Judgment:
D.H. Waghela, J.
1. This application for condoning delay of 244 days in preferring the criminal revision application was contested for respondents Nos.2 to 4, who are the accused persons in Special Case No.25 of 1993 in which charge sheet of the case was ordered to be returned for production before the competent Court by the order which is sought to be challenged in the main revision application. Such order of returning the charge sheet is stated to have come to be passed after about nine years of pendency of the case and upon death of one of the accused persons charged with the offence under section 5 of the Prevention of Corruption Act, 1947.
2. The factual background of delay is stated to be that the impugned order dated 31.12.2001 was received by the public prosecutor on 18.1.2002 and was placed in the file of the public prosecutor on 22.1.2002. The public prosecutor advised the investigating officer to file new charge sheet and marked the file to the concerned clerk. The clerk concerned did not take any action on the noting of the public prosecutor even as a letter dated 21.1.2002 from the Central Excise, Surat-I was received and replied on 5.2.2002. The file remained unattended upto 10.7.2002 for a period of five months and, in the meanwhile, the period of limitation of 90 days had expired. Upon periodical scrutiny of the cases, it came to the notice of the investigating officer that no action was taken and hence the file was placed before the Superintendent of Police, C.B.I., Gandhinagar on 10.7.2002. It was then realised that the impugned order of the trial Court was required to be challenged and legal opinion therefore was sought from the senior public prosecutor. The senior public prosecutor gave his opinion on 22.7.2002 but, since certified copy of the order was not even applied for, it was obtained on 23.8.2002. The opinion of the learned counsel for C.B.I. was sought and, according to his opinion, revision application before this Court was preferred since the question involved was very important and was likely also to affect other cases. It is stated that some time was lost in sending copies of file to higher authorities for their opinion and the Joint Director of C.B.I., West Zone, Mumbai and the Director of Prosecution, New Delhi had to confirm the decision to file revision application. During the course of these dealings, the opinion to file revision had to pass through the office of the D.I.G., C.B.I., Jaipur who, in turn, directed the petitioner-Superintendent of Police to file application. Ultimately, the learned counsel appearing on behalf of the C.B.I. filed revision application on 29.11.2002. The procedure briefly narrated as above is stated to be normal time consuming process and sufficient cause for the delay. It is also stated that an enquiry is initiated against the clerk concerned with whom the file had remained unattended at the initial stage for an inordinately long period.
3. An affidavit-in-reply for the contesting respondents is filed to state that apparently learned special public prosecutor in charge of the case had not applied for certificate copy of the impugned order and advised the investigating officer to file a new charge sheet against the accused persons in the appropriate Court which clearly indicated that the higher authorities took a different view at a very late stage when the period of limitation had since long expired. It is also averred that the fact that the file remained unattended upto 10.7.2002, for a period of five months, clearly indicated gross negligence and inaction on the part of the petitioner which disentitled it to any discretionary relief. It is also pointed out that even after receipt of the certified copy of the impugned order on 23.8.2002, the petitioner has filed the revision application on 29.11.2002 after three months without any cogent, convincing or reasonable excuse. It is alleged on behalf of the respondents that the petitioner has suppressed relevant material and facts by keeping silence about important and relevant dates and, in absence of such data, condoning the delay would amount to condoning negligence. Thus, in short, sufficient cause to justify the delay was not made out according to the respondents.
4. Mr.M.R.Shah, learned counsel for the petitioner, relied upon the recent judgment of the Supreme Court in STATE OF BIHAR v. KAMESHWAR PRASAD SINGH [ JT 2000 (5) SC 389 ] in which, relying upon Collector, Land Acquisition, Anantnag v. Mst. Katiji [ JT 1987 (1) SC 537], observed that primary function of a Court is to adjudicate disputes between the parties and to advance substantial justice. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation given does not smack of mala fides or is not shown to have been put forth as a part of dilatory strategy, the Court must show utmost consideration to the suitor. It is also held in THE SPECIAL TEHSILDAR, LAND ACQUISITON, KERALA v. K.V.AYISUMMA [ JT 1996 (7) SC 204] that, though the Limitation Act made no distinction between the State and the citizen, adoption of strict standard of proof leads to grave miscarriage of public justice and would result in public mischief by skilful management of delay in the process of filing appeal. The approach of the Court should, therefore, be pragmatic and not pedantic. The correct approach can be adopted in condoning delay without insisting upon explanation of every day's delay. It is specifically observed therein that when delay is occasioned at the behest of the government, it would be very difficult to explain the day to day delay. The transaction of the business of the government is done leisurely by officers who would not have or would not evince any personal interest at different levels and no one takes personal responsibility in processing matters expeditiously. As a fact at several stages, they take their own time to reach a decision. In N. BALAKRISHNAN v. KRISHNAMURTHY [ AIR 1998 SC 3222], delay of 883 days was condoned after observing that in every case of delay there can be some lapse on the part of the litigant concerned but that alone would not be enough to turn down his plea and to shut the door against him. However, when Courts condone delay due to laches on the part of the applicant, the Court shall compensate the opposite party for his loss. It is repeatedly held by the Supreme Court that 'sufficient cause under section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice'. It is also held by this Court in STATE OF GUJARAT v. MOHANBHAI JIVABHAI AYAR [1998 (3) G.L.R. 2199 ] that in the context of present day prevalent lethargy in the government department, it is necessary to take rational and practical approach in the interest of substantial justice. In STATE OF U.P. v. SUNDER SINGH [ (2000) 2 SCC 174 ], the Supreme Court has, even in case of admitted lapse and long delay, condoned it in the interest of public justice.
5. On the other hand, learned counsel Mr.Keshwani with Mr.P.N.Bavishi, appearing for the respondents, vehemently argued that no special treatment can be accorded to the State in the matter of condonation of delay and merits of the case cannot be considered at this stage. Relying upon the judgment of the Supreme Court in AJIT SINGH THAKUR SINGH v. STATE OF GUJARAT [ AIR 1981 SC 733], it was submitted that sufficient cause for delay must be referable to the period prior to expiry of limitation and the events or circumstances arising after expiry of limitation cannot constitute sufficient cause. It was also submitted that, in the facts of the present case, the decision to challenge the impugned order was itself taken after the period of limitation and, therefore, certified copy of the order was not even applied for in time. On that basis it was submitted that this was a clear case of negligence and not inadvertence. He also pointed out that important dates of movement of the file among the authorities were not stated by the applicant and the delay was sought to be explained by vague averments in this age of fast communication facilities. He relied upon the judgment of the Supreme Court in STATE OF WEST BENGAL v. HOWRAH MUNICIPALITY [AIR 1972 SC 749] to submit that the expression 'sufficient cause' cannot be construed too liberally merely because the party in default is government although it should receive 'a liberal construction so as to advance substantial justice only when no negligence, inaction or want of bona fide was imputable to a party'. He relied upon the judgment in CALCUTTA MUNICIPAL CORPORATION v. PAWAN KUMAR SARAF [AIR 1999 SC 738] to submit that delay of 309 days was not condoned by the Supreme Court when sufficient cause was not shown. The judgment of this Court in NEW INDIA ASSURANCE CO. LTD. v. VIJAYBHAI LAXMANBHAI SOLANKI [ 1999 (2) G.L.R. 1510] was relied upon to show that delay of 182 days was not condoned in absence of satisfactory explanation for the delay and an enquiry was directed to be initiated against the officers concerned. STATE OF GUJARAT v. PRAJAPATI MANGAJI THAKORE [ 1997 (1) G.L.H. (U.J.) 27] was relied upon to submit that in that case the District Government Pleader who was required to explain the delay had not done so and, therefore, the delay was not condoned. Mr.Keshwani also relied upon the Full Bench decision of this Court in MUNICIPAL CORPORATION OF AHMEDABAD v. VOLTAS LTD. [ AIR 1996 GUJARAT 29] to submit that the plea that delay was caused by administrative reasons or administrative procedure cannot ipso facto establish sufficiency of cause for condoning delay. Precise factual reasons for the delay within the general ambit of the said phrase must be established and that too to the satisfaction of the Court. Sufficiency of reason for condoning delay must necessarily be established from the facts, both averred and established, and such facts would necessarily differ from case to case. It is also observed in the same judgment that whether delay is for a short period or a long period is of no consequence.
6. From the aforesaid discussion of facts and law on the subject, it is clear that the Central Bureau of Investigation, the petitioner, has shown inaction on the part of the clerk concerned and the investigating officer and the subsequent departmental procedure as the main cause of delay. The petitioner has, even before filing of this application, initiated an enquiry against the clerk concerned with whom the file had remained unattended for a long period. In such circumstances, although the delay is fairly long, lack of bona fides cannot be attributed to the applicant. It has to be accepted as a fact of life, as observed also by the Supreme Court, that officials in government departments at several levels take their own time in processing files and taking necessary decision although there may not be negligence or deliberate delay on their part. The underlying principle which has to be borne in mind in all such cases remains that Courts are required to do substantial justice in the matters coming before it and would spurn the attempts at denial of justice on technical grounds. Having regard to the perseverance with which the matter has been pursued by the petitioner in moving the papers from one office to another and, in absence of even an allegation of any mala fide intention or dilatory tactics and following the ratio of the recent Supreme Court judgments, the delay is required to be condoned in the interest of justice. Accordingly, the application is allowed. Rule is made absolute with no order as to costs.