State of U.P. vs. Col. Sujan Singh and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 71 of 1963

Decision Date: 15 April 1964

Coram: K. Subba Rao, K.C. Das Gupta, Raghubar Dayal

In this matter, the Supreme Court of India examined an appeal concerning the prosecution of Colonel Sujan Singh and others. The respondents had been tried before a Special Judge after the Central Government granted sanction for an offence punishable under section 6(1)(a) of the Prevention of Corruption Act. The accused challenged the sanction, asserting that the sanctioning authority had not properly applied its mind before granting it. One of the accused therefore asked the Court to summon the relevant Home Department record, believing that the record would show that the officer had not exercised proper consideration when issuing the sanction. The Secretary of the Ministry of Home Affairs claimed that the requested documents were protected by official privilege. Both the Special Judge and, subsequently, the High Court in revision rejected the Union Government’s claim of privilege.

The State of Uttar Pradesh then filed a petition in the High Court seeking a certificate under article 134(1)(c) of the Constitution in order to appeal the order rejecting the privilege claim. The High Court held that the order appealed against was merely interlocutory and therefore the petition for a certificate was not maintainable under article 134(1)(c). Dissatisfied with that conclusion, the State filed a petition for special leave to appeal, stating that it had applied for a certificate but the High Court had refused it. The petition for special leave did not state that it was filed out of time, and the Registry, reading the petition’s description that the High Court had dismissed the application without indicating any ground, assumed that the petition was filed within the prescribed period and consequently granted special leave.

After obtaining special leave, the State filed another petition seeking to excuse the delay on the ground that, at the relevant time, the Law Officer in charge of the matter before the High Court had advised the Government that the order under appeal was a final order and that an application should be filed under article 134(1)(c). The State contended that it had acted in good faith on the basis of that advice. It further argued that (1) the order of the High Court in the criminal revision was a final order within the meaning of article 134(1)(c) of the Constitution, and (2) rule 1(1) of order XXI of the Supreme Court Rules does not expressly require that a refusal to grant a certificate be based on an application that is itself maintainable; consequently, even if the High Court had refused the certificate on merit or on the ground of non‑maintainability, the State could rely on the rule to obtain the certificate.

In this case, the appellant argued that (1) the order of the High Court refusing a certificate of appeal was a final order within the meaning of Article 134(1)(c) of the Constitution, and (2) Rule 1(1) of O. XXI of the Supreme Court Rules did not explicitly require that the order of refusal be based on an application that was maintainable; consequently, even if the High Court had refused the certificate on merit or on the ground that the application was not maintainable, the rule could still be invoked by the party. The Court, speaking through Judges K. Subba Rao and K. C. Das Gupta, rejected both submissions. First, the Court held that the order under appeal was not a final order within the meaning of Article 134(1). The order did not purport to decide the rights of the parties, namely the State of Uttar Pradesh and the accused. Even assuming that the order affected a right of the Union Government, the Union Government was not a party to the criminal proceedings, nor had it been a party before the High Court or this Court. The Court observed that the indirect effect of an order issued by a third party, who did not seek to question that order, did not change the interlocutory character of the order, relying on the precedent set in Seth Premchand Satramdas v. State of Bihar [1950] S.C.R. 799. Second, the Court explained that Rule 1(1) of O. XXI presupposes that the application for a certificate is maintainable; the rule authorizes the Court to refuse a certificate only when the conditions prescribed in Article 134(1) have not been satisfied. A reasonable interpretation therefore requires that the refusal of a certificate arise in an application that is maintainable under the said article. Third, the Court described the order as interlocutory on its face and noted that, as far as the Government of Uttar Pradesh was concerned, the order could not be said to have affected any of its rights. Accordingly, the Court concluded that a mistaken legal advice was not a sufficient ground to excuse the delay, and the appeal had to be dismissed as barred by the limitation period. In a dissenting opinion, Justice Raghubar Dayal argued that the appellant should be allowed the benefit of the legal advice it had received, contending that the error, if any, was not of a character that a competent legal adviser could not have made. He observed that the rule does not expressly state that the limitation period begins only from the date of refusal when an application under Article 134 is maintainable. While recognising that an application under Article 134 is intended to be made against a judgment, final order or sentence in a criminal proceeding, and that the rule refers to a refusal of a certificate in such an application, he cautioned that this does not necessarily preclude the rule from applying to refusals of certificates on other grounds.

The Court observed that when an application for a certificate was made on the basis that the order against which appeal was sought constituted a judgment, final order or sentence, the High Court could reach a contrary opinion. The applicable rule did not expressly provide that the date of refusal of the certificate would become the limitation commencement only in those instances where the High Court denied the certificate on the ground that the matter was not a fit case for appeal to the Supreme Court. The Court noted that if the rule were limited in that manner, its operation would be confined solely to such cases, which was not the intention of the legislation.

In the present criminal appellate jurisdiction, the appeal identified as Criminal Appeal No 71 of 1963 was filed by special leave against the judgment and order dated 23 November 1962 of the Allahabad High Court, Lucknow Bench, which had dealt with Criminal Revision No 251 of 1962. Counsel for the appellant comprised S T Desai, O P Rana, Atiqur Rahman and C P Lal, while counsel for respondents 1 and 2 included C B Agarwala, Ravinder Narain, O C Mathur and J B Dadachanji. The judgment was delivered on 15 April 1964 by Justice Subba Rao, with Justice Raghubar Dayal providing a dissenting opinion. The appeal raised the question of whether the Government of India could claim privilege over certain documents sought from its Home Department in a criminal proceeding before the Special Judge, Anti‑Corruption (East), Uttar Pradesh, Lucknow. The respondents had been prosecuted in that court after the Central Government had granted sanction under section 197 of the Code of Criminal Procedure for an offence under section 6(1)(a) of the Prevention of Corruption Act, 1947 (Act 11 of 1947). The respondents objected, alleging that the sanctioning authority had not properly applied its mind when granting the sanction. They asserted that, following a representation by the accused Colonel Sujan Singh for reconsideration of the sanction, the Deputy Secretary in the Home Department had revisited the matter and recorded that the earlier sanction had been based on insufficient data. Consequently, Colonel Singh filed a petition before the Special Judge seeking a summons of the Home Department record, contending that the record would substantiate his claim that the sanctioning officer had not duly considered the application. The Secretary of the Ministry of Home Affairs invoked privilege, arguing that producing the record containing the Deputy Secretary’s notes would be contrary to the interests of the State. Both the Special Judge at first instance and the High Court on revision rejected the Union Government’s claim of privilege. The State of Uttar Pradesh subsequently preferred the present appeal by special leave against the High Court’s order, while the respondents proceeded to file a criminal petition.

In application numbered 149 of 1964, the respondents requested that the Court condone the delay with which they had filed both their appearance and their statement of case. The relevant factual background is set out as follows. The first and second respondents obtained a notice granting them special leave from this Court on 16 January 1964. After receiving that notice, they consulted a local counsel in Lucknow; on the advice of that counsel the first respondent travelled to Delhi on 28 January 1964 together with his local lawyer and made the necessary arrangements with the firm of Messrs J. B. Dadachanji & Co., Advocates. On the same date, 16 January 1964, the respondents also received a communication from the High Court indicating that the records of the case had been dispatched to the Supreme Court. The respondents subsequently filed their appearance on 11 February 1964 and lodged their statement of case on 18 February 1964. If the date of 16 January 1964 were deemed to be the date of service on the respondents, no delay would be apparent in either filing their appearance or filing their statement of case. However, the notice of dispatch of the records had actually been served on the learned counsel for the respondents on 4 November 1963. Under Chapter V, rule 4(1)(c), read with rule 2, of the Rules of the High Court, Allahabad, service of a notice of dispatch of record on an advocate representing a party is considered sufficient service on that party. Because the present appeal arises from an interlocutory order, the advocate who had represented the respondents before the High Court continued to represent them. For the purpose of this determination the Court assumed that the rule was applicable and that the notice had therefore been duly served on the respondents’ counsel. If that assumption is accepted, the respondents were required to file their appearance and their statement of case within one month of that 4 November 1963 notice. Their appearance, however, was not filed until 11 February 1964, which is clearly beyond the prescribed period. The facts therefore show that the respondents filed their appearance within one month of the date on which the notice was served directly on them, but beyond the time limit measured from the date the notice was served on their advocate. The delay concerns only the procedural steps required to make the case ready for disposal and does not involve the filing of any appeal. Having examined the record, the Court is satisfied that the delay was not caused by any negligence on the part of the respondents. Moreover, there is no suggestion that the appellant suffered any prejudice as a result of the delay. In view of these circumstances, the Court considers that the present case is appropriate for condoning the delay. Accordingly, the Court excuses the respondents’ delay in filing both their appearance and their statement of case. The question of whether the respondents’ delay in entering appearance is thereby excused is addressed at the outset, noting that the Court had granted special leave even though the appeal was prima facie barred by limitation, and the appellant had not filed a separate application for condonation of delay before the special leave was granted.

In order to clarify the factual background, the Court noted that the judgment of the High Court in the criminal revision was dated 23 November 1962 and that a certified copy of that judgment was delivered to the appellant on 5 December 1962. Subsequently, on 19 December 1962, the appellant filed a petition before the High Court of Judicature at Allahabad requesting a certificate that the case was suitable for an appeal to the Supreme Court. The High Court, on 18 February 1963, held that the order that the appellant sought to challenge was merely interlocutory and therefore the petition could not be maintained under article 134 (1)(c) of the Constitution of India. Following that decision, the appellant filed a petition for special leave to appeal against the order of the High Court in the criminal revision on 16 April 1963 before this Court. In paragraph 19 of that petition, the appellant explained that the High Court had refused to grant the certificate for leave to appeal to the Supreme Court, the refusal being made by the order dated 18 February 1963. The appellant further submitted that if the application for the certificate had been maintainable before the High Court, the appeal L / P(D)ISCI‑24 would have been filed within the prescribed period; however, if the application had not been maintainable, the limitation period would have expired on 5 March 1963, rendering the appeal out of time by forty‑two days. Counsel for the appellant argued that special leave had been granted on 10 May 1963 and that, because the respondents had not raised a limitation objection until they filed their own petition in this Court on 26 February 1964, the respondents should be barred from raising that objection at such a late stage. The Court was not persuaded by that submission. It observed that the present case was not one in which the Supreme Court had excused a delay in filing a petition for special leave and, thereafter, the respondents, aware of that fact, allowed the appellant to incur substantial costs and only later, after a prolonged delay, contended that the earlier delay should not have been excused. Rather, the Court found that the appellant had failed to bring to its notice that the petition for special leave was itself out of time. The Court further explained that the Registry could not point out the defect because the petition stated only that the application under article 134 (1)(c) of the Constitution had been dismissed by the High Court, without specifying the ground of dismissal. Consequently, this Court had assumed that the petition for special leave was timely and therefore granted the special leave. The Court then quoted Order XXI, rule 2, of the Supreme Court Rules, which provides that when the limitation period is claimed to commence from the date of refusal of a certificate, it is not necessary to file the order refusing the certificate; however, the petition for special leave must be accompanied by an affidavit stating the date of the judgment sought to be appealed, the date on which the certificate application was made to the High Court, the date of the order refusing the certificate, and the specific ground or grounds on which the certificate was refused, particularly whether the application for the certificate was dismissed as being out of time.

In this case, the Court noted that the applicable rule required the petitioner to state in the supporting affidavit the date on which the High Court issued the order refusing the certificate, the specific ground or grounds for that refusal, and expressly whether the certificate application had been dismissed as being out of time. The Court explained that because this duty fell on the petitioner, a failure to include those particulars prevented the Registry from detecting the delay in filing the special leave petition and from bringing the matter to the Court’s attention. Consequently, the Court identified two possible courses of action: first, to dismiss the appeal as barred by the limitation period; second, to allow the appellant, at this very late stage, to file a separate petition seeking relief from the delay and to consider that petition on its merits. The Court emphasized that ordinarily no indulgence should be granted to a party who, with full knowledge, filed a special leave petition without disclosing a material circumstance in the affidavit on the basis of an erroneous view of law that the appeal was timely. Nevertheless, with some hesitation, the Court permitted the appellant to file a petition for excuse of the delay, and the appellant subsequently did so. The Court then proceeded to examine the petition for excuse of delay as if it had been filed together with the original special leave petition. The petition advanced two principal reasons: first, the Law Officer then in charge of the matter in the High Court had advised the Government that the order under appeal constituted a final order and that an application should initially be made under Article 134(1)(c) of the Constitution so that the opposite party could not claim the appellant had failed to approach the High Court for a certificate; this advice had been accepted by the Government. Second, the appellant asserted that it acted in good faith because, relying on legal advice, it believed the limitation period should be counted from 18 February 1963, the date of the High Court’s order refusing the certificate, and that this order had been filed along with the present petition. The respondents countered by filing an affidavit denying that the order was a final order and contending that there was insufficient justification to excuse the delay. Counsel for the appellant argued that the High Court order dated 23 November 1962, issued in the criminal revision, qualified as a final order within the meaning of Article 134(1) of the Constitution. The Court then quoted the relevant portion of that article, which begins with the words “An”.

In this case the Court explained that under Article 134(1) of the Constitution an appeal to the Supreme Court may arise only from a judgment, a final order or a sentence rendered in a criminal proceeding of a High Court. The Court expressed difficulty in classifying the order that was under challenge as a “final order” within that meaning. The Court referred to the earlier decision in Seth Premchand Satramdas v. The State of Bihar, where an order of the Patna High Court dismissing an application under section 21(3) of the Bihar Sales Tax Act 1944 was held not to be a final order. The Court also cited the definition offered by Justice Fazl Ali, who observed that an order cannot be regarded as final if it does not, of its own force, bind or affect the rights of the parties. Although that definition was given in a different context, the Court applied it equally to the expression in Article 134. The Court then considered whether the order issued by the Special Judge, which allowed the respondents to call for the production of a document from the Union Government, could be described as a final order in the criminal proceeding. The criminal proceedings had been instituted against the respondents under section 6(1)(a) of the Prevention of Corruption Act 1947 and were still pending before the Special Judge. During those proceedings the respondents filed an application seeking the Union Government’s document, and the Special Judge permitted that application. The Court noted that this order was merely interlocutory; it did not determine the rights of the State of Uttar Pradesh or of the accused, but merely facilitated the accused in having the document proved and exhibited as evidence. The order therefore related only to a procedural step for the admission of evidence. Although the High Court affirmed that interlocutory order on revision, counsel for the respondents argued that the order negated the Union Government’s claim of privilege and therefore decided a right of the Union Government to withhold the document. The Court observed that even if the order were said to affect a right of the Union Government, the Union Government was not a party to the criminal proceedings, nor was it a party before the High Court or before this Court. The indirect effect of the order on a third party that does not seek to challenge the order does not change its interlocutory character. Consequently, the Court concluded that the order made by the High Court was not a final order within the meaning of Article 134(1) of the Constitution. The Court also noted that the High Court itself had held that the order sought to be appealed from was not a final order.

In this case, the Court observed that the order issued under Article 134(1) of the Constitution had become final, and that the appellant had not filed any appeal against that order. The Court held that the appellant could not disregard that final order for the purpose of obtaining special leave and could not argue that the application before the High Court was maintainable, nor that the High Court’s order should be treated as having been decided on its merits, even though the High Court expressly rejected the petition on the ground that it was not maintainable. Accordingly, the Court concluded that, irrespective of the approach taken, the limitation period for filing a special leave petition could not be calculated from the date on which the High Court refused to issue a certificate of fitness to appeal to the Supreme Court.

The Court rejected the contention that the rule governing the issuance of a certificate did not require the underlying application to be maintainable, and therefore asserted that a party could not exploit the rule simply because the High Court had refused the certificate, whether the refusal was based on merits or on the ground of non‑maintainability. The Court explained that the rule presupposes a maintainable application for a certificate, and that the refusal must be grounded on the failure to satisfy the conditions laid down in Article 134(1) of the Constitution. Accepting the appellant’s construction, the Court warned, would open the door to fraud and evasion of the rule, allowing a party whose appeal was barred to knowingly file an unmaintainable petition, obtain a dismissal, and then claim the additional period of limitation provided by the rule. Consequently, the Court held that a reasonable interpretation of the rule requires that a refusal of a certificate can arise only from an application that is maintainable under the said Article.

Proceeding to the question of excusing delay, the Court noted that the affidavit cited the Law Officer’s opinion that the application for a certificate was maintainable under Article 134(1). The Court found no justification for that opinion and observed that there was no conflicting judicial view on the matter. The sole issue before the Law Officer was whether the order sought to be appealed from constituted a final order. The Court found the order to be interlocutory on its face and, as it affected the Government of Uttar Pradesh, determined that none of the Government’s rights had been impaired by that order. Accordingly, the Court declined to regard the erroneous legal advice as a sufficient ground for excusing the delay. Moreover, the Court recalled that on 18 February 1963 the High Court, in a considered judgment, held that the order in question was not a final order and that an application under Article 134(1) was therefore not maintainable. The Court therefore concluded that the period for preferring an appeal could not be computed from the date of the High Court’s refusal to issue a certificate.

The Court observed that the period for filing an appeal from the principal order of the High Court would not terminate until 5 March 1963, which gave the appellant an additional fifteen days to take steps to prefer the appeal. Yet no steps were taken to file the appeal, and instead an appeal was filed on the basis of the original opinion of the Law Officer that the limitation period could be computed from the date of the order refusing to issue the certificate. Information supplied by counsel for the appellant indicated that the Government decided to file the appeal only on 8 March 1963, that is, after the time for filing the appeal had expired. After further correspondence between the Government of Uttar Pradesh and the counsel representing it before the Supreme Court, the special leave petition was filed only on 16 April 1963, completely ignoring the reasons given by the High Court in dismissing the application for a certificate of fitness. On the basis of those facts, the Court found no justification for excusing the long delay of forty‑two days. Consequently, the appeal was clearly barred by limitation and was ordered to be dismissed. Accordingly, the appeal was dismissed. The judge noted that the respondents’ appearance and the lodging of their statement of case could be excused. However, the judge was of the opinion that the appellant’s application for excusing the delay in presenting the petition for special leave to appeal should be allowed. For the purpose of disposing of that application, it was assumed that the order under appeal was not a final order within the meaning of article 134(1) of the Constitution. The High Court had held so and had refused the certificate. The appellant had neither preferred an appeal against that order nor questioned its correctness in the petition for special leave. The appellant argued that its legal advisers were of the opinion that the limitation for filing the petition for special leave was governed by rule (1) of Order XXI of the Supreme Court Rules, which provides a sixty‑day period measured from the date of refusal of the certificate by the High Court. If that rule applied, the petition filed on 16 April 1963 would have been timely, since the certificate was refused on 18 February 1963. The Court then considered whether the appellant could rely on its legal advisers’ opinion even if that opinion was erroneous. The judge held that the appellant should be permitted to rely on the opinion, because any error could not be said to be of such a character that a legal adviser could not have possibly made. The rule does not expressly state that limitation would be counted from the date of refusal of the certificate only when an application for a certificate under article 134 would be maintainable as an application against an order which

In this case the High Court held that the order under consideration was a “judgment, final order or sentence in a criminal proceeding”. The Court noted that an application made under article 134 is intended to be an application against such a judgment, final order or sentence, and that a refusal of a certificate under article 134, for the purposes of rule 1(1) of Order XXI, refers to the refusal of an application for a certificate against that judgment, final order or sentence. However, the Court observed that this description does not automatically exclude the application of the rule to situations where a certificate is refused on the ground that the order sought to be appealed was alleged to be a judgment, final order or sentence, while the High Court reached a different conclusion. The Court further explained that the rule does not expressly state that the date of refusal of the certificate becomes the commencement point of limitation only when the High Court rejects the certificate because the case is not fit for appeal to the Supreme Court. If such a limitation were intended, the rule would have been confined to those particular cases. Moreover, the Court pointed out that sub‑rule (2) of rule 1 itself indicates that sub‑rule (1) was not meant to cover that scenario. Sub‑rule (2) requires a petitioner, who wishes the limitation period to be counted from the date of refusal, to specify the reasons for the refusal, and in particular to state whether the application for a certificate was rejected on the ground of being out of time. The Court reminded that an application filed after the expiration of the limitation period is not maintainable unless the Court condones the delay. Consequently, sub‑rule (2) includes a provision that the fact of a refusal on the ground of limitation must be disclosed. The rationale for this requirement is found in proviso (iii) to sub‑rule (1), which provides that when an application for a certificate is dismissed because it is out of time, the limitation for the special leave petition will not be counted from the date of that dismissal. The Court observed that there is no analogous provision addressing a situation where the refusal is based on the ground that the order appealed does not constitute a “judgment, final order or sentence” in criminal proceedings. Considering these points, the Court concluded that even if the appellant’s counsel gave erroneous advice, that error should not be held against the appellant to the extent that the delay in filing the special leave petition is not condoned. The Court further expressed the view that the failure to state the ground of refusal in the special leave petition does not appear to be a deliberate attempt to conceal that the application was filed after the limitation period had expired. Accordingly, the Court decided that the petition for special leave should be entertained despite the procedural lapse, provided that the delay is duly condoned, and that the omission was not material enough to prejudice the appellant.

The Court first considered the precise nature of the issue that the appellant attempted to raise in the appeal. The central question was whether the High Court had correctly upheld the order of the trial Court that rejected the claim of privilege asserted by the Union Government under section 123 of the Evidence Act in relation to the production of certain summoned documents, the trial Court having held that such disclosure would not be in the public interest. The Court noted that if the view taken by the lower courts were erroneous, then refusing to condone the appellant’s delay would adversely affect the public interest, and that such a consideration should outweigh the appellant’s failure to file the petition for special leave to appeal within the prescribed period, especially in view of the erroneous advice that had been given by the appellant’s legal advisers. Accordingly, the Judge stated that he would allow the application and would condone the appellant’s delay in presenting the petition for special leave. However, the order that followed reflected the majority view: the delay in filing the special‑leave petition was not condoned, the appeal was held to be barred by limitation, and the appeal was dismissed.