TMI Blog2024 (3) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... artment is maintainable. The questions framed in the learned Single Judge's order [ 2021 (12) TMI 766 - BOMBAY HIGH COURT] stand answered by the decision of the Hon'ble Supreme Court in Mohd. Abaad Ali's case[ supra] and there is no point in us repeating those answers. - M.S. SONAK AND VALMIKI SA MENEZES, JJ. For the Applicant : Ms Amira Razaq, Advocate. For the Respondent : Mr Vikram Nankani, Senior Advocate with Mr Swapnil Nasnolkar, Advocate. ORDER (PER M. S. SONAK, J.) 1. Heard Ms Amira Razaq for the applicant and Mr Vikram Nankani, Senior Advocate with Mr Swapnil Nasnolkar for the respondent. 2. The applicant applied vide [Stamp Number Main No-1342 of 2019(F)] for a grant of special leave to appeal against the order dated 07.10.2017, dismissing its criminal complaint before the Judicial Magistrate, First Class, Vasco Da Gama in Criminal Case No. AOA/415/INC-TAX/2017/A and acquitting the respondent on 01.04.2019. 3. Since the above application for a grant of special leave to appeal was instituted 480 days beyond the prescribed period of limitation, the applicant filed a Criminal Misc. Application No. 253/2019 seeking condonation of delay. 4. Upon receipt of the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra)? 5) Whether the test laid down in Hukum Dev Narain Yadav v/s. Lalit Narain Mishra (supra) by the Hon ble Supreme Court must be applied to the applications for special leave to appeal filed under Section 378 (4) and (5) of the Cr.P.C. in the context of Section 29(2) of the Limitation Act, 1963? 6) Whether upon applying the test laid down by the Hon'ble Supreme Court in the case of Hukum Dev Narain Yadav v/s. Lalir Narain Mishra (supra) i.e. considering the scheme of the special law under 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? 6. By communication dated 23.11.2021, the Registrar (Judl.-I) informed the Registrar (Judicial), High Court of Bombay at Goa, that the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n instituting an appeal against acquittal under Section 378 of the Code of 1973:- a. The Scheme of Section 378 of the Code of Criminal Procedure, 1973 is a self-contained code and, admittedly, a special law , as laid down in, inter alia, Kaushalya Rani V/s. Gopal Singh AIR 1964 SC 2640. b. That, Mangu Ram (supra) is per incuriam; given the judgement of three learned judges of the Hon'ble Supreme Court in Hukumdev Narain Yadav (supra). c. The 48 th Report of the Law Commission of India dated 25th July 1972; and, d. The relevant entry in the Schedule to the Limitation Act, 1963, i.e. Article 114, inter alia, only sets out the period of limitation in respect of an appeal under Section 378 of the CrPC. The Schedule is, however, bereft of any entry and/or period of limitation in respect of an application to grant special leave to appeal, in terms of Section 378(4) read with Section 378(5) of the CrPC. 11. Accordingly, we have considered rival contentions as initially raised and the contentions now raised by Mr Nankani by filing an additional written synopsis. Upon due consideration, we are satisfied that Mohd. Abaad Ali (supra) considers and answers all the vital arguments raised in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication for leave to appeal against acquittal. The Hon'ble Supreme Court accordingly held that there was no force in the appellant's contentions regarding the non-application of Section 5 of the Limitation Act to an application under Section 378 of the Code. 15. In paragraphs 9 to 12, Mohd. Abaad Ali (supra) considers and rejects the argument based on the alleged conflict between Kaushalya Rani (supra) and Mangu Ram (supra). The Court also considers the arguments based on the Limitation Act of 1908 and the old Code of 1898 upon due consideration of these contentions, which was the main plank of the respondent's case, Mohd. Abaad Ali (supra) holds that the High Court has the power and jurisdiction to condone the delay in seeking leave to appeal against acquittal or entertaining an appeal against acquittal. 16. Mohd. Abaad Ali (supra), by specific reference to the provisions of Section 29(2) of the Limitation Act, 1963, holds that where there is a special or local law prescribed for any suit, appeal or application which is different from the period of limitation prescribed in the first schedule of the Limitation Act, the applicability of the Limitation Act will be only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation was prescribed. 20. The Hon'ble Supreme Court explained that Hukumdev (supra) related to an election matter and Goapl Sardar (supra) dealt with the right to pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955. The Court held that there could be no quarrel with the argument that where a special law prescribes a period of limitation, Section 5 of the Limitation Act would have no application, subject only to the language used in the special statute. The language prescribing the period of limitation is an important factor in such matters. 21. The Court then referred to Sections 81 and 86 of the Representation of Peoples Act, 1951 and held that given these provisions, the High Court had no choice but to dismiss an election petition which was filed beyond the period of 45 days, and there was no scope for condoning delay in an election matter. Similarly, the Court referred to the provisions of Section 8 of the West Bengal Land Reforms Act, 1955 and held that Section 5 of the Limitation Act could not be pressed into service in aid of a belated application made under Section 8 given the language used in Section 8 of the West Bengal Land Reforms Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent herein, no case is made to accept the contention based on the Law Commission report. The precedential authority of the Supreme Court judgment cannot be diluted in this manner. 26. The argument about the entry in Article 114 in the Schedule to the Limitation Act applying only to the institution of an appeal against the acquittal and not to an application to grant special leave to appeal in terms of Section 378(4) read with 378(5) of the Cr.P.C., is an instance of hair-splitting. Such an argument was not initially raised on behalf of the respondent. In any case, Mohd. Abaad Ali (supra) holds that there is no such exclusionary provision under Section 378 of Cr.P.C. or at any other place in the Code based upon which it could be held that the benefit of Section 5 read with Sections 2 and 3 of the Limitation Act, 1963 cannot be availed of in an appeal against acquittal or considering an application for leave to appeal against the acquittal. 27. By raising additional contentions in their written synopsis tendered on 08.03.2024, the respondents are trying to pick holes in the reasoning of the Hon ble Supreme Court in Mohd. Abaad Ali (supra). This is impermissible. A bindin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or lawyers are permitted to argue that something that was correct but was not argued earlier before a higher court and on that ground if the courts below are permitted to take a different view in a matter, possibly the entire law in relation to the precedents and ratio decidendi will have to be re-written and there would be total chaos. Moreover, by not following the law laid down by the Supreme Court, the High Court or the other Courts would also be violating the provisions of Article 141 of the Constitution of India. 31. Similarly, in Bibi Batool Jafer Gulam Hussein V/s. The Principal Judge, City Civil Court, Bombay AIR 1972 Bombay 254, the Division Bench of this Court held that the decision of the Hon'ble Supreme Court in Smt. Somawanti and others V/s. Stare of Punjab and Ors. AIR 1963 SC 151 lays down that the binding effect of the decision does not depend upon whether a particular argument was considered or nor, provided that the argument subsequently advanced was actually decided. 32. Accordingly, for all the above reasons, we dispose of this reference by holding that the application for condonation of delay in seeking special leave to appeal against acquittal filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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