IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 852 of 2024 Decided on: 03.01.2025 ____________________________________________________ Rakesh Kumar ……….. petitioner Versus State of H.P. ……….respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Ms. Pratiksha Chandel, Advocate. For the respondent : Mr. Diwakar Dev Sharma, Advocate. ____________________________________________________ Bipin C. Negi, Judge (oral) Heard counsel for the petitioner. Perused the petition, documents and impugned orders appended thereto. 2. Admittedly in the case at hand, the petitioner had stood surety for one Saravjeet. On account of non-appearance of the said Saravjeet (accused) before the trial Court, notice was issued under Section 446 Cr.PC to the present petitioner. 3. The petitioner was served for 27.09.2023. The petitioner failed to put in appearance before the trial Court on the said date. As a consequence whereof, the petitioner was proceeded against ex parte. However, on 07.10.2023, the petitioner had put in appearance before the trial Court. The 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 petitioner was granted time for filing reply to the notice under Section 446 Cr.PC. 4. The petitioner was again present on 01.11.2023 and further time to file reply as last opportunity was afforded to the petitioner. The matter was thereafter ordered to be listed on 05.12.2023. Despite being aware of the date i.e. 05.12.2023, the petitioner did not put in appearance on the said date. 5. In the aforesaid backdrop, the learned trial Court was constrained to pass the impugned order dated 05.12.2023, whereby the petitioner was directed to pay penalty amount of Rs.30,000/-. The aforesaid impugned order was challenged by way of an appeal before the Additional District Judge, CBI Court Shimla, H.P. In the filing of the appeal, there was a delay of 190 days. The first appellate court did not condone the delay in filing the appeal against the impugned order dated 05.12.2023. 6. The explanation/sufficient cause shown for condoning the delay in filing the appeal being that the petitioner became aware of the impugned dated 05.12.2023, when the officials of the office of District Collector telephonically contacted him informing the petitioner of initiation of recovery in furtherance thereof on 13.5.2024. 7. Condonation of delay is a discretionary power available to courts. Exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree 3 of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned. 8. The Court must distinguish between an ‘explanation’ and ‘excuse’. In this respect, it would be appropriate to refer a judgment reported as Sheo Raj Singh (deceased) through Legal Representatives & Others v. Union of India and Another, 2023 (10) SCC 531. The relevant extract of the same are as under: “…...Of course, the courts must distinguish between an ‘explanation’ and an ‘excuse’. An ‘explanation’ is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be taken to distinguish an ‘explanation’ from an ‘excuse’. Although people tend to see ‘explanation’ and ‘excuse’ as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real. 32. An ‘excuse’ is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an ‘excuse’ would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure hat a meritorious claim does not reach the higher courts for adjudication.” 9. Before the appeal court regular and periodical dates of hearing are fixed. The process is called ‘adjournment of 4 hearing. A party or his counsel is expected to appear on those dates and keep track of the case. If a litigant does not keep track of his case than ‘want of diligence’ or ‘inaction’ can be attributed to such a litigant. With respect to the aspect of ‘want of diligence’ or inaction attributed to the applicant in the case at hand, it would be appropriate to refer to Perumon Bhagvathy Devaswom v. Bhargavi Amma, (2008) 8 SCC 321 : “14. Let us next also refer to some of the special factors which have a bearing on what constitutes sufficient cause, with reference to delay in applications for setting aside the abatement and bringing the legal representatives on record. 15. The first is whether the appeal is pending in a court where regular and periodical dates of hearing are fixed. There is a significant difference between an appeal pending in a subordinate court and an appeal pending in a High Court. In lower courts, dates of hearing are periodically fixed and a party or his counsel is expected to appear on those dates and keep track of the case. The process is known as “adjournment of hearing” In what cases can Want of ‘diligence’ or ‘inaction’ be attributed to an applicant it would be appropriate to refer to Katari Suryanarayana v. Koppisetti Subba Rao, (2009) 11 SCC 183 : “Want of ‘diligence’ or ‘inaction’ can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” (emphasis in original) 10. From the above facts and attended circumstances in the case at hand, it is evident that the petitioner was aware of the 5 proceedings under Section 446 Cr.PC. He had put in appearance before the trial Court on 07.10.2023, 1.11.2023. He had sought time for filing reply. Despite availing of opportunities, no reply was filed. The petitioner was aware on 1.11.2023 that the matter would be listed on the next date which as per the petitioner was wrongly recorded. 11. Before the appellate Court, regular and periodical dates of hearing are fixed. A litigant is expected to keep track of his case. If the same is not done, then “want of diligence” “inaction” can be attributed to a litigant. In the case at hand, the petitioner after 1.11.2023, did not keep track of his case despite being aware of its pendency. The conduct of the petitioner smacks of ‘inaction’, ‘want of diligence’ on his part. 12. The sufficient cause stated by the petitioner in the case at hand cannot be termed to be an “explanation” in fact what is being offered is an excuse, the same cannot be accepted. For the foregoing reasons, I see no reason to interfere in the well reasoned judgment of the appellate Court, accordingly, the petition is dismissed, so also the pending applications, if any. (Bipin Chander Negi) Judge January 03, 2025 tarun