State of Himachal Pradesh vs Shyama Nand

C.R. Thakur, J.—This is an appeal u/s 377 of the Code of Criminal Procedure for enhancement of the sentence imposed by the learned Chief Judicial Magistrate, Kalpa, on Shyama Nand Respondent u/s 9 of the Opium Act.

The Kalpa police received information that the accused, a resident of village Chhitkul, had gone to Uttar Pradesh for the purchase of contraband opium and would be coming there for the sale of the opium. A ''Nakabandi'' was organised by the police at Pul-Hurba on 14-7-1975. The accused returned on 16-7-1975 and was intercepted by the police. They found that he was carrying a Pithu on his back, in which he was carrying 5-1/2 kg opium wrapped in a wax-bag. 100 grams of opium was taken as a sample. The sample and the remaining opium were separately sealed. A Ruqa was sent to the S.H.O. Kalpa, on the basis of which an F.I.R. No. 41, dated 16-7-1975 u/s 9/1/78 of the Opium Act was registered against Shyama Nand, accused.

Challan was put in the court. The accused pleaded guilty to the charge and the learned Magistrate convicted and sentenced the accused to pay a fine of Rs. 1000/- and also to undergo simple imprisonment for seven days. The contention of the State is that this sentence is quite inadequate and that the same may be enhanced.

A preliminary objection has been raised to the effect that the appeal is barred by time by four days. The learned Advocate-General admits that the appeal is barred by time, but there was sufficient cause for not filing the same within the stipulated period and for that he had filed a Cr.M.P. 84/75, purporting to be one u/s 5 of the Indian Limitation Act, for the condonation of delay in filing this appeal. This application is accompanied by an affidavit of one M.D. Sharma, a junior scale stenographer of the office of the Advocate-General. It has been stated in the affidavit that ordinarily the limitation for filing the criminal appeal by Government is 90 days and it was under this impression that the appeal was filed considering in good faith that limitation of 90 days would be applicable. This question of limitation in an appeal for enhancement of sentence has arisen for the first time and the office remained under a bona fide mistake that the limitation of 90 days would be applicable. The learned Advocate-General has also referred me to the The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, to show that when there is a bona fide mistake then it is a sufficient cause for condonation of delay in filing the appeal. This authority says that when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the court to condone delay and admit an appeal. This discretion has been deliberately conferred on the court in order that the judicial power and discretion in that behalf should be exercised to advance substantial justice. Sufficient cause should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. There can be no dispute with the principle laid down that if there is no negligence or inaction or want of bona fide imputable to a party then the court has to give a liberal construction to the words "sufficient cause". The further authority relied upon is Muhammad Hassan-ud-din v. Saif Ali Shah and Ors. AIR 1924 Lah 41. According to this authority, the Lahore High Court made a rule on 17-10-1917 that in the case of second appeal the memorandum of appeal shall, in addition to the copies specified in Order 41, Rule 1, be accompanied by a copy of the judgment of the Court of the first instance, which was published in the Punjab Government Gazette of the 24th October, 1919 as Notification No. 4685-G and the appeals in question were filed on the 30th October, 1919, in other words, six days after the new rule was published in the Government Gazette. So, it was in these circumstances that it was held that there is sufficient cause within the meaning of Section 5 of the Limitation Act for admitting the appeal beyond time as there had not been sufficient time for the new rule to become well known by the 30th October, 1919. Another authority relied upon is Dwarka Das and Ors. v. The Crown AIR 1924 Lah 489, which says that where the order against which the application for revision is preferred is illegal, the delay which is excusable to a certain extent should not operate as a bar. In this case the Magistrate directed by his order dated 7th July, 1922 to pay a rateable fine of Rs. 250/- imposed on the Chabba Cotton Company Limited, Phularwan, whose Directors the accused were. In fact the order imposing fine on the Directors under the provisions of Section 134 of the Indian Companies Act was passed ex-parte without issuing a notice to them. The Sessions Judge recommended for quashing the order as being illegal. The High Court agreeing with that recommendation, although there was delay in filing the revision, allowed the revision petition after condoning that delay because the order was illegal.

Further reliance is also placed on Raghunath Das v. Raj Kumar ILR (All) 276 and Dhan Singh v. Basant Singh and Ors. ILR (All) 519. These were both civil revision petitions. In the former case there was the question of the amendment of the decree which was found to be at variance with the judgment and for which three years'' limitation was provided. An application for amendment was made after the statutory period and, therefore, it was held that the Limitation Act relates to the action of the party and not to the action of the court. If the court should be of opinion that by reason of any clerical or arithmetical error its decree does not carry the judgment into complete effect, it may take up the decree and amend it even after three years or more. So, this means that the court has got suo motu power to amend a decree provided it is of opinion that by reason of any clerical or arithmetical error its decree does not carry the judgment into complete effect, it may take up the decree and amend it even after three years or more. In the latter authority also there was the question of amendment of the decree because in the decree the area which was entered as 925 square yards was erroneously entered instead of 675 square yards and the decree-holder when he found the error applied to the Munsif for amendment of the decree. He allowed the same and amended the decree so as to allow to the decree-holder the area of only 675 square yards, which, according to the opposite party''s own contention was the extent of the land decreed. Against this order a revision was filed and it was contended that the decree being barred by limitation and finally pronounced by the court to be incapable of execution, the Munsif acted beyond jurisdiction in amending such a decree and a similar rule was laid down that the rule of limitation is confined to the litigants and is inapplicable to acts which the court may, or has to, perform suo motu. It was further observed that Section 206 of the CPC empowers a court of its own motion to amend its decree, and the mere fact that one of the parties has made an application asking the Court to exercise that power will not, in the opinion of the Court, render the action of the Court subject to the rule of limitation.

Now we have to see whether these authorities will render assistance to the learned Advocate-General in the present case. This case was decided on 21-7-1975. Section 377 of the Code of Criminal Procedure provides for an appeal by the State Government against the sentence on the ground of its inadequacy. This is a new provision in the Code of Criminal Procedure, 1973. There was no identical provision in the Code of Criminal Procedure, 1898. This Code of 1973 came into force with effect from 1st April, 1974. Article 115 of the Limitation Act, 1963 provides for limitation for appeals. It reads as: "Under the Code of Criminal Procedure, 1898 (a) from a sentence of death passed by a Court of Session or by a High Court in the exercise of its original criminal jurisdiction, 30 days from the date of the sentence and (b) from any other sentence or any order not being an order of acquittal--(i) to the High Court, 60 days from the date of the sentence or order. Therefore, it is Article 115(b)(i) which is relevant for the purposes of this appeal. Limitation is 60 days for an appeal from any other sentence or any order not being an order of acquittal. This Act had come into force with effect from 5th October, 1963. Therefore, it cannot be said that the learned Advocate-General was not aware of the provisions of law which provided for 60 days for an appeal against any order of sentence or any order not being an order of acquittal. No doubt that for the first time an appeal was provided for u/s 377 of the Code of 1973, but the provision laying down the period of 60 days for an appeal against any order not being an order of acquittal was there since 1963, of which the learned Advocate-General cannot be said to be unaware.

The affidavit has been filed of a junior scale stenographer who is not supposed to deal with cases of this nature. It is the Advocate-General himself who is entrusted with the duty to file appeals and see that the same are filed within the limitation. It is he who is supposed to know the law being the highest legal advisor to the State and the prosecutor on behalf of the State. Learned Advocate-General after the conclusion of the case filed his affidavit at 3.15 P.M. The opposite party did not get any opportunity to controvert the same. It was, therefore, highly unfair on the part of the Advocate-General to file this affidavit at a stage when the case had already been reserved for orders.

The learned Advocate-General had pleaded a bona fide mistake on the ground that it was for the first time that an appeal for enhancement had been filed. But this does not appear to be correct because heretofore also several appeals had been filed by the Government on the ground of inadequacy of sentences passed by the trial courts and were disposed of. Therefore, this does not appear to be a bona fide mistake rather it is a case of negligence and inaction on the part of the Respondent. He did not care to know the law even though the law of limitation prescribing the period of 60 days for appeal against any sentence or any order not being an order of acquittal was there since 1963. Although this new provision for filing an appeal against inadequacy of sentence was inserted under the Code of 1973 yet the period of limitation was there. Therefore, it cannot be said to be a bonafide mistake at all. The authority, State of West Bengal (supra) does not, therefore, assist the learned Advocate-General because there is no bonafide mistake so as to construe the term ''sufficient cause'' liberally and to advance the cause of justice when the Respondent had been negligent in its duties to prosecute the case at the earliest with due care and caution. Similarly, the authorities Muhammad Hassan-ud-din and Dwarka Das and others (supra) also do not assist the learned Advocate-General because the facts are quite distinguishable. In so far as the cases Raghunath Das and Dhan Singh (supra) are concerned, they do say that the Court is capable of acting suo moto in exercise of revisional powers when it is of opinion that there is a clerical or arithmetical error and effect cannot be given to the decree pronounced by the Court. But, in the instant case the question of exercise of suo motu powers does not arise because there does not appear to be any illegality except that the Magistrate had exercised the discretion in favour of the Respondent by awarding a lesser sentence and for which he had already given sufficient and cogent reasons, and I think these words ''sufficient cause'' in view of the inaction and negligence on the part of the Appellant, when a legal right has already accrued to the Respondent by lapse of time, should not be construed liberally, and the sentence awarded should not be light heartedly disturbed by enhancing the same. Further, from the authority, State of West Bengal (supra) it is also manifest that the expression ''sufficient cause'' cannot be construed too liberally merely because the party in default is the Government. It has further been observed in this authority that whether it is a Government or a private party the provisions of law applicable are the same unless the statute itself makes any distinction. On these grounds the learned Advocate-General cannot contend that there was sufficient cause merely because it was a first appeal of its kind by the State.

According to Dr. Srinibas Sunder Das Vs. Land Acquisition Collector and Others, if the Petitioner is misled by some earlier decisions and failed to notice provision in Section 18(3) of the Land Acquisition Act it could not be treated as sufficient for condoning delay. Therefore, in these circumstances, the submission of the learned Advocate-General that this was a first appeal of its kind for enhancement of the sentence on the ground of inadequacy and that he was not aware of the provisions of law with regard to limitation cannot be said to be a sufficient cause, in view of the peculiar circumstances of the case.

Therefore, the preliminary objection of the Respondent is sustainable and I accordingly accept the same and dismiss the appeal as being barred by time.