STATE Vs. D N BHUYAN

JUDGEMENT

(1.) IT is sometimes more important to emphasise the obvious than to elucidate the obscure" lamented Justice Oliver Wendell Holmes. The answers to the questions posed in these cases are obvious but it has become necessary to elucidate the obvious answers. The primary question is the precise period of limitation for preferring an appeal from an order of acquittal in a case investigated by the Delhi Special Police Establishment for short "the Delhi Police", constituted under the Delhi Special Police Establishment Act, 1946. The obvious answer to this question is 90 days from the date of the order. However, we have been invited to give a reasoned decision for reaching the conclusion. The subsidiary question is whether the appellants -petitioners have made out a case for extension of the prescribed period of limitation under Section 5 of the Limitation Act, 1963.

(2.) THESE are applications under Section 5 of the Limitation Act, 1963 for extension of the prescribed period of limitation. The allegations against the accused are that he had defalcated a large amount of money while serving as the cashier of the Director General of Assam Rifles, Shillong. The charges framed against the accused were under Sections 409 and 477 -A of the I.P.C. and under Section 5 of the Prevention of Corruption Act. The case was investigated by "the Delhi Police" (CBI), who having completed the investigation submitted chargesheets in 3 cases which were registered as Special CBI Cases Nos.1 of 1975, 3 of 1975 and 4 of 1975. Special CBI Case No.1 of 1975 was tried separately from which stems Criminal Appeal No.4 of 1983 whereas Special CBI Cases Nos.3 of 1975 and 4 of 1975 were tried together and by a common judgment and order the learned Special Judge, Shillong, acquitted the accused. Two appeals have been preferred against the orders of acquittal passed on 12 -7 -1982. The appellants filed application for obtaining the certified copies of the judgment and order on 27 -7 -1982, deposited the requisite stamps and folios on the date notified (27 -7 -1982), the copies were made ready on 1 -10 -1982 and received on the same date. The appeals and the connected applications for leave to appeal have been filed on Monday, Dec.20, 1982, under Section 378 of the Cr.P.C., 'the Code' for short. The appellants also filed two applications under Section 5 of the Limitation Act, 1963 for condonation of the delay in filing the appeals. It has been stated in the petitions that on obtaining the copies of the judgment the records of the cases were sent to the Central Bureau of Investigation, New Delhi who had investigated the case, they decided to file the appeals from the orders of acquittal by their letter dated 9 -12 -1982 and forwarded the records of the case to the Government of Meghalaya requesting the State to file the appeals. The records of the case including the certified copies of the judgments were sent by air packet from Delhi to the CBI office at Shillong, which reached the office in the evening of Dec.10, 1982. As 11 -12 -1982 and 12 -12 -1982 were holidays, the records could be delivered by the CBI Shillong, to the Government of Meghalaya on 13 -12 -1982 and in the evening of the 13th, decisions were taken by the State Government to prefer the appeals who instructed the Public Prosecutor, Meghalaya to file the appeals to this High Court. Mr.A. Sarma, Public Prosecutor, Meghalaya, submits that his office is at the principal seat of the High Court at Gauhati so, the records had to be sent to Gauhati from Shillong. They were received by him on Dec.15, 1982. He has stated that he had to go through the records carefully, prepare the memorandum of appeals, get them typed which took about 3/4 days. The appeals were ready by the 19th of December, 1982 which was a Sunday. So he filed them on December 20, 1982. Mr. Sarma, learned Public Prosecutor submits that the last date for filing the appeals would have expired on 11 -12 -1982, that is, 90 days from the date of order of acquittal, but it took 67 days for obtaining the certified copies of the judgment and order. Therefore, according to Mr. Sarma, the last date for filing the appeals is 16th of December, 1982. There was a delay in filing the appeals by about 3/4 days. The said period was taken by him to prepare the memoranda of appeals after going through voluminous documents and evidence. There cannot be any second opinion that in the cases large number of documents were exhibited and number of witnesses were examined by the prosecution. Mr. Kataki, Learned counsel for the accused -petitioner does not dispute that there was no sufficient ground for condoning the delay of 3/4 days taken by learned Public Prosecutor in preparing the appeals and filing them. It has not been disputed that 67 days were taken for the delivery of certified copies of the impugned judgment and orders. However, Mr. Kataki contends that the period of limitation is 60 days from the date of order of acquittal, so even after giving allowance of the period for taking certified copies of the judgment, the last date for filing the appeals and/or application for leave to appeal expired on 16 -11 -1982. According to the learned counsel there was a delay of 35 days in presenting the appeals. Learned counsel submits that there is no explanation as what happened between 15 -11 -1982 to 6 -12 -1982. Mr. Sarma, learned Public Prosecutor submits that during that period the records were under examination by the C.B.I. New Delhi. It may be stated here that neither in the petition nor during the course of argument the opposite party ever questioned that the period taken by learned Public Prosecutor, Meghalaya, from 15th to 19th of December, 1982 in preparing the appeals and the connected applications was untrue, incorrect or that there could not be a sufficient cause for condoning the delay for the said period of 3/4 days. We are also of the opinion that the period which was taken for preparing the appeals and the connected applications was a reasonable period to prepare both the appeals which involved close scrutiny of the evidence, documentary as well as oral. The main contest is whether the period of limitation for filing such an appeal is 60 days or 90 days. If the period of limitation for preferring the appeals is 60 days, the appeals are out of time and the question of condonation of delay does not arise. But, if the period of limitation is 90 days, the appeals and the applications are within the period of limitation. Therefore the bone of contention is whether the period of limitation for preferring such appeals is 90 days or not. It is the common case of the parties that the criminal cases were not complaint cases but were Government report cases. Admittedly, the cases were investigated by "the Delhi Police" (CBI). In order to determine the question, let us scrutinise the provisions of Section 378 of 'the Code', which we extract here in below: - "378. Appeal in case of acquittal -(1) Save as otherwise provided in sub -section (2) and subject to the provisions of sub -sections (3) and (5), the State Government may in any case, direct the Public Prosecutor to present an appeal to High Court from an original or appellate order of acquittal passed by any court other than a High Court. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub -section (3), to the High Court from the order of acquittal. (3) No appeal under sub -section (1) or sub -section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon com -plaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal the, the complainant may present such an appeal to the High Court. (5) No application under sub -section (4) for the grant of Special Leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and, sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub -section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub -section (1) or under sub -section (2). (Emphasis added)

(3.) IT will be seen that the provisions of the Section are enabling in nature which confer the right of appeal. It also prescribes the persons or authorities competent to prefer the appeals and provides for the period of limitation for obtaining leave. Sub -section (1) of Section 378 of the Code empowers the State Government to prefer appeals from the order of acquittal "in any case", that is, in Government report cases as well as in complaint cases. However, we find two limitations - (I) the power is controlled, by sub -section (2) and (II) the power is conditioned upon the provision of sub -section (5) as well. We have no manner of doubt that the State Government is competent to prefer an appeal against acquittal "in any case". In the instant case the State of Meghalaya has preferred the appeals through their Public Prosecutor. The appeals have been preferred from the order of acquittal passed by "Court other than a High Court", sub -section (2) lays down that if an order of acquittal is passed in a case in which the offence has been investigated by "the Delhi Police" or by any other agency empowered, to make investigation into an offence under any Central Act other than 'the Code', the Central Government "may also" direct the Public Prosecutor to present the appeal, but the power is subject to the provisions of sub -section (3). i.e. an appeal can be entertained only with the leave of the High Court. It follows, therefore, that in a case investigated by "the Delhi Police," an appeal from an order of acquittal may be preferred by the State Government or by the Central Government, and, no appeal shall be entertained except with the leave of the High Court. These are the limitations. In so far as the period of limitation for preferring such appeals, no period of limitation has been laid down under 'the Code'. So we are to turn to Article 114 of Limitation Act, 1963 which provides the period of limitation as 90 days from the date of the order of acquittal. In the result we have no hesitation in concluding that the period of limitation for such an appeal is 90 days.