# STATE OF U.P v. COL. SUJAN SINGH AND ORS

- **Citation:** [1964] 7 S.C.R. 734
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Criminal Appeal No. 71 of 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-col-sujan-singh-and-ors-3113
- **Pages:** 11

## Headnote

1964
April z,j
734
SUPREME COURT REPORTS
[1964}
STATE OF U.P.
v.
COL. SUJAN SINGH AND ORS.
[K. SuBBA RAO, K .. C. DAS GUPTA AND RAGHUBAR DAYAL,
JJ.]
Criminal Trial-Sanction by Central Government-Proceeding pending before special Judge-Accused asking for production of document fr"m the Union Government-Privilege
claimed by Government-Special Judge and High Coort in
revision reiccting the claim of privilege~Order if a "fina.! order',.
-Petition for grant of certificate-Maintainability-Petition for
special !eave barred by !imitation-Petition for excusing delay
on wrong legal advice-If a sufficient ground-Constituticn of
India, Art. 134(1)(c)-Supreme Court Rules, 1959, 0.21. r. 1(1) .
. The respondents were prosecuted in the court of the special
Judge after obtaining the sanction of the Central Government,.
for an offence under s. 6(l)(a) of the Prevention of Corruption
Act. They put an objection that the sanctioning authority did
not apply his mind properly when sanction was granted. One
of the respondents asked the Court to summon the concerned
record of the Home Department for, it would substantiate his
assertion that the concerned officer did not apply his mind
earliar in according sanction for his prosecution. The Secretary
Ministry of Home Affairs, claimed privilege. The Special Judge
and the High Court in revision rejected the claim of privilege
of the Union Government. The appellant then filed a petition
in the High Court for grant of a certificate. The High Court
held that the order sought to be appealed against was an interlocutory one and, therefore, the petition ·nas not maintainable
under Art. 134(l)(c) of the Constitution. Against the order of the
High Court in revision the appell'ant filed a petition for special
leave to appeal stating that he apolied for a certificate to the
High Court but it was refused. The appellant did not bring tothe notice of this Court that the petition for special leave was
out of time. The Registry could not point out the defect as in the
petition it was stated that the application under Art. 134(1)(c)
was dismissed by the High Court without indicating on what
ground it did and this Court assumed that it was in time and
granted special leave. However after obtaining the perrrJission
of this Court the ap~dlant filed a petition for excusing the delay
on the ground that the Law Officer, who was at the relevant
time in charge of the matter in the High Court, advised the
Government that the order under appeal was a final order and
that an application should be filed under Art. 134(1)(c) of the
Constitution and that the appellant acted bonafide. The appellant contended 0) that the o"der of the High Court in the criminal revision was a final order within the meaning of Art. 134
(lJ(c) of the Constitution and (2) that the rule 1(1) of 0. XX!
of the Supreme Court Rules does not say in express terms that
the order of refusal to give a certificate must be on an annlication which is maintainable and, therefore, if in fact the High
Court refused to give a certificate. whether on merits or on the
ground that it was not maintainable, the party could take
advantage of the said rnle.
Hdd (per K. Subba Rao and K. C. Das Guota, JJ): (i) The
order under appeal was not a final order \\,ithin the meaning
of Art. 134(1) of the Constitution. It did not purport to decide
7 S.C.R.
SUPREME COURT REPORTS.
735
1964
State of U.P.
v.
the rights of the parties. namely. the State U.P. and the accused.
Assuming that it decided some right of the Union Government.
the Union Government was neither a party to the criminal
proceedings nor was it a party either before the High Court
.or before this Court. The indirect effect of the order of a third
party to the proceedings, who did not seek to question that
order, did not deprive the order of dts interlocutory character.
Col. Su.jan Singh
and··o:lwr
Seth Premchand Satramdas v. State of Bihar f1950] S.C.R.
799, relied on.
(ii) Rule 1(1) of 0. XXI presupposes that the application

## Text

1964
April z,j
734
SUPREME COURT REPORTS
[1964}
STATE OF U.P.
v.
COL. SUJAN SINGH AND ORS.
[K. SuBBA RAO, K .. C. DAS GUPTA AND RAGHUBAR DAYAL,
JJ.]
Criminal Trial-Sanction by Central Government-Proceeding pending before special Judge-Accused asking for production of document fr"m the Union Government-Privilege
claimed by Government-Special Judge and High Coort in
revision reiccting the claim of privilege~Order if a "fina.! order',.
-Petition for grant of certificate-Maintainability-Petition for
special !eave barred by !imitation-Petition for excusing delay
on wrong legal advice-If a sufficient ground-Constituticn of
India, Art. 134(1)(c)-Supreme Court Rules, 1959, 0.21. r. 1(1) .
. The respondents were prosecuted in the court of the special
Judge after obtaining the sanction of the Central Government,.
for an offence under s. 6(l)(a) of the Prevention of Corruption
Act. They put an objection that the sanctioning authority did
not apply his mind properly when sanction was granted. One
of the respondents asked the Court to summon the concerned
record of the Home Department for, it would substantiate his
assertion that the concerned officer did not apply his mind
earliar in according sanction for his prosecution. The Secretary
Ministry of Home Affairs, claimed privilege. The Special Judge
and the High Court in revision rejected the claim of privilege
of the Union Government. The appellant then filed a petition
in the High Court for grant of a certificate. The High Court
held that the order sought to be appealed against was an interlocutory one and, therefore, the petition ·nas not maintainable
under Art. 134(l)(c) of the Constitution. Against the order of the
High Court in revision the appell'ant filed a petition for special
leave to appeal stating that he apolied for a certificate to the
High Court but it was refused. The appellant did not bring tothe notice of this Court that the petition for special leave was
out of time. The Registry could not point out the defect as in the
petition it was stated that the application under Art. 134(1)(c)
was dismissed by the High Court without indicating on what
ground it did and this Court assumed that it was in time and
granted special leave. However after obtaining the perrrJission
of this Court the ap~dlant filed a petition for excusing the delay
on the ground that the Law Officer, who was at the relevant
time in charge of the matter in the High Court, advised the
Government that the order under appeal was a final order and
that an application should be filed under Art. 134(1)(c) of the
Constitution and that the appellant acted bonafide. The appellant contended 0) that the o"der of the High Court in the criminal revision was a final order within the meaning of Art. 134
(lJ(c) of the Constitution and (2) that the rule 1(1) of 0. XX!
of the Supreme Court Rules does not say in express terms that
the order of refusal to give a certificate must be on an annlication which is maintainable and, therefore, if in fact the High
Court refused to give a certificate. whether on merits or on the
ground that it was not maintainable, the party could take
advantage of the said rnle.
Hdd (per K. Subba Rao and K. C. Das Guota, JJ): (i) The
order under appeal was not a final order \\,ithin the meaning
of Art. 134(1) of the Constitution. It did not purport to decide
7 S.C.R.
SUPREME COURT REPORTS.
735
1964
State of U.P.
v.
the rights of the parties. namely. the State U.P. and the accused.
Assuming that it decided some right of the Union Government.
the Union Government was neither a party to the criminal
proceedings nor was it a party either before the High Court
.or before this Court. The indirect effect of the order of a third
party to the proceedings, who did not seek to question that
order, did not deprive the order of dts interlocutory character.
Col. Su.jan Singh
and··o:lwr
Seth Premchand Satramdas v. State of Bihar f1950] S.C.R.
799, relied on.
(ii) Rule 1(1) of 0. XXI presupposes that the application
for the certificate is maintainable and the Court refuses to give
it on the ground that the condition laid down in Art. 134(1) of
the Constitution have not been complied with. On a reasonable
dnterpretation of the rule, it could only mean that the refusal
of the certificate must be in an application maintainable under
the said Article.
(iii) The order ex facie was an interlocutory order and so
far as the Government of U.P. was concerned it could not
possibly be held that any of its rights had been affected by that
order. In the circumstances, it must be held that a wrong legal
advice is not a sufficient ground for excusing the delay, and· the
appeal therefore must be dismissed as barred by limitation.
Per Raghubar Dayal, J.
(dissenti)nq:):
The
appellant
should te given the advantage of the opinion of its legal advisers as the error, if any, could not be said to be of such a character which a legal adviser could not have poss;bly given.
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 Art. 134 would be maintainable. It is true that an application under Art. 134 is cmltenipilated to be an application against the judgment, final order
or sentence in a criminal proceeding and that refusal of a certificate under Art. 134, for purpases of ru,le 1(1) of 0. XXI, refers
to the refusal of an application for certificate against the judgment, final order or sentence in a criminal proceeding. But this
does not necessarily mean that the rule will not be applicable
in cases of refusal of a certificate when one applied for it on
the ground that the ordef sought to be appealed against amounted to a judgment, final order or sentence while'the High Court
came to a different opmion. The rule does not specifically shte
that the date of the refusal of'the certificate would be taken to
be the starting point of limitation only when the High Court
:iefuses ce:rtificate on the ground that it was not a fit case for
appeal to the Supreme Court. If it were so, the rule would have
bee11 limited to those cases.
CRIMINAL APPELLATE
JURISDICTION: Criminal Appeal
No. 71 of 1963. Appeal by special leave from the judgment
and order dated November 23, 1962 of the Allahabad High
Court (Lucknow Bench at Lucknow) in Criminal Revision
No. 251 of 1962.
S T. Desai, 0. P. Rana, Atiqur Rahman and C. P. Lal,
for the appellant.
C. B. Agarwala, Ravinder Narain, 0. C. Mathur and
J. B. Dadachanji, for respondents nos. 1 and 2.
April 15, 1964. The Judgment of SuBBA RAO and DAS
GUPTA JJ. was delivered by SUB BA RAO J. RAG HUB AR DAYAL J.
delivered a dissenting Opinion.
1964
State of U.P,
v.
Col. Sujan Singh
an~ Otller
Subba Rao, J.
736
SUPREME COURT REPORTS
[1964]
SUBBA RAo, J.-This appeal by special leave raises the·
question of the privilege raised by the Government of fodia
in respect of certain documents called for from i!S Home Department in a criminal proceeding pending in the Court of
the Special Judge, Anti-Corruption (East), U.P., Lucknow.
The respondents were prosecuted in the said Court, after
obtaining the sanction of the Central Government under s.
197 of the Code of Criminal Procedure, for an offence under
s. 6(1)(a) of the Prevention of Corruption Act, 1947 (Act 11
of 1947). An objection was taken before the said court on
behalf of the respondents that the sanctioning authority
did not apply his mind properly when sanction for the
prosecution was granted. It was stated on behalf of the
respondents that on a representation made by one of the
accused, Col. Sujan Singh, for reconsideration of the
order of his prosecution, the Deputy Secretary in the Home
Department reconsidered the matter and made notings
on his application to the effect that the sanction accorded
earlier for his prosecution was given on insufficient data. He·
filed a petition before the Special Judge to summon the concerned record of the Home Department on the ground that
the said record would substantiate his a5sertion that the concerned officer did not apply his mind earlier in according
sanction for his prosecution. The Secretary, Ministry of Home.
Affairs, claimed privilege on the ground that the production·
of the record containing the said notings of the Deputy Secretary would not be in the interests of the State. The Special
Judge in the first instance and the High Court in revision rejected the claim of privilege raised by the Union Govern·
meat. The State of U.P. has preferred the present appeal by
special leave against the order of the High Court.
The respondents filed criminal petition No. 149 of 19Ti4
for condonation of delay in filing appearance and the statement of case. The facts relevant to this application are briefly
as follows. Respondents 1 and 2 received the notice granting
special leave by this Court on January 16. 1964. After the
receipt of the notice they conta.cted their local advocate at
Lucknow and, on his advice, the !st respondent. along with
his local advocate, came to Delhi on January 28, 1964, and
made necessary arrangements with Messrs. J. B. Dadachanji & Co., Advocates. On January 16, 1964, respondents 1 and
2 received a notice from the High Court intimatin~ them
that the records of the case had been despatched to the Supreme Court. On February 11, 1964, they filed their appearance
and on February 18, 1964, their statement of case. If January
16, 1964, was the date of service on them, there would not
be any delay in making their appearartce or filing their statement of case. But the notice of the despatch of the records
7 S.C.R.
SUPREME COURT REPORTS
737
was served on the learned counsel for respondents 1 and 2
on November 4, 1963. Under Ch. V, r. 4(l)(c), read with r.
2, of the Rules of the High Court, Allahabad, where a party
is represented by an advocate, a service of notice of despatch
of record on such advocate is deemed to be sufficient service.
As the present appeal arises out of an interlocutory order
it may be said. that the advocate representing the respondents
in the High Court still continues to represent them. We assume
for the purpose of this case that the rule is valid and the
notice was duly served on the advocate. If that be so, the
respondents should have filed their appearance and lodged
their statement of case within a month from the said date.
But they filed their appearance on February 11, i 964, which
is clearly beyond time. It will be seen from the said facts that
the respondents had filed their appearance within one month
from the date of service of notice on them, but beyond time
from the da(e the notice was served on their advocate. The
said delay is not in the presentation of any appeal but only
in following the procedural steps for making the case ready
for disposal. We are satisfied by perusing the record that the
delay was not due to negligence on the part of the respondents. It is not suggested that the appellant is in any way
prejudiced by this delay. In the circumstances we thlnk that
this is a fit case for excusing the delay. We excuse the delay in
filing respondents' appearance and also in lodging the statement of case.
·
Whether the delay of the respondents in entering appearance is excused or not, we are at the outset confronted
with the situation that this Court gave special leave when the
appeal was prima facie barred by limitation without the appellant filing an application for excusing the delay and the
Court excusing the same. A few facts would make the position clear. The Judgment of the High Court in the criminal
revision is dated November 23, 1962. A certified copy of the
Judgment was delivered to the appellant on December 5, 1962.
On December 19. 1962, the appellant filed a petition in the
High Court of Judicature at Allahabad for a certificate that
the case was a fit one for appeal to the Supreme Court. On
February 18, 1963, the High Court held that the order sought
to be appealed against was an interlocutory one and, therefore, the petition was not maintainable under Art. 134 (l)(c)
of the Constitution of India. On April 16, 1963 the appellant
filed a petition in this Court for special leave to appeal against
the order of the High Court in the criminal revision. In para.
19 of that petition it was stated that the appellant applied to
the High Court for a certificate for leave to appeal to the Supreme Court but the High Court by order dated February 18,
1963, refused to grant the certificate applied for. The appeal
J,•r(l')ISCT-24
1964
81,ateof U. P.
v.
Col. Sujan Singh
and Othera
Subba Rao, J,
738
SUPREME COURT REPORTS
(1964]
1964
would be in time if that application was maintainable in
Stale of U.P.
the High Court, but would be out of time if that application
001• 8::.,. Si"flh was not mainta~nable there, for· in the latter event the time
and 3,,.,,,
would have exp!fed on March 5, 1963, and the appeal would
have been out of time by 42 days.
Suboo Rao, J.
Learned counsel for the appellant contends that special
leave was granted on May 10, 1963, and that, as the respondents have not taken objection on the ground that it was
barred by limitation till they filed their petition in this Court
on February 26, 1964, we shall not permit them to raise this
plea at this very late stage. We are not impressed by this
argument. This is not a case where the Supreme Court excmed the delay in filing the petition for special leave and the
respondents with the knowledge of that fact permitted the
appellant to incur heavy expenditure and after a long delay
raised the objection at the time of hearing of the appeal that
the delay should not have been excused. But this is a case
where the appellant did not bring to the notice of the Court
that the petition for special leave was out of time. The Registry could not point out the defect as in the petition it was
stated that the application under Art. 134(1)(c) of the Constitution of India was dismissed by the High Court without
indicating on what ground it did and this Court assumed that
the petition for special leave was in tirhe and gave special
leave. Order XXI, r. 2, of the Supreme Court Rules reads:
"Where the period of limitation is claimed from the
date of refusal of a certificate, it shall not be necessary to file the order refusing a certificate, but
the petition for special leave shall be accompanied
by an affidavit stating the date of the judgment
sought to be appealed from, the date on which
the application for a certificate was made to the
High Court, the date of the order refusing the
certificate and the ground or grounds on which
the certificate was refused and in
particular
whether the application for a certificate was dismissed as being out of time."
Under the said rule it is incumbent upon the petitioner to
state in the affidavit filed in support of the petition the date
of the order of the High Court refusing the certificate and
the ground or grounds on which the certificate was refused.
If the appe!Jant had complied with this rule, the Registry of
this Court would have noticed the delay in filing the special
leave petition and brought that to the notice of the Court.
In the circumstances there are two courses open to us: one
is to dimiss the appeal on the ground that it was barred by
limitation, and the other is to permit the appellant to file
'i S.C.R.
SUPREME COURT REPORTS
739
a petition at this very late stage for excusing the delay in filing the special leave petition and consider that petition on
merits. Ordinarily no indulgence should be given to a party
when the said party with open eyes filed a petition for special
leave without disclosing a material circumstance in the affidavit on the basis of a wrong view of law that the appeal
was in time. With some hesitation we gave liberty to the appellant to file a petition for excusing the delay and they have
done so.
We shall now consider the petition for excusing the delay
on merits, as this Court would have done if that application
had been filed along with the special leave petition.
Two reasons are given in the application for excusing
the delay, namely, (1) the Law Officer, who was at the relevant time in charge of the matter in the High Court, advised
the Government that the order under appeal was a final
order and that an application should be filed under Art.
I 34(l)(c) of the Constitution in the first instance so that the
other side might not contend that the appellant did not approach the High Court for a certificate, and that the said
advice was accepted by the Government; and (2) the appellant acted bona fide, as it believed on legal advice that the
perio:I of limitation would be counll'.d from February 18,
1963, i.e .. the date of the order of the High Court refusing to
give certificate and that the order was also filed along with
the petition in this Court. The respondents filed a counteraffidavit denying that the order was a final order and stating
that there was not sufficient reason for excusing the delay.
The learned counsel for the appellant contended that the
order of .the High Court dated November 23, 1962, in the
criminal revision was a final order within the meaning of Art.
134(1) of the Constitution. The material part of the said
article reads :
"An appeal shall lie to the Supreme Court from any
rudgment. final order or sentence in a criminal
proceeding of a High Court in the territory of
India .................. ".
We find it difficult to hold that the order under appeal i5 a
final order within the meaning of the said article. In Seth
Premchand Satramdas v. The State of Bihar(') it was held that
an order of the Patna High Court dismissing an application
under s. 21(3) of the Bihar Sales Tax Act, 1944. to direct the
•
Board of Revenue, Bihar, to state a case and to refer it to the
(') [1950] S.C.R. 799, 804.
L/P(D)ISCI-24(a)
1964
State of U.P.
v.
Coi Svjan Singl
aM Otkesa
Subba Rao, J.
196'
State of U.P.
To
Ool. Sujan Singh
and Othe.ra
Subba RM, J.
740
SUPRE:.IIE COURT REPORTS
[1964]
High Court was not a "final ordec". This Court, speaking
through Faz! Ali, J., defined the expression 'final order" thus:
"It seems to us that the order appealed against in this
case. cannot be regarded as a final order, because
it does not of its own force bind or affect the rights
of the parties".
Though this definition is given in a different context, it will
equally apply to that expression in Art. 134 of the Constitution.
Can it be said that the Special Judge in allowing the
petition of the respondents to call for the production of a
document from the Union Government is a final order in the
criminal proceeding? The criminal proceeding>. were taken
against the respondents for an offence under s. 6(l)(a) of the
Prevention of Corruption Act, 1947. The proceedings are
now pending in the court of the Special Judge.
In the course
of those proceedings the respondents filed an application .for
the production of a document by the Union Government and
that was allowed by the court. The said order is only an
interlocutory order pending the proceedings. It does not purport to decide the rights of the parties, namely, the State of
U.P. and the accused. It enables the accused to have the said
document duly proved and exhibited in the case. It relates
only to a procedural step for adducing evidence. The High
Court confirmed that order in revision. But the learned counsel contents that it negatives the claim of prjvilege made by
the Union Government and, therefore, it decides against the
right ot the Union Government to withhold the production of
the document.
Assuming that the order decides some right
of the Union Government, on which we do not express any
opinion, the Union Government is neither a party to the criminal proceedings nor fa it a party either before the High
Court or before us. The indirect effect of that order on a
third party to the proceedings, who does not seek to question
that order, does not deprive the order of .its interlocutory
character. We, therefore, hold that the order made by the
High Court is not a final order within the meaning of Art.
134(1) of the Constitution.
That apart the order of the High Court holding that the
order sought to be appealed from was not a final order within
the meaning of Art. 134(1) of the Constitution has become
final. The appellant has not filed any appeal against that
order. It cannot ignore that order for the purpose of special
leave and contend that the application before the High Court
was maintainable and the order made by the High Court must
be deemed to have been made on merits, though in express
terms it rejected the petition for the reason that it was not
maintainable. In either view the period of limitation for
filing the special leave petition could not be computed from
'
7 S.C.R.
SUPREME COURT REPORTS
-
741
the date of the order of the High Court refusing to give a certificate to appeal to the Supreme Court. It is then contended
that the rule does not say in express terms that the said order
of refusal to give a certificate must be on an application which
is maintainable and, therefore, if in fact the High Court refused to give a certificate, whether on merits or on the ground
that it was not maintainable, the party can take advantage of
the said rule. We cannot accede to this argument. The rule
presupposes that the application for the certificate is maintainable, and the court refuses to give it on the ground that
the conditions laid down in Art. 134(1) of the Constitution
have not been complied with. If the construction put forth
by the appellant be accepted, it will give room for fraud and
evasion of the rule.
A party whose appeal has become barred can file a petition with the knowledge that it is not maintainable, get an order of dismissal and then seek to take advantage of the additional period of limitation provided by the
ruie. The rule, therefore, must be interpreted reasonably and
if so interpreted. it could only mean that the refusal of the
certificate must be in an application maintainable under the
said Article.
Now we shall proceed to consider the application for excusing delay on its merits. The reason for the delay given in
the affidavit is that the Law Officer was of the opinion that
the application for a certificate was maintainable under Art.
134(1) of the Constitution. We do not see any justification for
this opinion. There is no conflict of judicial opinion on this
question. The only question that was before the Law Officer
was whether the order sought to be appealed from was a final
order. The order ex facie was an interlocutory order and so
far as the Government of U.P. was concerned it could not possibly be held that any of its rights had been affected by that
order. In the circumstances we cannot hold that a wrong
legal advice is a sufficient ground for excusing the delay. What •
is more, on February 18, 1963, the High Court in a considered
order held that the order sought to be appealed from was not
a final order and, therefore, an application under Art. 134(1)
of the Constitution was not maintainable. The time for preferring an appeal from the main order of the High Court would
expire only on March 5. 1963, that is to say, the appellant had
15 days time more for taking steps for preferring the appeal. Even so 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 time can be computed from the
date of the order refusing to issue the certificate. From the
information supplied by the counsel for the appellant it
appears that the Government decided to file the appeal only
on March 8, 1963, i.e., after the time for filing the appeal had
1964
Stole of U.P.
v.
Col. Sujan Si1197'
and Others
Bubba Rao, J.
1964
State of U. P.
v.
Col. Buja" Singh
and 01/lera
742
SUPREl\IE COURT REPORTS
[1964]
expired. After further correspgndence between the Government of U.P. and the counsel representing it in the Supreme
Court the special leave petition was filed only on April 16.
1963, completely ignoring the reasons given by the High
Court in dismissing the application for certificate of fitness.
On the said facts we do not see any justification for excusing
the long delay of 42 days. So, the appeal is clearly barred by
limitation and should be dismissed. Accorcfmgly the appeal
is 'dismissed .
.Bagkubar Dayal, J.
RAGHUBAR DAYAL, J.-1 agree that the delay in filing the
respondents' appearance and also in lodging the statement of
case be excused.
I am, however, of opinion that the appellant's application
for excming the delay in the presentation of the petition for
special leave to appeal be allowed.
'
It has to be assumed, for the purposes of disposing of
this application, that the order under appeal was not a final
order within the meaning of Iha t expression in art. 134(1) of
the Constitution. The High Court held so and refused the
certificate. The appellant has neither preferred an appeal
against that order nor questioned its correctness in its petition
for special leave. The reason urged for condoning the delay
is that the legal advisers of the appellant were of opinion that
limitation for the presentation of the petition for ~pecial leave
would be governed by the provisions of r. 1(1) of 0. XXI,
Supreme Court Rules, hereinafter called the rules, and that
in accordance with those provisions the period of limitation
would be 60 days from the date of refusal of the certificate
by the High Court. If that rule applied, the petition for special
leave would be in time. The certificate was refused on
February 18, 1963, and the special leave petition was filed
on April 16. The question then is whether the appellant can
• take advantage of the opinion of its legal advisers, assuming
that this opinion was erroneous. I am of opinion that it
should be given that advantage, as the error, if any, cannot
be said to be of such a character which a legal adviser could
not have possibly given.
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 Art. 134 would
be maintainable as an application against an order which is
held by the High Court to be a 'judgment, final order or sentence in a criminal proceeding'. It is true that an application
under art. 134 is contemplated to be an application .against
the judgment, final order or sentence in a criminal proceeding,
and that refusal of a certificate under art. 134, for purposes
of rule I( D of O.XXI. refers to the refusal of an application
-·
7 S.C.R.
SUPREME COURT REPORTS
743
for certificate against the judgment, final order or sentence in
1964
a crimmai proceeding. But this does not necessarily mean that
Stal• of u. P.
the rule will not be applicable in cases of refusal of a certifi·
v.
cate when one applied for it on the ground that the order Col. Sujan Singh
.....,
ancZ Othera
sought to be appealed against amounted to a judgment, final
order or sentence while the High Court came to a differentRaghubar Dayal, J.
opinion. The rule does not specifically state that the date of the
refusal of the certificate would be taken to be the starting
point of limitation only when the High Court refuses certi·
jicate on the ground that it was not a fit case for appeal to
the Supreme Court. If it were so, the rule would have been
limite:I to those cases.
Further, there is indication in sub-r. (2) itself that such
was not contemplated by sub-r. (!) of r. 1. Sub-rule (2) of r. 1
requires the petitioner, in case he desires limitation to be
counted from the date of refusal of the certificate, to mention
the grounds for the refusal of the certificate and, in particular,
whether the application for certificate was rejected as being
out of time.
An application presented after the expiry of
limitation is not maintainable till the Court allows the application for the condonation of delay. There must be a reason
for providing, in sub-r. (2), that the fact of the refusal of the
certificate on ground of limitation mmt be expressed. The
reason is that proviso (iii) to sub-r. (!) of r. 1 provides that
when an application for a certificate is dismissed on the ground
of its being out of time. limitation for the petition for special
leave to appeal will not be counted from the date of the dismissal of the application. There is no corresponding provision
with respect to the limitation being not counted from the date
of refusal, if the refusal be on the ground that the order
sought to be appealed against did not amount to a 'judgment,
final .order or sentence' in a criminal proceedings.
In view of these considerations, the advice of the appellant's coumel, even if it be erroneous, should not go against
the appellant to the extent that the delay in filing of the special leave petition be not condoned. I do not think that the
omission to state the ground of refusal in the petition for
special leave was deliberate in order to keep back from the
Court that the application had been presented after the expiry
of the period of limitation.
It would not be irrelevant to consider the nature of the
point sought to be urged in the appeal. The question is whether
the High Court was right in considering the order of the trial
Court rejecting the claim of privilege raised by the Union
Government in accordance with s. 123 of the Evidence Act
with respect to the production of certain documents summoned, on the ground that the disclosure would not be in public
744
SUPREME COURT REPORTS
[1964}
1964
interest. If the view of the Courts below is wrong, the result
Bleile of u.P.
of refusing to condone the delay would be that public interest
v.
will suffer and that consideration should, in my opinion, outOol. Sujan Singh weigh the lapse on the part of the appellant in not filing the
and Others
petition for special leave to appeal within time and that too, in
llaghubar Dayal, J. view of the wrong advice or opinion given by its legal advisers.
I would
therefore allow ·the application and condone
the appellant's delay in
presentation of the petition for
special leave.
ORDER
In accordance with the opinion of the majority, the delay
in filing the special leave petition is not condoned. The
appeal is barred by limitation and is dismissed.
Appeal dismissed.
·-