{"id":72454,"date":"1964-04-15T00:00:00","date_gmt":"1964-04-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-col-sujan-singh-and-ors-on-15-april-1964"},"modified":"2018-04-25T01:27:32","modified_gmt":"2018-04-24T19:57:32","slug":"state-of-u-p-vs-col-sujan-singh-and-ors-on-15-april-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-col-sujan-singh-and-ors-on-15-april-1964","title":{"rendered":"State Of U.P vs Col. Sujan Singh And Ors on 15 April, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P vs Col. Sujan Singh And Ors on 15 April, 1964<\/div>\n
Equivalent citations: 1964 AIR 1897, \t\t 1964 SCR (7) 734<\/div>\n
Author: K Subbarao<\/div>\n
Bench: Subbarao, K.<\/div>\n
           PETITIONER:\nSTATE OF U.P.\n\n\tVs.\n\nRESPONDENT:\nCOL.  SUJAN SINGH AND ORS.\n\nDATE OF JUDGMENT:\n15\/04\/1964\n\nBENCH:\nSUBBARAO, K.\nBENCH:\nSUBBARAO, K.\nGUPTA, K.C. DAS\nDAYAL, RAGHUBAR\n\nCITATION:\n 1964 AIR 1897\t\t  1964 SCR  (7) 734\n CITATOR INFO :\n E\t    1968 SC 733\t (7)\n\n\nACT:\nCriminal  Trail-sanction  by  Central  Government-Proceeding\npending\t before special Judge-Accused asking for  production\nof  document from the Union Government Privilege claimed  by\nGovernment-Special   Judge  and\t High  Court   in   revision\nrejecting  the claim of privilege-Order if a  \"final  order\"\n-Petition for grant of\tcertificate-Maintainability-Petition\nfor special leave barred by limitation-Petition for excusing\ndelay\ton  wrong  legal  advice-If  a\tsufficient   ground-\nConstitution  of India, Art. 134(1)(c)-Supreme Court  Rules,\n1959, 0.21, r. 1(1).\n\n\n\nHEADNOTE:\nThe respondents were prosecuted in the court of the  special\nJudge\tafter\tobtaining  the\tsanction  of   the   Central\nGovernment,   for  an  offence\tunder  s.  6(1)(a)  of\t the\nPrevention of Corruption Act, They put an objection that the\nsanctioning  authority did not apply his mind properly\twhen\nsanction  was  granted.\t One of the  respondents  asked\t the\nCourt to summon the concerned record of the Home  Department\nfor, it would substantiate his assertion that the  concerned\nofficer did not apply his mind earlier in according sanction\nfor  his  prosecution.\t The  Secretary\t Ministry  of\tHome\nAffairs, claimed privilege.  The Special Judge and the\tHigh\nCourt  in  revision rejected the claim of privilege  of\t the\nUnion  Government.  The appellant than filed a\tpetition  in\nthe  High Court for grant of a certificate.  The High  Court\nheld  that  the order sought to be appealed against  was  an\ninterlocutory  one  and,  therefore, the  petition  was\t not\nmaintainable  under  Art.  134(1)(c)  of  the  Constitution.\nAgainst\t the  order  of\t the  High  Court  in  revision\t the\nappellant  filed  a  petition for special  leave  to  appeal\nstating that he applied for a certificate to the High  Court\nbut  it\t was refused.  The appellant did not  bring  to\t the\nnotice\tof  this Court that the petition for  special  leave\n\",as  out  of time.  The Registry could not  point  out\t the\ndefect as in the petition it was stated that the application\nunder Art. 134(1)(c) was dismissed by the High Court without\nindicating on what ground it did and this Court assumed that\nit  was\t in time and granted special leave.   However  after\nobtaining the permission of this Court the appellant filed a\npetition  for excusing the delay on the ground that the\t Law\nOfficer,  who  was  at the relevant time in  charge  of\t the\nmatter\tin the High Court, advised the Government  that\t the\norder under appeal was a final order and that an application\nshould be filed under Art. 134(1)(c) of the Constitution and\nthat the appellant acted bonafide.  The appellant  contended\n(1)  that  the\torder  of the High  Court  in  the  criminal\nrevision  was a final order within the meaning of  Art.\t 134\n(1)(c) of the Constitution and (2) that the rule 1(1) of  0.\nXXI of the Supreme Court Rules does not say in express terms\nthat  the order of refusal to give a certificate must be  on\nan  application which is maintainable and, therefore, if  in\nfact  the High Court refused to give a certificate,  whether\non  merit,, or on the ground that it was  not  maintainable,\nthe party could take advantage of the said rule.\nHeld  (per  K. Subba Rao and K. C. Das Gupta, JJ):  (i)\t The\norder under appeal was not a final order within the, meaning\nof  Art. 134(1) of the Constitution.  It did not purport  to\ndecide\n735\nthe  rights of the parties, namely, the State U.P.  and\t the\naccused.   Assuming that it decided some right of the  Union\nGovernment, the Union Government was neither a party to\t the\ncriminal  -proceedings nor was it a party either before\t the\nHigh Court or before this Court.  The indirect effect of the\norder of a third party to the proceedings, who did not\tseek\nto  question  that order, did not deprive the order  of\t its\ninterlocutory character.\nSeth  Premchand\t Satramdas v. State of Bihar<\/a>  [1950]  S.C.R.\n799, relied on.\n(ii) Rule  1(1) of 0. XXI presupposes that  the\t application\nfor the certificate is maintainable and the Court refuses to\ngive  it on the ground that the condition laid down in\tArt.\n134(1) of the Constitution have not been complied with.\t  On\na reasonable Interpretation of the rule, it could only\tmean\nthat  the  refusal  ,of\t the  certificate  must\t be  in\t  an\napplication maintainable under the said Article.\n(iii)The  order ex facie was an interlocutory order  and  so\nfar  as\t the Government of U.P. was concerned it  could\t not\npossibly be held that any of its rights had been affected by\nthat  order.  In the circumstances, it must be held  that  a\nwrong  legal advice is not a sufficient ground for  excusing\nthe  delay,  and the appeal therefore must be  dismissed  as\nbarred by limitation.\nPer  Raghubar Dayal, J. (dissenting),: The appellant  should\nbe given the advantage of the opinion of its legal  advisers\nas  the\t error, if any. could not be said to be\t of  such  a\ncharacter  which  a legal adviser could\t not  have  possibly\ngiven.\nThe  rule does not expressly state that limitation would  be\ncounted\t from  the date of refusal of the  certificate\tonly\nwhen  an application for a certificate under Art. 134  would\nbe maintainable.  It is true that an application under\tArt.\n134  is\t contemplated  to  be  an  application\tagainst\t the\njudgment,  final order or sentence in a criminal  proceeding\nand  that  refusal  of a certificate  under  Art.  134,\t for\npurposes of rule 1(1) of 0. XXI, refers to the refusal of an\napplication  for  certificate against  the  judgment,  final\norder  or sentence in a criminal proceeding.  But this\tdoes\nnot necessarily mean that the rule will not be applicable in\ncases of refusal of a certificate when one applied for it on\nthe  ground  that the order sought to  be  appealed  against\namounted  to a judgment, final order or sentence  while\t the\nHigh  Court  came to a different opnion, The rule  does\t not\nspecifically  state  that  the date of the  refusal  of\t the\ncertificate  would  be\ttaken to be the\t starting  point  of\nlimitation  only when the High Court refuses certificate  on\nthe  ground  that it was not a fit case for  appeal  to\t the\nSupreme\t Court.\t  If it were so, the rule  would  have\tbeen\nlimited to those cases,.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 71  of
\n1963.\tAppeal by special leave from the judgment and  order
\ndated November 23, 1962 of the Allahabad High Court (Lucknow
\nBench at Lucknow) in Criminal Revision No. 251 of 1962.
\nS T. Desai, O. P. Rana, Atiqur Rahman and C. P. Lal, for the
\nappellant.\n<\/p>\n
C.   B. Agarwala, Ravinder Narain, O. C. Mathur and J. B.
\nDadachanji, for respondents nos. 1 and 2.\n<\/p>\n
April  15, 1964.  The Judgment of SUBBA RAO and DA,’;  GUPTA
\nJJ.  was  delivered  by\t SUBBA\tRAO  J.\t RAGHUBAR  DAYAL  J.
\ndelivered a dissenting Opinion.\n<\/p>\n
736<\/span><\/p>\n
SUBBA  RAO,  J.-This  appeal by\t special  leave\t raises\t the
\nquestion of the privilege raised by the Government of  India
\nin respect of certain documents called for from its Home De-
\npartment  in a criminal proceeding pending the court of\t the
\nSpecial Judge, Anti-Corruption (East), U.P., Lucknow.
\nThe  respondents  were prosecuted in the said  Court,  after
\nobtaining  the sanction of the Central Government  under  s.
\n197 of the Code of Criminal Procedure, for an offence  under
\ns. 6(1)(a) of the Prevention of Corruption Act, 1947 (Act 11
\nof  1947).  An objection was taken before the said court  on
\nbehalf of the respondents that the sanctioning authority did
\nnot   apply  his  mind\tproperly  when\tsanction   for\t the
\nprosecution  was  granted.  It was stated on behalf  of\t the
\nrespondents  that  on a representation made by\tone  of\t the
\naccused, Col.  Sujan Singh, for reconsideration of the order
\nof  his\t prosecution,  the  Deputy  Secretary  in  the\tHome
\nDepartment  reconsidered the matter and made notings on\t his
\napplication to the effect that the sanction accorded earlier
\nfor  his  prosecution was given on  insufficient  data.\t  He
\nfiled a petition before the Special Judge to summon the con-
\ncerned record of the Home Department on the ground that\t the
\nsaid  record would substantiate his assertion that the\tcon-
\ncerned officer did not apply his mind earlier in  according,
\nsanction  for his prosecution.\tThe Secretary,\tMinistry  of
\nHome  Affairs,\tclaimed\t privilege on the  ground  that\t the
\nproduction of the record containing the said notings of\t the
\nDeputy Secretary would not be in the interests of the State.
\nThe  Special Judge in the first instance and the High  Court
\nin  revision re-jected the claim of privilege raised by\t the
\nUnion  Govern-ment.  The  State of U.P.\t has  preferred\t the
\npresent\t appeal\t by special leave against the order  of\t the
\nHigh Court.\n<\/p>\n
The respondents filed criminal petition No. 149 of 1964\t for
\ncondonation of delay in filing appearance and the  statement
\nof case.  The facts relevant to this application are briefly
\nas  follows.   Respondents  1  and  2  received\t the  notice
\ngranting  special leave by this Court on January  16,  1964.
\nAfter  the receipt of the notice they contacted their  local
\nadvocate at Lucknow and, on his advice, the 1st\t respondent,
\nalong with his local advocate, came to Delhi on January\t 28,
\n1964,  and made necessary arrangements with Messrs.   J.  B.
\nDadachanji   &\tCo.,  Advocates.   On  January\t 16,   1964,
\nrespondents  1 and 2 received a notice from the\t High  Court
\nintimating  them  that\tthe records of\tthe  case  had\tbeen
\ndespatched to the Supreme Court.  On February 11, 1964, they
\nfiled  their  appearance  and on February  18,\t1964,  their
\nstatement  of  case.  If January 16, 1964, was the  date  of
\nservice\t on  them, there would not be any  delay  in  making
\ntheir appearance or filing their statement of case.  But the
\nnotice of the dispatch of the records
\nwas served on the learned counsel for respondents 1 and 2 on
\nNovember 4, 1963.  Under Ch.  V, r. 4(1)(c), read with r. 2,
\nof the Rules of the High Court, Allahabad, where a party  is
\nrepresented by an advocate, a service of notice of  dispatch
\nof  record  on\tsuch advocate is  deemed  to  be  sufficient
\nservice.    As\t the  present  appeal  arises  out   of\t  an
\ninterlocutory  order  it  may  be  said\t that  the  advocate
\nrepresenting  the  respondents\tin  the\t High  Court   still
\ncontinues  to represent them.  We assume for the purpose  of
\nthis  case  that the rule is valid and the notice  was\tduly
\nserved\ton  the advocate.  If that be  so,  the\t respondents
\nshould\t have  filed  their  appearance\t and  lodged   their
\nstatement  of case within a month from the said\t date.\t But
\nthey  filed their appearance on February 11, 1964, which  is
\nclearly\t beyond time.  It will be seen from the\t said  facts
\nthat  the respondents had filed their appearance within\t one
\nmonth from the date of service of notice on them, but beyond
\ntime from the date the notice was served on their  advocate.
\nThe said delay is not in the presentation of any appeal\t but
\nonly  in following the procedural steps for making the\tcase
\nready for disposal.  We are satisfied by perusing the record
\nthat the delay was not due to negligence on the part of\t the
\nrespondents.   It is not suggested that the appellant is  in
\nany  way prejudiced by this delay.  In the circumstances  we
\nthink  that this is a fit case for excusing the\t delay.\t  We
\nexcuse the delay in filing respondents’ appearance and\talso
\nin lodging the statement of case.\n<\/p>\n
Whether the daily of the respondents in entering  appearance
\nis excused or not. we are at the outset confronted with\t the
\nsituation that this Court gave special leave when the appeal
\nwas  prima facie barred by limitation without the  appellant
\nfiling\tan application for excusing the delay and the  Court
\nexcusing  the  same.  A few facts would\t make  the  position
\nclear.\t The  Judgment\tof the High Court  in  the  criminal
\nrevision  is dated November 23, 1962.  A certified  copy  of
\nthe  Judgment was delivered to the appellant on December  5,
\n1962.  On December 19, 1962, the appellant filed a  petition
\nin  the\t High  Court  of  Judicature  at  Allahabad  for   a
\ncertificate  that the case was a fit one, for appeal to\t the
\nSupreme\t Court.\t On February 18, 1963, the High\t Court\theld
\nthat  the  order  sought  to  be  appealed  against  was  an
\ninterlocutory  one  and,  therefore, the  petition  was\t not
\nmaintainable  under Art. 134 (1)(c) of the  Constitution  of
\nIndia.\tOn April 16, 1963 the appellant filed a petition  in
\nthis Court for special leave to appeal against the order  of
\nthe  High  Court in the criminal revision.  In para.  19  of
\nthat  petition it was stated that the appellant\t applied  to
\nthe High Court for a certificate for leave to appeal to\t the
\nSupreme Court but the High Court by order dated February 18,
\n1963,  refused\tto grant the certificate applied  for.\t The
\nappeal
\nL\/P(D)ISCI-24
\n738<\/span>
\nwould be in time if that application was maintainable in the
\nHigh Court, but would be out of time if that application was
\nnot  maintainable  there, for in the latter event  the\ttime
\nwould  have expired on March 5, 1963, and the  appeal  would
\nhave been out of time by 42 days.\n<\/p>\n
Learned\t counsel  for the appellant  contends  that  special
\nleave was -ranted on May 10, 1963, and that, as the  respon-
\ndents  have  not taken objection on the ground that  it\t was
\nbarred by limitation till they filed their petition in\tthis
\nCourt  on  February 26, 1964, we shall not  permit  them  to
\nraise  this  plea  at  this very late  stage.\tWe  are\t not
\nimpressed  by this argument.  This is not a case  where\t the
\nSupreme\t Court excused the delay in filing the petition\t for
\nspecial leave and the respondents with the knowledge of that
\nfact permitted the appellant to incur heavy expenditure\t and
\nafter  a  long\tdelay raised the objection at  the  time  of
\nhearing\t of the appeal that the delay should not  have\tbeen
\nexcused.   But\tthis is a case where the appellant  did\t not
\nbring  to  the\tnotice of the Court that  the  petition\t for
\nspecial leave was out of time.\tThe Registry could not point
\nout  the  defect as in the petition it was stated  that\t the
\napplication  under  Art. 134(1)(c) of  the  Constitution  of
\nIndia was dismissed by the High Court without indicating  on
\nwhat ground it did and this Court assumed that the  petition
\nfor special leave was in time and gave special leave.  Order
\nXXI, r. 2, of the Supreme Court Rules reads:\n<\/p>\n
\t      “Where  the  period of limitation\t is  claimed
\n\t      from the\tdate of refusal of a certificate, it
\n\t      shall  not  be  necessary to  file  the  order
\n\t      refusing\ta certificate, but the petition\t for
\n\t      special  leave  shall  be\t accompanied  by  an
\n\t      affidavit\t stating  the date of  the  judgment
\n\t      sought to be appealed from, the date on  which
\n\t      the application for a certificate was made  to
\n\t      the High Court, the date of the order refusing
\n\t      the  certificate and the ground or grounds  on
\n\t      which  the  certificate  was  refused  and  in
\n\t      particular  whether  the\tapplication  for   a
\n\t      certificate  was\tdismissed as  being  out  of
\n\t      time.”\n<\/p><\/blockquote>\n
Under  the said rule it is incumbent upon the petitioner  to
\nstate in the affidavit filed in support of the petition\t the
\ndate of the order of the High Court refusing the certificate
\nand  the  ground  or grounds on which  the  certificate\t was
\nrefused.  If the appellant had complied with this rule,\t the
\nRegistry  of  this  Court would have noticed  the  delay  in
\nfiling\tthe special leave petition and brought that  to\t the
\nnotice\tof  the Court.\tIn the circumstances there  are\t two
\ncourses\t open  to us: one is to dismiss the  appeal  on\t the
\nground that it was barred by limitation, and the other is to
\npermit the appellant to file
\n739<\/span>
\na petition at this very late stage for excusing the delay in
\nfiling the special leave petition and consider that petition
\non  merits.  Ordinarily no indulgence should be given  to  a
\nparty  when the said party with open eyes filed\t a  petition
\nfor special leave without disclosing a material circumstance
\nin  the affidavit on the basis of a wrong view of  law\tthat
\nthe  appeal  was  in time.  With  some\thesitation  we\tgave
\nliberty to the appellant to file a petition for excusing the
\ndelay and they have done so.\n<\/p>\n
We shall now consider the petition for excusing the delay on
\nmerits,\t as this Court would have done if  that\t application
\nhad been filed along with the special leave petition.
\nTwo  reasons are given in the application for  excusing\t the
\ndelay, namely, (1) the Law Officer, who was at the  relevant
\ntime in charge of the matter in the High Court, advised\t the
\nGovernment that the order under appeal was a final order and
\nthat an application should be filed under Art. 134(1)(c)  of
\nthe  Constitution  in the first instance so that  the  other
\nside  might not contend that the appellant did not  approach
\nthe  High Court for a certificate, and that the said  advice
\nwas accepted by the Government; and (2) the appellant  acted
\nbona fide, as it believed on legal advice that the period of
\nlimitation  would be counted from February 18,\t1963,  i.e.,
\nthe  date  of the order of the High Court refusing  to\tgive
\ncertificate and that the order was also filed along with the
\npetition  in  this Court.  The respondents filed  a  counter
\naffidavit  denying  that  the order was a  final  order\t and
\nstating\t that there was not sufficient reason  for  excusing
\nthe delay.\n<\/p>\n
The  learned  counsel for the appellant contended  that\t the
\norder  of  the High Court dated November 23,  1962,  in\t the
\ncriminal  revision was a final order within the\t meaning  of
\nArt.  134(1) of the Constitution.  The material part of\t the
\nsaid article reads:\n<\/p>\n
\t      “An appeal shall lie to the Supreme Court from
\n\t      any  judgment,  final order or sentence  in  a
\n\t      criminal\tproceeding  of a High Court  in\t the
\n\t      territory of India…………………\n<\/p><\/blockquote>\n
We find it difficult to hold that the order under appeal  is
\na  final order within the meaning of the said  article.\t  In
\nSeth  Premchand\t Satramdas v. The State of Bihar<\/a>(1)  it\t was
\nheld  that  an order of the Patna High Court  dismissing  an
\napplication under s. 21(3) of the Bihar Sales Tax Act, 1944,
\nto  direct the Board of Revenue, Bihar, to state a case\t and
\nto refer it to the
\n[1950] S.C.R. 799,, 804.\n<\/p>\n
L\/P(D)ISCI-24(a)
\n740<\/span>
\nHigh  Court was not a “final order”.  This  Court,  speaking
\nthrough\t Fazl Ali, J., defined the expression ‘final  order”
\nthus:\n<\/p>\n
\t      “It  seems  to  us  that\tthe  order  appealed
\n\t      against in this case. cannot be regarded as  a
\n\t      final  order, because it does not of  its\t own
\n\t      force  bind  or  affect  the  rights  of\t the
\n\t      parties”.\n<\/p><\/blockquote>\n
Though\tthis definition is given in a different context,  it
\nwill  equally  apply to that expression in Art. 134  of\t the
\nConstitution.\tCan  it be said that the  Special  Judge  in
\nallowing  the  petition of the respondents to call  for\t the
\nproduction  of\ta document from the Union  Government  is  a
\nfinal  order  in  the criminal\tproceeding’?   The  criminal
\nproceedings  were  taken  against  the\trespondents  for  an
\noffence\t under\ts. 6(1)(a) of the Prevention  of  Corruption
\nAct, 1947.  The proceedings are now pending in the court  of
\nthe  Special Judge.  In the course of those proceedings\t the
\nrespondents  filed  an application for the production  of  a
\ndocument by the Union Government and that was allowed by the
\ncourt.\t The  said  order is  only  an\tinterlocutory  order
\npending the proceedings.  It does not purport to decide\t the
\nrights\tof  the parties, namely, the State of U.P.  and\t the
\naccused.   It enables the accused to have the said  document
\nduly proved and exhibited in the case.\tIt relates only to a
\nprocedural  step  for  adducing evidence.   The\t High  Court
\nconfirmed  that order in revision.  But the learned  counsel
\ncontents  that it negatives the claim of privilege  made  by
\nthe Union Government and, therefore, it decides against\t the
\nright of the Union Government to withhold the production  of
\nthe document.  Assuming that the order decides some right of
\nthe  Union  Government,\t on  which we  do  not\texpress\t any
\nopinion, the Union Government is neither a party to the cri-
\nminal  proceedings nor is it a party either before the\tHigh
\nCourt or before us.  The indirect effect of that order on  a
\nthird  party  to  the  proceedings, who\t does  not  seek  to
\nquestion  that\torder,\tdoes not deprive the  order  of\t its
\ninterlocutory character.  We, therefore, bold that the order
\nmade  by  the  High Court is not a final  order\t within\t the
\nmeaning of Art. 134(1) of the Constitution.
\nThat  apart  the order of the High Court  holding  that\t the
\norder  sought  to  be appealed from was not  a\tfinal  order
\nwithin\tthe meaning of Art. 134(1) of the  Constitution\t has
\nbecome\tfinal.\t The  appellant has  not  filed\t any  appeal
\nagainst\t that  order.  It cannot ignore that order  for\t the
\npurpose\t of special leave and contend that  the\t application
\nbefore the High Court was maintainable and the order made by
\nthe  High Court must be deemed to have been made on  merits,
\nthough\tin  express terms it rejected the petition  for\t the
\nreason\tthat  it was not maintainable.\tIn either  view\t the
\nperiod\tof limitation for filing the special leave  petition
\ncould not be computed from
\n741<\/span>
\nthe  date of the order of the High Court refusing to give  a
\ncertificate  to\t appeal to the Supreme Court.\tIt  is\tthen
\ncontended  that the rule does not say in express terms\tthat
\nthe  said order of refusal to give a certificate must be  on
\nan  application which is maintainable and, therefore, if  in
\nfact  the High Court refused to give a certificate,  whether
\non merits or on the -round that it was not maintainable, the
\nparty can take advantage of the said rule.  We cannot accede
\nto this argument.  The rule presupposes that the application
\nfor the certificate is maintainable, and the court refuse to
\ngive it on the -round that the conditions laid down in\tArt.
\n134(1) of the Constitution have not been complied with.\t  If
\nthe construction put forth by the appellant be accepted,  it
\nwill give room for fraud and ,evasion of the rule.  A  party
\nwhose appeal has become barred can file a petition with\t the
\nknowledge  that\t it  is not maintainable, get  an  order  of
\ndismissal and then seek to take advantage of the  additional
\nperiod\tof  limitation\tprovided by  the  rule.\t  The  rule,
\ntherefore,   must  be  interpreted  reasonably\tand  if\t  so
\ninterpreted.  it  could only mean that the  refusal  of\t the
\n,certificate  must be in an application\t maintainable  under
\nthe said Article.\n<\/p>\n
Now  we\t shall\tproceed\t to  consider  the  application\t for
\nexcusing  delay\t on its merits.\t The reason  for  the  delay
\ngiven  in the affidavit is that the Law Officer was  of\t the
\nopinion\t  that\tthe  application  for  a   certificate\t was
\nmaintainable  under Art. 134(1) of the Constitution.  We  do
\nnot  see  any justification for this opinion.  There  is  no
\nconflict  of  judicial opinion on this question.   The\tonly
\nquestion  that\twas before the Law Officer was\twhether\t the
\norder  sought  to be appealed from was a final\torder.\t The
\norder ex facie was an interlocutory order and so far as\t the
\nGovernment  of U.P. was concerned it could not\tpossibly  be
\nheld that any of its rights bad been affected by that order.
\nIn  the\t circumstances\twe cannot hold that  a\twrong  legal
\nadvice is a sufficient ground for excusing the delay.\tWhat
\nis  more,  on  February\t 18,  1963,  the  High\tCourt  in  a
\nconsidered  order held that the order sought to be  appealed
\nfrom  was not a final order and, therefore,  an\t application
\nunder Art. 134(1) of the Constitution was not  maintainable.
\nThe time for preferring an appeal from the main order of the
\nHigh  Court would expire only on March 5. 1963, that  is  to
\nsay,  the appellant had 15 days time more for  taking  steps
\nfor  preferring the appeal.  Even so no steps were taken  to
\nfile the appeal and instead an appeal was filed on the basis
\nof the original opinion of the Law officer that the time can
\nbe computed from the date of the order refusing to issue the
\ncertificate.  From the information supplied  by the  counsel
\nfor the appellant it appears that  the Government decided to
\nfile the appeal only on March 8,   1963,  i.e.,\t after\t the
\ntime for filing the appeal bad
\n742<\/span>
\nexpired.   After further correspondence between the  Govern-
\nment of U.P. and the counsel representing it in the Supreme,
\nCourt  the  special leave petition was filed only  on  April
\n16,. 1963, completely ignoring the reasons given by the High
\nCourt  in  dismissing  the application\tfor  certificate  of
\nfitness.    On\t the  -,said  facts  we\t do  not   see\t any
\njustification  for excusing the long delay of 42 days.\t So.
\nthe  appeal  is clearly barred by limitation and  should  be
\ndismissed.  Accordingly the appeal is dismissed.
\nRAGHUBAR  DYAL,\t J.-I respondents’ appearance  and  also  in
\nlodging the statement of case be excused.\n<\/p>\n
I  am however, of opinion that the  appellant’s\t application
\nfor  excusing the delay in the presentation of the  petition
\nfor special leave to appeal be allowed.\n<\/p>\n
It has to be assumed, for the purposes of disposing of\tthis
\napplication,  that  the order under appeal was not  a  final
\norder  within the meaning of that expression in art.  134(1)
\nof the Constitution.  The High Court held so and refused the
\ncertificate.  The appellant has neither preferred an  appeal
\nagainst\t that  order nor questioned its correctness  in\t its
\npetition for special leave.  The reason urged for  condoning
\nthe  delay is that the legal advisers of the appellant\twere
\nof  opinion  that  limitation for the  presentation  of\t the
\npetition  for  special\tleave  would  be  governed  by\t the
\nprovisions  of\tr.  (1)\t of  O.XXI,  Supreme  Court   Rules,
\nhereinafter  called the rules, and that in  accordance\twith
\nthose  provisions the period of limitation would be 60\tdays
\nfrom  the  date of refusal of the certificate  by  the\tHigh
\nCourt.\t If  that rule applied, the petition  for  -,special
\nleave  would  be in time.  The certificate  was\t refused  on
\nFebruary 18, 1963, and the special leave petition was filed’
\non April 16.  The question then is whether the appellant can
\ntake  advantage\t of  the  opinion  of  its  legal  advisers,
\nassuming  that this opinion was erroneous.  I am of  opinion
\nthat  it  should be given that advantage, as the  error.  if
\nany, cannot be said to be of such a character which a  legal
\nadviser could not have possibly given.\n<\/p>\n
The  rule does not expressly state that limitation would  be
\ncounted\t from  the date of refusal of the  certificate\tonly
\nwhen  an application for a certificate under Art. 134  would
\nbe maintainable as an application against an order which  is
\nheld  by  the High Court to be a ‘judgment, final  order  or
\nsentence  in  a criminal proceeding’.  It is  true  that  an
\napplication  under  art.  134  is  contemplated\t to  be\t  an
\napplication against the judgment. final order or sentence in
\na  criminal  proceeding, and that refusal of  a\t certificate
\nunder art. 134. for purposes, of rule 1 (1) of O.XXI. refers
\nto the refusal of an application
\n743<\/span>
\nfor  certificate  against  the\tjudgment,  final  order\t  or
\nsentence  in  a\t criminal proceeding.\tBut  this  does\t not
\nnecessarily  mean  that the rule will not be  applicable  in
\ncases of refusal of a certificate when one applied for it on
\nthe  ground  that the order sought to  be  appealed  against
\namounted  to a judgment, final order or sentence  while\t the
\nHigh  Court came to a different opinion.  The rule does\t not
\nspecifically  -,state  that the date of the refusal  of\t the
\ncertificate  would  be\ttaken to be the\t starting  point  of
\nlimitation  only when the High Court refuses certificate  on
\nthe  -round  that it was not a fit case for  appeal  to\t the
\nSupreme\t Court.\t  If it were so, the rule  would  have\tbeen
\nlimited to those cases.\n<\/p>\n
Further, there is indication in sub-r. (2) itself that\tsuch
\nwas not contemplated by sub-r. (1) of r. 1.. Sub-rule (2) of
\nr. 1 requires the petitioner, in case he desires  limitation
\nto  be counted from the date of refusal of the\tcertificate,
\nto  mention the -rounds for the refusal of  the\t certificate
\nand, in particular, Whether the application for\t certificate
\nwas rejected as being out of time.  An application presented
\nafter the expiry of limitation is not maintainable till\t the
\nCourt  allows the application for the condonation of  delay.
\nThere  must be a reason for providing, in sub-r.  (2),\tthat
\nthe  fact  of the refusal of the certificate  on  -round  of
\nlimitation  must be expressed.\tThe reason is  that  proviso\n<\/p>\n
(iii)  to  sub-r.  (1)\tof  r.\t1  provides  that  when\t  an
\napplication for a certificate is dismissed on the -round  of
\nits  being  out\t of time, limitation for  the  petition\t for
\nspecial leave to appeal will not be counted from the date of
\nthe dismissal of the application.  There is no corresponding
\nprovision  with respect to the limitation being not  counted
\nfrom  the date of refusal. if the refusal be on\t the  ground
\nthat the order sought to be appealed against did not  amount
\nto  a  ‘judgment,  final order or sentence’  in\t a  criminal
\nproceedings.\n<\/p>\n
In  view of these considerations, the advice of\t the  appel-
\nlant’s\tcounsel,  even\tif it be erroneous,  should  not  go
\nagainst the appellant to the extent that the delay in filing
\nof  the\t special leave petition be not condoned.  I  do\t not
\nthink  that the omission to state the ground of\t refusal  in
\nthe  petition for special leave was deliberate in  order  to
\nkeep  back  from  the Court that the  application  had\tbeen
\npresented after the expiry of the period of limitation.
\nit  would  not be irrelevant to consider the nature  of\t the
\npoint  sought  to be urged in the appeal.  The\tquestion  is
\nwhether the High Court was right in considering the order of
\nthe  trial Court rejecting the claim of privilege raised  by
\nthe  Union  Government\tin accordance with  s.\t123  of\t the
\nEvidence  Act  with  respect to the  production\t of  certain
\ndocuments summoned. on the -,round that the disclosure would
\nnot be in public
\n744<\/span>
\ninterest.   If\tthe view of the Courts below is\t wrong,\t the
\nresult of refusing to condone the delay would be that public
\ninterest  will suffer and that consideration should,  in  my
\nopinion, outweigh the lapse on the part of the appellant  in
\nnot  filing the petition for special leave to appeal  within
\ntime  and that too,, in view of the wrong advice or  opinion
\ngiven by its legal advisers.\n<\/p>\n
I  would  therefore allow the application  and\tcondone\t the
\nappellant’s  delay  in\tpresentation  of  the  petition\t for
\nspecial leave.\n<\/p>\n
\t\t\t   ORDER
\nIn accordance with the opinion of the majority, the delay in
\nfiling\tthe  special leave petition is\tnot  condoned.\t The
\nappeal is barred by limitation and is dismissed.
\nAppeal dismissed.\n<\/p>\n
745<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P vs Col. Sujan Singh And Ors on 15 April, 1964 Equivalent citations: 1964 AIR 1897, 1964 SCR (7) 734 Author: K Subbarao Bench: Subbarao, K. PETITIONER: STATE OF U.P. Vs. RESPONDENT: COL. SUJAN SINGH AND ORS. DATE OF JUDGMENT: 15\/04\/1964 BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GUPTA, K.C. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-72454","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P vs Col. 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