9911796707
TMI Blog2009 (1) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... as "the said Code"). Therefore, by filing present application, the applicant-original complainant has invoked section 5 of the Indian Limitation Act, 1963 (hereinafter referred to as "the said Act of 1963"). 2. The delay is of seventeen days. The explanation for the delay is that the applicant was suffering from heart ailment and blood pressure. It is stated that the applicant is a diabetic patient and is bed ridden and, therefore, the applicant could not approach an advocate for filing the application within limitation. 3. The opposition of the learned counsel appearing for the first and second respondents is on two grounds. The first ground is that in view of the period of limitation provided under sub section 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Code which reads thus :- "378. Appeal in case of acquittal :- (1) ... ... (2) ... ... (3) ... ... (4) ... ... (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal." A submission has been made that in view of the negative language used under sub section 5, considering the provisions of section 29(2) of the said Act of 1963, applicability of section 5 of the said Act of 1963 has been excluded. Insofar as this Court is concerned, the said issue is no longer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r considering the said provisions in paragraph 16 this Court held thus:- "16. On scrutiny of the various authorities on this point it is now well settled that the earlier view taken by the Supreme Court in case of Kaushalya Rani holding that old section 417(4) of Criminal Procedure Code was a 'special law' within the meaning of section 29(2) of the Limitation Act, 1908 and that, accordingly section 5 of the Act would not be invoked in cases applying old section 417(4). But section 29(2) of the Limitation Act, itself has been changed in the Limitation Act 1963, according to which the application of section 5 cannot be excluded unless it is expressly excluded by such special law. Now under section 378(5) of the new Code of Criminal Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alya Rani vs. Gopal Singh [1964(4)-SCC-982], in which it was held that Section 417 Cr.P.C. excluded application of Section 5 of the Limitation Act on a construction of Section 29(2)(b) of the old Limitation Act of 1908 could be applied under the corresponding provisions of the Limitation Act, 1963. The decision of that case turned upon the facts of that case in criminal appeals by comparison of the provision of the old Limitation Act to the provisions of the new Limitation Act. The Division Bench of the Calcutta High Court in Serish Maji (supra), referring to the observation made in Mangu Ram (supra) that "mere provision of a period of limitation in howsoever pre-emption or imperative language is not sufficient to displace the applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Gopal Sardar (supra) the Apex Court has not disturbed the decision in the case of Mangu Ram (supra). The decision in the case of Consolidated Engg. Enterprises v/s. Principal Secretary, Irrigation Department (2008 [6]- JT-22) will not help the respondent-accused as the said decision holds that Section 5 of the said Act of 1963 stands excluded from the applicability to Section 34 of the said Act of 1996 in view of the peculiar provision of sub section 3 of section 34 which prescribes not only the period of limitation but also provides that the period of limitation can be extended only by a period of thirty days. In the present case, from the language of sub section 5 of section 378 of the said Code, it is not possible to infer the exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
