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State of Bihar v/s Durga Pd. Saha

    Govt.Appeal 33 Of 1988

    Decided On, 21 March 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE RAJENDRA PRASAD & THE HONOURABLE MR. JUSTICE REKHA KUMARI

    For the Appearing Parties: Lala Kailash Bihari Prasad, Yogesh Chandra Verma, Balmiki Singh, Advocates.



Judgment Text

(1.) This Govt. appeal against acquittal of respondents, namely, Durga Pd. Saha, Lalit Chandra Shaha and Rajesh Kumar Saha, along with a petition under Section 5 of the Limitation Act (hereinafter referred to as 'the Act') with a prayer to condone the delay in filing this appeal has been filed by the State of Bihar.

(2.) It appears that respondent No. 1 Durga Pd. Saha was tried for offences under Sections 376, 302, and 201 I. P. C. and respondents 2 and 3, namely, Lalit Chandra Saha and Rajesh Kumar Saha, were tried for the offences under Section 201 I. P. C. only in Sessions Trial No. 296/82. On consideration and appreciation of the evidences on record, learned trial Court, i.e., Sri Kashi Nath Roy, 6th Additional Sessions Judge, Bhagalpur, finding that the prosecution miserably failed to prove and establish the charges against the aforesaid respondents found them not guilty and acquitted them for the above charges.

(3.) Leave for filing this Govt. appea

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l was granted vide order dated 16-8-1988 condoning delay in filing the same subject to the objections, if any, that may be taken by the respondents at the subsequent stage after they appear in appeal. Now, as the respondents have raised objections as to filing of this appeal after a delay of 183 days, i.e., six months and three days, we have heard Mr. Yogesh Chandra Verma learned Sr. Counsel for the respondents and Mr. Lala Kailash Bihari Prasad learned A. P. P. for the appellant-State of Bihar.

(4.) Mr. Yogesh Chandra Verma learned Sr. counsel for the respondents contended that this Govt. Appeal has been filed after a long delay of 183 days, i.e., six months and three days and the appellant State of Bihar has not been able to show sufficient or good cause so as to satisfy this Court that the appellant had such sufficient or good cause for not preferring this appeal within the period of limitation of 90 days prescribed in Entry 114 of Schedule of Limitation Act. The contention is that as the appellant-State of Bihar has not been able to show sufficient or good cause so as to satisfy this Court that the appellant had sufficient or good cause for not preferring this appeal within the period of limitation of 90 days prescribed under the Act, this Govt. Appeal is fit to be dismissed as barred by limitation.

(5.) As against this, Mr. Lala Kailash Bihari Prasad learned A. P. P. for the appellant-State of Bihar though not disputed delay of 183 days, i.e. six months and three days, in filing this Govt. appeal pointed out that the Commissioner, Bhagalpur Division sent proposal to Law Department on 23-11-1987 and thereafter Law Department forwarded the same to Additional Advocate General on 10-5-1988 for filing this Govt. appeal and the same was filed on 24-5-1988. The contention of learned A. P. P. is that the delay occurred because the file for obtaining permission of Government had to move from one office to another and not that because appellant State of Bihar was not vigilant in filing appeal in time. Learned A. P. P. also pointed out that the copy of the judgment was sent by the learned Sessions Judge, Bhagalpur to the District Magistrate on 24-9-1987, i.e., after one month of date of judgment of acquittal.

(6.) Having heard learned counsels for both sides we shall proceed to examine whether the appellant State of Bihar has been able to show sufficient or good cause so as to satisfy this Court that the appellant State of Bihar had sufficient or good cause for not preferring this appeal within the period of limitation of 90 days prescribed in Entry 114 of Schedule of the Act.

(7.) The plea of limitation ordinarily involves mixed question of fact and law and it is also settled principle of law that each case is to be decided on its own facts. Certainly, the facts are always the basis on which law may be applied. When we take into consideration the facts of the instant case we find no dispute that this govt. appeal appears to have been filed after 183 days, i.e. six months and three days. If on such facts the provisions of law as laid down under Section 3 of the Act are applied the result would be that this Govt. appeal since preferred after prescribed period of limitation by law shall have to be dismissed by this Court as Section 3 of the Act reads as follows :

"3. Bar of Limitation.- (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act,- (a) A suit is instituted,- (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off, or a counter claim, shall be treated as a separate suit and shall be deemed to have been - (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in Court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court."

(8.) On a plain reading and true construction of the words used by the Legislature it would appear that the Legislative intent expressed through Section 3 of the Act is that law itself casts a duty upon the Court to dismiss an appeal barred by time although limitation has not been set up as a defence and so if the law laid down under Section 3 of the Act is applied to facts of this case this Govt. appeal, undisputedly barred by time, is fit to be dismissed. Though the provisions contained in Section 3 of the Act provide that

"subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence". Section 5 of the Act further provides that "any appeal or an application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period".

As the Govt. appellant has also filed a petition under Section 5 of the Act with a prayer to admit this appeal after condoning delay we shall consider whether the appellant-State of Bihar has been able to show sufficient cause so as to condone delay in filing this appeal.

(9.) As per appellant-State of Bihar itself, this appeal is filed after delay of 183 days, i.e., six months and three days. Though the appellant-State of Bihar appears to have stated in the petition filed under Section 5 of the Act that the Commissioner, Bhagalpur Division, sent proposal for filing this Govt. appeal to Law Department on 23-11-1987 and thereafter Law Department sent the file to Additional Advocate General on 10-5-1988 and the appeal was filed on 24-5-1988, the only cause for not preferring this Govt. appeal within the period of limitation is said to be that the file was under movement. The above facts on record are indicative that the officials of appellant-State of Bihar at every stage were not at all vigilant while dealing with the matter and if such acts attributable to officials of the appellant-State of Bihar are accepted as sufficient cause it may amount to encourage them not to be vigilant. The facts further indicate that either the officials had no knowledge that law prescribed limit of time within which this Govt. appeal was to be filed or, perhaps, it was in the minds of the officials that law of limitation does not apply in cases of Govt. appeal. It is settled principle of law that laws aid the vigilant and not those who slumber. The acts of Govt. Officials in this case indicate that the govt. officials were never vigilant in dealing with file relating to proposal for filing this Govt. appeal. If such slow motion working of the Govt. officials of the State at every stage is accepted as sufficient cause for the delay in filing this appeal, then the delay would have to be condoned in almost every case and the period of limitation prescribed in filing of appeal in case of State Government shall become a misnomer and so we do not find it safe to accept such delay being result of negligent working of officials of the State Government as sufficient cause. The proof of sufficient cause is a condition precedent for exercise of discretionary jurisdiction vested in the Court and delay cannot be condoned as a matter of judicial generosity and as the appellant-State of Bihar has not been able to show sufficient or good cause in preferring this appeal after the period of limitation we are of the view that this is not a fit case in which delay in filing appeal be condoned.

(10.) Taking into consideration the facts on record and also applying law on such facts, we are of the view that the appellant State of Bihar has not been able to show sufficient cause for not preferring this Govt. appeal within the period of limitation and, as such, this Govt. appeal is barred by limitation of 183 days, i.e. six months and three days and we reject the petition filed under Section 5 of the Act for condoning delay in filing this Govt. appeal and as a result this Govt. appeal is also dismissed being barred by limitation.

(11.) Let a copy of this order be handed over to Mr. Lala Kailash Bihari Prasad learned A. P. P. appearing for the appellant-State of Bihar for needful. Appeal dismissed
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