THE STATE OF GUJARATversusRATILAL LALJIBHAI TANDOL AND ANR.

 ....                           THE STATE OF GUJARAT                                    A
                                              v.
                      RATILAL LAUIBHAI TANDOL AND ANR.

                                     AUGUST 20, 1997
   _..
   l
                         [G.N. RAY AND G.B. PATTANAIK, JJ.)                             B

               Code of Criminal Procedure, 1973/Law Officers Rules .of 1939.

 -·              S.378/R.50-Circular No. Cri/Misc./5/78/24289/A2 dated 23.7.1979 is-
         sued by Legal Department, Government of Gujarat-District Magistrate re-        c
         quired to report in regard to filing of appeal against acquittaf-Delay in filing
  ·f
         the appeal-High Court directing that proposal for filing appeal should not
         be processed through District Magistrate and making observations indicating
         liability of Public Prosecutor in the event of delay-Observations impugned
         in appeal before this Court-Held, observations made by High Court are
         modified-Directions given by High Court regarding liability of Public D
         Prosecutor in the event of delay attributable to him are deleted-Guidelines
         indicated in order to avoid delay in filing such appeals--Govemment may
     ;
....;.   issue appropriate directions consistent with the guidelines indicated in this
         order-Practice and Procedure-Administration of Criminal justice-Con-
         stitution of India 1950-Article 136.                                             E
               CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
         780 of 1997.

              From the Judgment and Order dated 26.3.96 of the Guprat High
         Court in Misc. Crl. Application No. 2941/95 in Crl. A. No. 375 of 1995.         F
              S.K. Dholakia, Ms. H. Wahi and Ms. Sunita Hazariaka for the
         Appellant.

:i4            Sushi! Kumar (AC.) for the Respondent.
-(                                                                                      G
               The following Order of the Court was delivered :

               Leave granted.

               Heard Mr. S.K. Dholakia, the learned senior counsel appearing for
         the appellant-State of Gujarat and Mr. Sushi! Kumar, the learned senior H
                                           473
    474                  SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A counsel appearing as amicus curiae to assist the Court in this matter.
    Certain observations made by the Gujarat High Court in disposmg of
    Criminal Miscellaneous Application No. 2941of95 in Criminal Appeal No.
    375/95 (The State of Gujarat v. Ratilal Laljibhai Tandol and Anr. are
    impugned in this appeal by the State of Gujarat.

B        It has been submitted by Mr. Dholakia that although on the proposal
  initiated by the Public Prosecutor for preferring appeal against order of
  acquittal the State Government takes the final. decision, the State
  Government has felt that the opinion of the District Magistrate being in
  overall charge of the district is necessary for taking appropriate decision
C by State Government. Our attention has been drawn to the circular dated
  23rd July, 1979 issued by the Legal Department of the Government of
  Gujarat being Circular No. Cri/Misc./5!78/24289/A2. It has been indicated
  in the said circular that the District Magistrate who is holding an important
  position in the District can reflect on several circumstances indicated in
D the circular in his report so that the Government will have the benefit of
  the experience and knowledge of the person who is likely to be most
  conversant with the local condition and circumstances, which facts could
  not be shown or suggested by the Pubic Prosecutor or the Assistant Public
  Prosecutor.

E         Mr. Dholakia has submitted that in view of such perception of the
    State Government, it was decided that the proposal to prefer appeal
    against the order of acquittal should be routed through the District
    Magistrate. In the impugned observations the High Court has given a
    direction that hence forward no proposal should be routed through the
F   District Magistrate. Such direction of the High Court was not appropriate
    even though the High Court had anxiety that there should not be delay in
    preferring appeal in appropriate case.

          Mr. Sushi! Kumar the learned senior counsel appearing as amicus
    curaie has however submitted under the Code of Criminal Procedure, the
G District Magistrate does not come in the picture in the decision making
  process regarding filing an appeal against that order of acquittal. He has
  submitted that there is no difficulty in getting valued opinion from any
  responsible officer of the State Government including the District
  Magistrate but for such opinion proposal to prefer appeal initiated by the
H Public prosecutor is not required to be routed through the District
                            STATEv. R.L TANDOL                            475
    Magistrate Rule 50 of Law Officers' Rules of 1939 which is admittedly A
    being followed even today indicates that the proposal of the Public
    Prosecutor is to be considered by the State Gover.Qlllent and final decision
    is to be taken by the State Government. Such Rule is also in conformity
    with the Code of Criminal Procedure. Therefore, the High Court is jus-
    tified in indicating that under the law, the proposal is not required to be B ·
    routed through the District Magistrate. Mr. Sushi! Kumar has also sub-
    mitted that the High Court has indicated its concern flowing from the
    experience revealed from the large number of cases coming before the
    High Court that because of the procedural wrangles unnecessary delay is
    often committed for which some of the appeals are likely to be dismissed
    on the score of bar of limitation because in some cases inordinate delay C
    may not be properly explained. Mr. Dholakia has however submitted that
    the High Court should have refrained from interfering with the policy
    decision of the State Government by indicating that the role of the District
    Magistrate is to be bye passed altogether. Such direction of the High Court
    will virtually deprive the State Government to get the valued opinion qf the D
    District Magistrate for cogent reasons.

           After taking into consideration the submissions of the learned coun-
    sel it appears to us that the High Court, in its anxiety to ensure that the
    appeal are preferred within reasonable time and avoidable delay does not
    occur in processing the proposal to prefer appea~ has made the impugned E
    obse.rvations. Although we appreciate the anxiety of the High Court that
    the appeal shoul\I be presented within reasonable time and procedural
    wrangles should be avoided so that unnecessary and avoidable delay do not
    take place, it appears to us that some of the observations of the High Court
    are quite strong and should have been avoided. We, therefore, modify the F
    observations made by the High Court by deleting the directions regarding
    the liability of the Public Prosecutor in the event of delay attributable to
    Public Prosecutor. Such deletion is made by hoping that the Public
    Prosecutors will be alive to their duties and responsibilities and the State
    Government will not fail to take appropriate action against the erring G
    Public Prosecutors. In modification of the observation of the High Court
    it is also directed that the concerned Public Prosecutor will initiate the
    proposal for preferring appeal against the order of acquittal and send such
    proposal directly to the Law Department of the State of Gujarat. ·But a
    copy of the proposal should also be sent by the Public Prosecutor to the
'   District Magistrate of the concerned district so that the opinion of t_he H
    476                  SUPREMECOURTREPORTS [1997)SUPP.3S.C.R.

A District Magistrate is obtained by the State Government before final
    decision is taken by the State Government to prefer the proposed appeal. .,.
    The State Government should issue necessary instruction to the District
    Magistrate that the District Magistrate would send its views on the
    proposal as expeditiously as practicable so that proposed appeal may be
B   filed within the period of limitation. If such opinion of the District
    Magistrate is not received by the appropriate Legal Department of the
    State within a reasonable time, the concerned Legal Department will not
    wait for the response of the District Magistrate on the proposal given by
    the Public Prosecutor and a final decision will be taken by the State
    Government even in the absence of opinion of the District Magistrate so
C   that the proposed appeal is not barred by limitation. Needless to point out
    that the State Government should take final decision within such time
    frame so that some reasonable time is left with the Government counsel to
    draw up the memorandum of appeal and to present appeal petition before
                I                         .
    the Court within the period of limitation. The appeal is accordingly dis-
D   posed of. The State Government may issue appropriate directions consis-
    tent with the guideline indicated in this order. We place on record our
    deep appreciation of the assistance rendered by Mr. Sush;t Kumar appear-
    ing as amicus curiae in this matter.

    R.P.                                                 Appeal disposed of.