TMI Blog2021 (12) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra [ 1973 (12) TMI 92 - SUPREME COURT] and followed in Gopal Sardar v/s. Karuna Sardar [ 2004 (3) TMI 743 - SUPREME COURT] , as also in other subsequent judgments, is perused and appreciated, this Court finds that the test to be applied for examining as to whether a special law expressly excludes applicability of Sections 4 to 24 of the Limitation Act, is not that such specific provisions must necessarily be excluded by referring to them, but the test to be applied would be the one specified by the Bench of three Hon ble Judges of the Supreme Court in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra(supra) i.e. by analyzing the scheme of the special law, the nature of remedy provided therein as the legislature intended it to be a complete Code by itself, which alone should govern the several matters provided by it. A very significant and important question regarding power and jurisdiction of this Court arises in the present matter. Considering the views expressed in the abovementioned judgments of the Hon ble Supreme Court governing the field, we see no option but to resort to Rule 8 of Chapter I of the Bombay High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 378(4) and (5) of the Cr.P.C. pertaining to applications for special leave to appeal by complainants, nature of the remedy provided therein, intending it to be a complete Code in itself, it can be said that Sections 4 to 24 of the Limitation Act, 1963, are excluded in their applicability to such applications for special leave to appeal? 7) In the light of the above, whether the application for condonation of delay filed by the applicant - Department is maintainable? - CRIMINAL MISC. APPLICATION NO.253 OF 2019 IN STAMP MAIN NUMBER NO.1342 OF 2019 (FILING) - - - Dated:- 16-11-2021 - MANISH PITALE, J. Ms. A. Razaq, Advocate for the Applicant. Mr. Vikram Nankarni, Senior Advocate with Mr. D. Dhond, Mr. R. Badiani and Mr. S. Nasnolkar, Advocates for the respondent. ORDER: 1. In this application seeking condonation of delay in filing an application for grant of special leave to appeal from an order of acquittal under Section 378 (5) of the Code of Criminal Procedure (Cr.P.C.), the respondent has raised an objection regarding the very maintainability of the application. According to the applicant, the objection is without any substance and that theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in below. 6. Ms. Amira Razaq, learned Counsel appearing for the applicant - Department relied upon judgment of the Hon ble Supreme Court in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi [AIR 1976 SC 105] to contend that pari materia provision in the earlier Cr.P.C. came up for consideration on this very question pertaining to power in this Court to condone delay by applicability of Section 5 of Limitation Act, 1963. By referring to the aforesaid judgment in detail, particularly paragraph 7 thereof, the learned Counsel submitted that since the language of Section 378 (5) did not specifically exclude applicability of Section 5 of the Limitation Act, this Court certainly has power to entertain the present application for condonation of delay. The learned Counsel further relied upon three judgments passed by learned single judges of this Court following the aforesaid position of law laid down by the Hon ble Supreme Court in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra). These were judgments in the cases of Sagunabai Lahanu Shende v/s. Patru Goma Lengure and others [1979 MhL.J. 8], Ramkrishna Jairam Damdar v/s. Savita w/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Hon ble Supreme Court had clearly held the judgment in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra) as per incuriam and hence not binding. 9. The learned Senior Counsel then contended that the Hon ble Supreme Court had preferred the test laid down in the judgment of three Hon ble Judges in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra (supra) despite noticing the view taken by two Hon ble Judges in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra), in the cases of Union of India v/s. Popular Construction [(2001)8 SCC 470], P. Radhabai v/s. P. Ashok Kumar [(2019) 13 SCC 445], Commissioner of Customs and Central EXcise v/s. Hongo India Pvt. Ltd. and Another [(2009) 5 SCC 791], Patel Bros v/s. State of Assam [(2017) 2 SCC 350], and State of Madhya Pradesh v/s. Anshuman Shukla [(2014) 10 SCC 814]. 10. The learned Senior Counsel appearing for the respondent submitted that judgments of the learned Single Judges of this Court in the cases of Sagunabai Lahanu Shende v/s. Patru Goma Lengure and others and Ramkrishna Jairam Damdar v/s. Savita w/o. Ramkrishan Damdar and another (supra) were based on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and that no other view can be entertained as the law has been settled with regard to pari materia provision in the earlier version of the Cr.P.C. 14. In order to examine the aforesaid contention raised on behalf of the applicant, it is necessary to analyze the aforesaid judgments of the Hon ble Supreme Court and this Court. A perusal of judgment of the two Hon ble Judges of the Supreme Court in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra) would show that in the said judgment specific reference is made to earlier judgment of the Hon ble Supreme Court in the case of Kaushalya Rani v/s. Gopal Singh [ AIR 1964 SC 260]. In the said judgment, the Hon ble Supreme Court was concerned with Section 417 of the Cr.P.C. of 1898, which was in force. The said provision also provided for appeal against acquittal, but in the case of Kaushalya Rani v/s. Gopal Singh (supra), the Hon ble Supreme Court was concerned with analysis of the question of limitation in the context of the Limitation Act, 1908. By the time, the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra) came up for consideration before the Supreme Court, the Limitation A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may, subject to the provisions of sub- section (3), also direct the Public Prosecturo to present an appeal - (a) to the Court of Sessions, from an order of acquittal passed by a Magistrate in respect of a cognizable and nonbailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision]. (3) [No appeal to the High Court]under sub- section (1) or subsection (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub- section (4) for the grant of special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out by this Court in Kaushalya Rani s case AIR 1964 SC 260=(1964 (1) Cri LJ 152) the time limit of sixty days laid down in sub-section (4) of Section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of sub- s. (4) of s. 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of s. 5 in order that the application may be entertained despite such bar. Mere provision of period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of s. 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra), it cannot be said that Section 5 of the Limitation Act did not apply to the application for special leave to appeal filed under Section 378(4) of the Cr.P.C. 22. Since the learned Single Judge of this Court in the case of M/s. Sharmaji Textiles v/s. M/s. Sandeep Traders and others (supra) has categorically held in the aforesaid manner, the submissions made on behalf of the respondent by relying upon judgments of the Hon ble Supreme Court in the cases of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra and Gopal Sardar v/s. Karuna Sardar(supra) need to be examined in detail. 23. It is an undisputed position that although the judgment of three Hon ble Judges of the Supreme Court in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra (supra) was rendered prior to the judgment of two Hon ble Judges of the Supreme Court in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra), there is no reference to the aforesaid earlier larger Bench judgment and it is clear that the judgment in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra) was rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Act. In our view, even in a case where the special law does not exclude the provisions of ss. 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. The provisions of s. 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in s. 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of ss. 81, 82 or 117. It will be seen that s. 81 is not the only section mentioned in s. 86, and if the Limitation Act where to apply to an election petition under s. 81 it should equally apply to ss. 82 and 117 because under s. 86 the High Court cannot say that by an application of s. 5 of the Limitation Act, s. 81 is complied with while no such benefit is available in dismissing an application for non-compliance with the provisions of ss. 82 and 117 of the Act, or alternatively if the provisions of the Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Delhi (supra) appears to be per incuriam. 26. In fact, this aspect did come up for consideration before the Hon ble Supreme Court in the case of Gopal Sardar v/s. Karuna Sardar(supra). In this case also, a Bench of two Hon ble Judges of the Supreme Court agreed with the position of law laid down by the aforesaid earlier judgment of the Bench of three Hon ble Judges in the case of Hukumdev Narain Yadav v/s. Lalit Narain Mishra(supra), in the context of special or local law i.e. West Bengal Land Reforms Act, 1955. In the process of analyzing the true interpretation and effect of Section 29(2) of the Limitation Act, the Hon ble Supreme Court in the case of Gopal Sardar v/s. Karuna Sardar(supra) held as follows: 13. Section 8 of the Act prescribes definite period of limitation of three months or four months, as the case may be, for initiating proceedings for enforcement of right of preemption by different categories of people with no provision made for extension or application of Section 5 of the Limitation Act. When in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the special law, benefit of Section 5 of Limitation Act could be availed. In that case, special leave petitions were filed in this Court against the condonation of delay to the application for the grant of special leave under Section 417 of Cr.P.C. against acquittal of the petitioners by the trial court in spite of the mandatory period of limitation provided in sub-section (4) of Section 417. The question that arose in that case was whether the decision of this Court in Kaushalya Rani vs. Gopal Singh [1964 (4) SCR 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 provision 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 peremptory or imperative language is not suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot expressly excluded under Section 29(2) thereof, when applying the same to an application for special leave to appeal under Section 378(4) of the Cr.P.C., they have treated Section 378(4) and (5) of the Cr.P.C. as a special law, being a self-contained Code, particularly providing for an appeal against acquittal to be filed on behalf of the original complainant. Therefore, there is no controversy before this Court about the fact that an application for special leave to appeal on behalf of the applicant - Department as the complainant in the present case is governed by special law found in Section 378(4) and (5) of the Cr.P.C. In the case where the complainant is a public servant, as in the present case, the period of limitation is six months and in every other case it is 60 days under Section 378(5) of the Cr.P.C. 30. In this context when the law laid down by the Bench of three Hon ble Judges in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra(supra) and followed in Gopal Sardar v/s. Karuna Sardar (supra), as also in other subsequent judgments, is perused and appreciated, this Court finds that the test to be applied for examining as to whether a special law expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 378(4) of the Cr.P.C., a number of individual complainants would suffer, because the period of limitation prescribed for them is only sixty days and it would be very harsh to hold that this Court would not have the power to condone delay in genuine and deserving cases. 33. Thus, viewed from any angle, a very significant and important question regarding power and jurisdiction of this Court arises in the present matter. Considering the views expressed in the abovementioned judgments of the Hon ble Supreme Court governing the field, I see no option but to resort to Rule 8 of Chapter I of the Bombay High Court Appellate Side Rules, 1960, to make a reference to two or more judges of this Court, on questions framed herein below. 34. In view of the above, the papers of this case be placed before the Hon ble the Chief Justice for the matter to be heard more advantageously by a bench of two or more judges, on the following questions: 1) Whether Sections 4 to 24 of the Limitation Act, 1963, stand expressly excluded under Section 378(4) and (5) of the Cr.P.C. as special law for appeals against acquittal to be filed by the complainant, by operation of Section 29(2) of the Li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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