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Judgment
Neerja K. Kalson, J.
The petitioner has invoked the revisional jurisdictional of this Court assailing the order dated 17.01.2018 passed by the learned Additional Sessions Judge, Panipat, whereby the application filed by him under section 5 of the Limitation Act seeking condonation of delay in filing an appeal against acquittal was dismissed, and consequently, the appeal was also dismissed as being barred by the limitation.
As per the case of the petitioner, the petitioner was the complainant in FIR No. 439 dated 28.10.2002 registered under Sections 323, 325, 452 and 506 IPC at Police Station Chandni Bagh, Panipat. Respondents No. 1 to 5 faced trial in the said case and were acquitted by the learned Judicial Magistrate 1st class, Panipat, vide judgment dated 13.01.2011. Aggrieved thereof, the petitioner initially preferred an appeal before the learned Sessions Court. The said appeal, however, came to be withdrawn on 21.03.2013 under the impression that an appeal against acquittal was required to be filed directly before this Court. The petitioner thereafter approached this Court, but the proceedings were returned with an endorsement that the remedy was not maintainable before the High Court. He then instituted a fresh appeal before the Sessions Court along with an application seeking condonation of delay. The learned Appellate Court, on consideration of the explanation furnished, declined to condone the delay and dismissed the appeal as time barred.
It is also pertinent to notice that after instituting the present revision petition in this court, the petitioner has failed to appear and prosecute the matter. In order to ensure that the matter is nevertheless adjudicated on its merits and the petitioner remains duly represented, this court appointed an Amicus Curiae to assist the Court on behalf of the petitioner. The learned Amicus Curiae has accordingly rendered assistance on the basis of the record available before this Court.
Learned Amicus Curiae submits that the delay was not intentional and had occurred on account of bona fide mistake regarding the appropriate forum before which the appeal against acquittal was maintainable. It is urged that the petitioner had been pursuing his remedy and therefore, a liberal view ought to have been taken while considering the application for condonation of delay.
Before proceeding further, it would be apposite to note the reasoning recorded by the Appellate Court while considering the application for condonation of delay. The relevant portion of the impugned order reads as under:-
“5.In the present case in hand, the judgment of acquittal was pronounced and an appeal was preferred. However, the same was withdrawn by appellant and now this second appeal has been instituted along with the present application for condoning the period of delay in filing the appeal. Though, it is a question of debate whether the second appeal itself would be maintainable or not. It is necessary to point out here that it is not the case that after withdrawn of the appeal, the appeal was instituted before the Hon’ble High Court and appeal was not found maintainable there and an appropriate direction has been obtained by applicant/appellant to the effect that appellant shall be at liberty either to get restored the appeal already withdrawn or shall be at liberty to institute a fresh appeal and the period as lapsed in course of preferring appeal before the Hon’ble High Court to be condoned. It is necessary to point out here that it has not been specifically mentioned on which date the appeal was preferred before the Hon’ble High Court and on which date the same was returned to the applicant/appellant. However, considering the submissions as advanced by learned counsel for applicant/appellant even if it be considered that the appeal was returned by Hon’ble High Court on 19.06.2013, even then, the present appeal has not been instituted within a period of limitation. There is no explanation for further delay in filing the appeal. It would be very unjust to allow the application by showing any kind of leniency in respect to unexplained delay and thereby to compel respondents to face proceeding of appeal once again. It cannot be overlooked that respondents were acquitted in year 2011 in respect to case registered against them long back in the year 2002. They have been acquitted after facing trial for almost nine years. Even respondents put their appearance in respect to the appeal instituted by applicant in the year 2011 which voluntarily withdrawn by applicant in year 2013. Now, this subsequent appeal again instituted in year 2013 with present application for condoning delay. Hence, in view of aforementioned reasons, this Court found application devoid merit, hence dismissed and consequent upon the same, the present appeal is also dismissed being time barred. Bail-bonds/surety-bonds furnished by respondents no.1 to 5 stand discharged. Record of the Trial Court be sent back with copy of this order. File be consigned to the record room, after due compliance.”
Having heard learned counsel for the parties, as well as the learned Amicus Curiae, and upon perusal of the impugned order, this court finds no ground warranting interference in the exercise of revisional jurisdiction. While the expression “sufficient cause” under Section 5 of the Limitation Act, 1963 is required to receive a pragmatic and justice-oriented construction, however such liberal approach does not disperse with the requirement that the applicant must satisfactorily explain the material period of delay and show bonafides as well as reasonable diligence in pursuing the remedy.
The Hon’ble Supreme Court in Basawaraj and Anr. vs. Special Land Acquisition Officer (2013) 14 SCC 8 while considering the scope of “sufficient cause” for condonation of delay and the manner in which judicial discretion is to be exercised, observed as under:
“9.Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive".
It would also be apposite to refer to paragraph 12 of the aforesaid judgment, wherein the Hon'ble Supreme Court assured as under:
'12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute."
At the same time, condonation of delay cannot be claimed as matter of right. The Hon'ble Supreme Court in the State of Odisha & Ors. v. Managing Committee of Namatara Girls High School 2026 INSC 148 has reiterated that Courts, while considering an application for condonation of delay, are required to examine whether the explanation furnished constitutes a genuine and satisfactory cause and whether the applicant has acted bona fide and with reasonable diligence.
Equally, where a litigant has pursued a remedy under bona fide impression that the same was maintainable before a particular forum, the applicant must demonstrate bona fides and reasonable diligence in pursuing the remedy available in law. A general plea of having proceeded under a mistaken understanding of law, without satisfactorily accounting for the entire period of delay, would not by itself justify exercise of discretion in favour of the applicant.
Tested on the touchstone of the aforesaid principle, the explanation furnished by the petitioner does not satisfactorily account for the entire period of delay. In the present case, though the petitioner had initially instituted an appeal against the judgment of acquittal, the same was voluntarily withdrawn on 21.03.2013. The learned Appellate Court has specifically noticed that no liberty was obtained either for restoration of the said appeal or for the institution of a fresh appeal in the event of the proceedings before the High Court being found non maintainable. It is necessary to point out that the petitioner is conspicuously silent with respect to on which date the appeal was preferred before the Hon'ble High Court and on which date the same was returned to the applicant/appellant. More importantly, even if the petitioner's explanation regarding the mistaken forum is accepted at the face value, the delay subsequent to return to the proceedings by this Court remained unexplained. The impugned order records that even if the proceedings are taken to have been returned by the High Court on 19.06.2013, the subsequent appeal was not instituted within the prescribed period and no satisfactory explanation was furnished for the intervening delay.
The aforesaid reasoning cannot be termed arbitrary or perverse. A litigant who seeks indulgence of the court on the ground that he had been bona fide pursuing a remedy before an incorrect forum is nevertheless required to demonstrate promptitude once the mistake comes to his knowledge. The protection available on account of a bona fide mistake cannot be extended indefinitely so as to cover a subsequent period of unexplained inaction.
The conduct of the petitioner even before this court is also relevant while considering the plea that he had been throughout been diligent in pursuing his remedies. Having himself invoked the jurisdiction of this Court, he has thereafter failed to appear and prosecute the petition, necessitating appointment of an Amicus Curiae. Although such subsequent conduct cannot, by itself, determine whether sufficient cause existed for the earlier delay, it does lend support to the conclusion that the petitioner has not shown the degree of diligence which would justify interference with the discretion exercised by the learned Appellate Court.
The learned Appellate Court has also noticed that respondents no.1 to 5 had been acquitted in the year 2011 in a criminal case arising out of an FIR registered in the year 2002 and had already undergone the rigors of criminal proceedings for a considerable period. The court below was therefore justified in taking into account the prejudice that would be caused by reopening the proceedings after a prolonged and unexplained delay.
The matter is also required to be viewed within the limited scope of revisional jurisdiction. This court while exercising such jurisdiction, would not substitute its own discretion merely because another view may be possible. Interference would be warranted only where the order under challenge suffers from patent illegality, perversity, jurisdictional error or results in manifest miscarriage of justice.
In view of the foregoing discussion, this court is of the considered opinion that no such infirmity is discernible in the present case.
Consequently, the present revision petition, being devoid of merit, is dismissed.
Pending application(s), if any, shall also stand disposed of.