge Namchi.
The Prosecution had filed for procuring certified
copy of judgment to the copy section on
4/04/2023. That only on 18/04/2023 the
judgment copy was made ready by the copy
section and was supplied to the prosecution
branch duly obtaining signature of Prosecution
staff ASI K. B. Sunar in the form which was
earlier submitted to the copy section while
applying the certified copy.
7. That on the same day i.e. on 18/04/2023 the
certified copy of judgment was sent to the
office of Superintendent of Police Namchi
District who is the competent authority for
perusing the matter and seeking legal opinion
for filing an appeal.
8. That on 19.04.2023 the Superintendent of
Police Namchi District had forwarded the file to
the office of Ld. Public Prosecution, Namchi
Court through the Court inspector Namchi for
legal opinion. The same day, the then Court
inspector PI Thinlay Gyatsho Rai had put up the
file before Ld. Public Prosecutor for comments
on judgment with respect to reasons for
acquittal and for highlighting the grounds for
appeal before higher forum.
9. That on 27/04/2023 the Ld. Public Prosecution
Mr. Bhupendra Pokhrel had given an opinion
with regard to reasons for acquittal and
grounds for appeal. The Public Prosecutor has
given his Legal opinion in respect to file an
appeal that there are no sufficient grounds to
I.A. No.01 of 2023 in CRL.L.P/41/2023(Filing No.) 4
State of Sikkim vs. Pratiksha Rai and Another
prefer an appeal before the higher forum. For
that, any further opinion, if required can be
sought from Office of the Learned Advocate
General. Subsequently, after having received
the legal opinion from the office of the Ld. P.P,
the file was forwarded to the office of
Superintendent of Police, Namchi for further
necessary action.
10. Thereafter, the Superintendent of Police
forwarded the file to Director General of Police
Namchi branch for further opinion for filing an
appeal befo
re the Hon’ble High Court. The
Director General of Police has opened that
although in the instant case the concerned
Public Prosecution has given that there are no
sufficient grounds for preferring an appeal but
as this case is a heinous crime under Section
le Ld.
302 IPC and in the judgment the Hon’b
Trial Court has commented that the accused
persons deserved benefit of doubt and
forwarded the file to Legal Officer,
Headquarters Gangtok on 15/04/2023 for
further comments.
11. That the Legal Officer has given her opinion for
prefer an appeal that due to several
contradictions in the evidence of the
prosecution witnesses the respondents were
acquitted by Ld. Sessions Judge, at Namchi in
Sessions Trial Case No. 3 of 2020 in the matter
of (State of Sikkim v. Pratiksha Rai and
Another). However, unless examined the
entire case records i.e depositions of all the
witnesses, Section 313 Cr.P.C of the accused
and the charge framed by the Hon’ble Court, it
is not prudent to comment in such a heinous
offence. The Legal Officer of Police
Department, the file was forwarded to Deputy
Inspector General of Police for taking further
necessary action.
12. That on 23/05/2023 the Deputy Inspector of
General, again the file was forwarded to
Superintendent of Police Namchi, South to
furnished the entire documents i.e Certified
copy of judgment, 313 Cr.P.C and entire
depositions of Prosecution witnesses & other
relevant documents. Thereafter the
Superintendent of Police forwarded the file to
concerned Court Inspector Namchi on same
day i.e 23.05.2023 for obtaining the Certified
copy of Judgment, 313 Cr.P.C, copy of charge
framed against the accused by Hon’ble Court
and other relevant documents.
13. Thereafter, the Court Inspector was obtained
(sic.) the Certified copy of Judgment dated
31.03.2023. 313 Cr.P.C, Charge framed against
the accused along with relevant documents and
same was forwarded to Superintendent of
Police, Namchi on 30.05.2023. That the Court
Inspector, Namchi forwarded the file to the
Deputy Inspector General of Police, Namchi
Police Range, Police Headquarters along with all
I.A. No.01 of 2023 in CRL.L.P/41/2023(Filing No.) 5
State of Sikkim vs. Pratiksha Rai and Another
relevant documents, depositions, 313 Cr.P.C on
2.06.2023.
14. That the Deputy Inspector General of Police
Namchi Police Range, Police headquarter,
Gangtok again forwarded the file to Legal
Officer, Police Headquarters Gangtok by stating
that
“entire case records are ready for filing an
appeal and the same was forwarded to Special
Director General of Police/Law & Order” for
further comments on 03.06.2023.
15. Thereafter, on 8/6/2023 the legal Officer, Police
Headquarters, Gangtok has given the valuable
opinion and forwarded the file to Deputy
Inspector General of Police, Namchi for further
necessary action. The opinion of the Legal
Officer has extracted herein below:-
/o Dhan Bahadur Rai
“PW 10 Roshan Kr Rai, S
(deceased) deposed that: I do not remember
the exact date but it was in the month of
December 2020, there was fight between my
father and mother in the courtyard of our
house. My maternal uncle was also involved in
the said fight. I saw my maternal uncle
assaulting my father. The above statement
was not demolished in the cross examination.”
The above statements were corroborated by
the seizure witnesses and by the IO of the
case…”
16. That on 15/6/2023 again the Deputy Inspector
General of Police forwarded the file to
Additional Advocate General, High Court of
Sikkim
“for valuable Legal opinion to prefer an
appeal before the Hon’ble High Court of Sikkim”
17. Thereafter on 16/06/2023 the Ld. Additional
Advocate General has given the opinion for
filing an appeal after careful perusal of the
judgment, 313 statements, depositions of
prosecution witnesses. The opinion of Ld.
Additional Advocate General has extracted
herein below:-
“That the injuries on the body of the deceased
have been proved by the prosecution. There
are no other reasons apart from the bodily
injury on the body on the body of the deceased
which could have caused death of the
deceased. There is strong circumstances and
perusal of the copy of impugned judgment,
evidences and other
documents on records.”
18. That the file was forwarded to Deputy Inspector
General of Police Namchi Range on 16.06.2023.
Again, the Deputy Inspector General of Police
was forwarded the file to Legal Officer for
Government approval. The Legal Officer was
again forwarded the file to Deputy Inspector
General of Police, Namchi Police Range. The
Deputy Inspector General of Police Namchi was
forwarded the file to Special Director General of
Police/Law & Order on 17/06/2023 and the
same was forwarded to Director General of
Police for further comments.
I.A. No.01 of 2023 in CRL.L.P/41/2023(Filing No.) 6
State of Sikkim vs. Pratiksha Rai and Another
19. That after going careful perusal (sic.) the
Director General of Police had given his Legal
opinion for preferring an appeal and the file
was forwarded to Chief Secretary, Government
of Sikkim on 21.06.2023. Thereafter, the Chief
Secretary forwarded the file to Law Secretary
on 22.06.2023 for his valuable opinion.
20. That the L.R-cum-Secretary, Law & P.A
Department had forwarded the file to joint LO
–
1 on 27/06/2023 for examined the file in
details. The Joint (L.O) 1 forwarded the file
–
to Assistant Government Advocate for further
examined the file in details. The Assistant
Government Advocate examined the file and
the same was forwarded again to Joint (L.O)
–
1 on 30.06.2023. After examined the same
was forwarded to L.R-cum-Secretary, Law &
P.A Department for his valuable opinion. The
L.R-cum-Secretary, Law & P.A Department has
given his opinion and forwarded the file to
Director General of Police, Headquarters
Gangtok.
21. That on 12.07.2023 the Director General of
Police forwarded the file to Chief Secretary,
Government of Sikkim for Government
approval.
22. That on 15.07.2023 the file was forwarded to
Hon’ble Chief Minister, Government of Sikkim
for Government approval.
23. That on 25.07.2023 eventually
“the file was
sanction for preferring an appeal before the
Hon’ble High Court of Sikkim”
24. Thereafter, the file was forwarded to Chief
Secretary, Government of Sikkim and the Chief
Secretary forwarded the file to Director General
of Police and the Director General of Police
again forwarded the file to Legal Officer for
forwarding the file to Office of Advocate
General for filing an appeal.
25. That on 31.07.2023 the Legal Officer Police
Headquarters, Gangtok, forwarded the file to
the Office of the Advocate General for
preferring an appeal before the Hon’ble High
Court of Sikkim.
26. Accordingly, the said file was forwarded to
Additional Public Prosecutor, Office of the
Advocate General from the Ld. Additional
Advocate General on 1/08/2023. Thereafter,
on perusal of the entire case record by the
Additional Public Prosecutor, it was found that
the certified copy of FIR, medical report and
other relevant documents were not available in
the file which was required for preparation of
appeal. This being the situation a telephonically
conversation was made by the Ld. Additional
Public Prosecutor to the IO of the case
requesting him to furnish the certified copy of
the above said documents. The investigation
Officer of the case submitted the said
documents to this office for filing an appeal.
I.A. No.01 of 2023 in CRL.L.P/41/2023(Filing No.) 7
State of Sikkim vs. Pratiksha Rai and Another
Thereafter, the same was placed before the
Additional Advocate General for her vesting. As
per the direction, the necessary correction was
made in the appeal. As such, the leave to
appeal along with the memorandum of appeal
and application for condonation of delay of 56
days is being filed on 25.08.2023 before this
Hon’ble Court.
27.
………………………………………………………………………….
28.
………………………………………………………………………….
29.
………………………………………………………………………….
30. That it is humble submission that the appeal
ble Court has
filed by the State before the Hon’
substantial merit in the case & raises
substantial questions of Law which are
important for interest of justice. The appeal
also raises fundamental question as to whether
the eye witnesses of prosecution can be relied
to convict the respondent or whether the Ld.
Trial Court failed to considered the legal aspect.
31. That there is 56 fifty-six days delay in filing an
appeal before the Hon’ble Court.
………………………………………………………………………….”
6. On examining the certified copy of the Judgment, it
appears that there is no block stamp affixed by the Copy Section
“ ”
of the Learned Trial Court to enable this Court to examine the date
on which the certified copy of the Judgment was applied for by the
Applicant or when the copy was made available to the said
Applicant. We have also noticed that the Applicant has specifically
mentioned that the Judgment having been pronounced on 31-03-
2023, the Prosecution filed for the certified copy of the Judgment
on 04-04-2023 which was made available on 18-04-2023. Indeed,
it is noticed that the Prosecution failed to apply for the certified
copy immediately on pronouncement but having applied for it after
a few days, it was made available by the Court only after two
weeks sans reasons. Hence, in our considered view the period of
limitation would begin to run from 18-04-2023.
I.A. No.01 of 2023 in CRL.L.P/41/2023(Filing No.) 8
State of Sikkim vs. Pratiksha Rai and Another
(i) That, having been said this Court in
State of Sikkim vs.
2
while disposing of a similar Petition seeking
Suresh Pradhan
condonation of sixty days delay inter alia observed that;
5. Whatever be the reasons
“ ……………………….
that the Petitioner seeks to set forth for condonation
of delay, it is apparent that there has been a
lackadaisical, laid back and callous attitude on the
part of the officers concerned in processing their
opinions and forwarding the File from their respective
office to the next authority.
”
On pain of suffering we reiterate this opinion in the facts and
circumstances of this case as well.
(ii) At this juncture, it is essential to peruse the exposition
of the Hon’ble Supreme Court on matters pertaining to delay in the
case of (supra) the Supreme
Living Media India Limited and Another ,
Court observed that in cases when there was no gross negligence,
deliberate inaction, or lack of bona fides, a liberal concession ought
to be adopted to render substantial justice. However, merely
because the State was involved, no different metric for
condonation of delay could be applied. The Supreme Court also
noticed that the Appellant department had offered no proper and
cogent explanation before it for condonation of delay of 427 days
’
apart from simply mentioning various dates. The claim on account
of the impersonal machinery and inherited bureaucratic
methodology of making file notes was not acceptable in view of the
modern technologies in use and available. The Court thus went on
to reject the prayer for condonation of delay.
(iii) In
Esha Bhattacharjee vs. Managing Committee of
3
, the High Court had
Raghunathpur Nafar Academy and Others
condoned the delay of 2449 days . The Supreme Court while
’
considering its various pronouncements on the question of delay
2
I.A. No.02 of 2023 in CRL.L.P/16/2023/(Filing No.) of this High Court decided on 18-10-2023.
3
(2013) 12 SCC 649
I.A. No.01 of 2023 in CRL.L.P/41/2023(Filing No.) 9
State of Sikkim vs. Pratiksha Rai and Another
observed that, neither leisure nor pleasure has any room while one
moves an application seeking condonation of delay almost seven
years, on the ground of lack of knowledge or failure of justice.
Reference in the said matter was made to
N. Balakrishnan vs. M.
4
where the following observations were made;
Krishnamurthy
11.
“ … The law of limitation fixes a lifespan for
such legal remedy for the redress of the legal injury
so suffered. Time is precious and wasted time would
never revisit. During the efflux of time, newer causes
would sprout up necessitating newer persons to seek
legal remedy by approaching the courts. So a lifespan
must be fixed for each remedy. Unending period for
launching the remedy may lead to unending
uncertainty and consequential anarchy. The law of
limitation is thus founded on public policy. It is
enshrined in the maxim interest reipublicae up sit finis
litium (it is for the general welfare that a period be
put to litigation). Rules of limitation are not meant to
destroy the rights of the parties. They are meant to
see that parties do not resort to dilatory tactics but
seek their remedy promptly. The idea is that every
legal remedy must be kept alive for a legislatively
fixed period of time.
”
(iv) More recently the Supreme Court in
Sheo Raj Singh
(Deceased) through Legal Representatives and Others vs. Union of India
5
was considering the matter at the instance of certain
and Another
affected landowners who had challenged the Order dated 21-12-
2011 passed by the Learned Single Judge of the High Court of
Delhi. By the Order under challenge, the High Court had allowed
an application filed by the Union of India under Section 5 of the
Limitation Act, 1963 and thereby condoned the delay of 479 days
in presentation of an Appeal from the decision of the Reference
Court under Section 18 of the Land Acquisition Act, 1894. The
delay of 479 days in presentation of the Appeal was condoned but
not without the High Court imposing costs of 10,000/- on the first
₹
Respondent. The Supreme Court, in Appeal, considered a catena
4
(1998) 7 SCC 123
5
(2023) 10 SCC 531
I.A. No.01 of 2023 in CRL.L.P/41/2023(Filing No.) 10
State of Sikkim vs. Pratiksha Rai and Another
of Judgments on the point of condonation of delay and ultimately
opined as follows;
41. Having bestowed serious consideration to
“
the rival contentions, we feel that the High Court’s
decision to condone the delay on account of the first
respondent’s inability to present the appeal within
time, for the reasons assigned therein, does not
suffer from any error warranting interference. As the
aforementioned judgments have shown, such an
exercise of discretion does, at times, call for a liberal
and justice-oriented approach by the Courts, where
certain leeway could be provided to the State. The
hidden forces that are at work in preventing an
appeal by the State being presented within the
prescribed period of limitation so as not to allow a
higher court to pronounce upon the legality and
validity of an order of a lower court and thereby
secure unholy gains, can hardly be ignored.
Impediments in the working of the grand scheme of
governmental functions have to be removed by taking
a pragmatic view on balancing of the competing
interests.
Conclusion
42. For the foregoing reasons and the special
circumstances obtaining here that the impugned order
reasonably condones the delay caused in presenting
the appeal by the first respondent before the High
Court, the present appeal is, accordingly, dismissed.
Pending applications, if any, also stand disposed of.
”
7. Thus, after meticulously perusing and considering the
litany of Judgments extracted hereinabove, it is clear that the
State-Applicant has to be treated at par with any other litigant and
no special favour is to be bestowed on them while considering the
Petition for delay, merely by virtue of the fact that they are the
government. The overriding consideration in a Petition for
condonation of delay is that, substantial justice is to be given
preference over technical considerations when pitted against each
other. As this Court is to mete out substantial justice and as held
in (supra), if the higher Courts while refusing to
Sheo Raj Singh
condone the delay fails to consider the legality and validity of an
Order of the lower Court, unholy gains would accrue to the
opposite parties, which would be a travesty of justice.
I.A. No.01 of 2023 in CRL.L.P/41/2023(Filing No.) 11
State of Sikkim vs. Pratiksha Rai and Another
(i) Thus, in light of the foregoing discussions and bearing
in mind that the Court is to dispense even handed justice, the
delay of fifty-six days is condoned.
8. I.A. No.01 of 2023 stands disposed of accordingly.
9. It is also imperative to direct the Learned Trial Courts
to ensure that the “block stamps” are affixed on every certified
copy made available to the parties, which would enable this Court
to peruse the date of application for copy of Judgment/Order and
when it was made available to the Applicant.
10. Copy of this Order be forwarded to all the Learned
Courts below for compliance of Paragraph 9 of this Order.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
27-11-2024 27-11-2024
Approved for reporting : Yes
sdl