Kerala High Court
Pharma Kuries (P) Ltd. vs Soju on 30 August, 2006
Equivalent citations: III(2007)BC262, 2006(4)KLT326
Author: R. Basant
Bench: R. Basant
ORDER R. Basant, J.
1. Is Section 5 of the Limitation Act applicable at all to a claim petition under Section 84(1) of the Code of Criminal Procedure? This is the question of law raised in this revision petition directed against an order passed by the learned Magistrate dismissing a claim petition filed by the petitioner under Section 84(1) of the Code of Criminal Procedure.
2. The learned Magistrate dismissed the application on two grounds, namely the application has not been filed within the period of 6 months as stipulated in Section 84(1) Cr. PC. and that the right of the petitioner over the property has not been satisfactorily established.
3. To the skeletal facts first. A complaint was filed by the 2nd respondent herein against the 1st respondent alleging commission of an offence punishable under Section 138 of the N.I. Act. The complaint was filed in 1997. Long later after completing all proceedings, the matter came up for judgment on 6.3.2000. From that date, the accused started absconding. He is not available to be apprehended even now. Steps to procure the presence of the 1st respondent were taken by the learned Magistrate and an item of property over which he has rights was attached by the Court as per order passed under Section 83 of the Cr.P.C. on 3.12.02.
4. The attachment was in force and continued from 3.12.2002. The petitioner herein, a private limited company came before Court on 18.11.04 with a claim petition under Section 84(1) Cr.P.C. It was contended that the petitioner came to know of the order of attachment effected on 3.12.02, only on 10.11.04 and thereafter within 8 days, the claim petition under Section 84(1) Cr.P.C. was filed. The petitioner contended that long prior to the date on which the attachment was effected, a registered.sale deed on which the attachment was effected, a registered sale deed dated 12.4.02 was executed by the 1st respondent and his brothers assigning their interest in the property to the petitioner herein. It was in these circumstances contended that on the date of the attachment (3.12.02) or after 12.4.02 (the date of the sale deed) the 1st respondent or his brothers had no right over the property attached.
5. The application was opposed by the complainant/2nd respondent. He raised the plea of limitation. He further contended that it was a collusive document executed between the absconding 1st respondent and the petitioner and that the said document cannot be said to have conferred any rights on the petitioner herein.
6. The Court below did not collect any oral evidence. Exts. C1 to C3 were marked before the Court below.
7. The learned Magistrate had proceeded to consider whether the belated application which has not been filed within a period of 6 months from the date of attachment is barred by limitation. That point was answered against the petitioner. Even though it was found to be barred by limitation, the court below appears to have tentatively considered the question whether the petitioner has rights over the property attached. Even though the title deed was produced and marked and the same was executed long prior to attachment, the court below appears to have taken the view that the document cannot be held to confer any rights on the petitioner in as much as mutation etc. in pursuance of Ext.C1 were not shown to have been effected promptly and contemporaneously with Ext.C1.
8. The learned Counsel for the petitioner, the learned Counsel for the 2nd respondent as also the learned Public Prosecutor have been heard. The questions that arise for consideration are
i) Whether the delay in filing the petition under Section 84(1) Cr.P.C. is liable to be condoned by invoking the powers under Section 5 of the Limitation Act.
ii) Whether the court below was justified in coming to the conclusion, in spite of production of Ext. C1, that the petitioner's right and title in the property attached have not been established.
9. The first and the crucial question is whether Section 5 of the Limitation Act is applicable to a petition under Section 84(1) of the Cr.P.C. reads as follows:
If any claim is preferred to, or objection made to the attachment of, any property attached under Section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under Section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part.
(emphais supplied)
10. The learned Counsel for the petitioner contends that in the light of the amended Section 29(2) of the Limitation Act, 1963, Sections 4 to 24 of that Act must be held to be applicable to an application under Section 84(1) Cr.P.C. and consequently the jurisdiction under Section 5 of the Limitation Act must be held to be available to enable the Criminal Court to entertain a belated application under Section 84(1) Cr.P.C.
11. Section 29(2) of the Limitation Act reads as follows:
Where any special or local law prescribes for any suit, appeal or application a period or limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
(Emphasis supplied)
12. There can be no doubt that the provisions of the Limitation Act are applicable to the criminal courts. To attach the application of Section 29(2), it will first have to be ascertained whether there is any period of limitation prescribed under the Limitation Act for such an application. Article 137 of the Limitation Act clearly shows that a period of limitation of 3 years from the date on which the right to apply accrues is prescribed for all residuary applications for which no period of limitation is provided elsewhere in 3rd division of the schedule to the Limitation Act.
13. The next question is whether the said period of limitation stands modified by the stipulation in Section 84(1) Cr.P.C. extracted above. It is evident that under Section 84(1) Cr.P.C., a time limit of 6 months prescribed for such an application. It is thus absolutely evident that a different period of limitation than what is prescribed under Article 137 of the Limitation Act is stipulated for a claim petition under Section 84(1) Cr.P.C. Article 137 speaks of applications and an application by definition in Section 2(a) of the Limitation Act includes a petition.
14. It therefore follows that a different period of limitation than what would have been applicable under Article 137 is stipulated as per Section 84(1) Cr.P.C. There is no contention that the time stipulation in Section 84(1) Cr.P.C. is not a period of limitation or is only a condition precedent. Such a contention cannot obviously be sustained and has rightly not been raised before me.
15. It follows from the terms of Section 29(2) of the Limitation Act read with Section 84(1) Cr.P.C. that Sections 4 to 24 of the Limitation Act and consequently Section 5 must be applicable to a claim petition filed under Section 84(1) Cr.P.C.
16. The learned Counsel for the petitioner submits that this must be so, unless, the provisions Sections 4 to 24 of the Limitation Act are excluded expressly by the provisions of the Cr.P.C. The learned Counsel for the 2nd respondent on the other hand contends that 'express exclusion' does not necessarily mean that the relevant stipulation in the special law must specifically declare that such period is being fixed notwithstanding the provisions of the Limitation Act or that such stipulation in the special law must declare in terms that the provisions of Sections 4 to 24 of the Limitation Act shall not apply.
17. Whatever be the controversy that was alive earlier, I am in agreement with the learned Counsel for the 2nd respondent that the said dispute has been settled finally and completely by the pronouncement of a 3-Judge Bench of the Supreme Court in Hukumdev Narain Yadav v. L.N. Mushra . The position has been reiterated in the subsequent decisions in Ittikhar Ahmed v. Syed. Meharban Ali as also in Gopal Sardar v. Karuna Sardar .
18. The Supreme Court in those cases clearly held that the expression "expressly excluded" cannot justify the search for and insistence on a specific stipulation in the special law to exclude the application of Sections 4 to 24 of the Limitation Act or a declaration that the stipulation under the special law will override the stipulation in the Limitation Act. The crucial question is whether the provisions of the special or local law provide a complete code, which by necessary intentment, scheme, object and purpose excludes the provisions of the Limitation Act while applying the special stipulations in the local or special law. There can be no dispute on this proposition and hence it is unnecessary to advert to the details of the controversy in law.
19. The learned Counsel for the petitioner also accepts the proposition, but he contends that so far as the stipulations in a special law like the Cr.P.C. is concerned, the Supreme Court has already held unambiguously in Mangu Ram v. Municipal Corporation of Delhi , that Section 29(2) shall apply and Sections 4 to 24 would be applicable when special stipulations regarding limitation are made as per the Code of Criminal Procedure.
20. The learned Counsel for the 2nd respondent then contends that the provisions of Sections 83, 84, 85 & 86 in Chapter VI C of the Code form a complete code in themselves regarding attachment of property of an absconder and the procedures to be followed for challenging attachment or claiming rights over the property attached.
21. I have carefully gone through the stipulations in Chapter VI C particularly Sections 83 to 86. It is true that exhaustive stipulations are made about the manner in which attachment is to be effected and claims by the accused person as also others claiming rights over the property attached are to be considered. But the mere fact that exhaustive provisions are made cannot necessarily or by implication lead the court to the conclusion that the application of Sections 4 to 24 of the Limitation Act are excluded. The question is not whether specific words are used in Chapter VI C to exclude the application of Sections 4 to 24 of the Limitation Act. The question is whether by necessary intentment - considering the purpose, object, scheme and purport of the stipulations in Chapter VI C application of the provisions of Sections 4 to 24 of the Limitation Act has been excluded.
22. Having carefully gone through all the stipulations, I am satisfied that even though special procedure is stipulated as to how such claims are to be considered and special periods of limitations is prescribed under Sections 84 (1), 84(4) & 85(3), there is nothing which can justify a conclusion, notwithstanding the insistence on "express exclusion" under Section 29(2) of the Limitation Act that by necessary intentment, even in the absence of an express stipulation for exclusion, Sections 4 to 24 must be held to be not applicable. The learned Counsel for the 2nd respondent has placed reliance on the decisions in Panchu Gopal Mallik and Anr. v. The State and Anr. 1955 Crl.L.J. 1343 to contend that identical provisions in the Cr.P.C. prior to its amendment in 1973 were held by the Calcutta High Court to constitute a complete code regarding claims against attachment by the offender and other claimants.
23. The said decision does not at all consider the play of Section 29(2) which statutory provision was not in force at the relevant time. The precise question as to whether provisions in the Code prior to amendment would indicate express exclusion of Sections 4 to 24 did not come up for consideration before the Calcutta High Court in the said decision even impliedly or incidentally. I am in these circumstances satisfied that the language employed, scheme, purpose and object of the stipulations in Sections 83 to 86 do not at all justify a conclusion that the application of Sections 4 to 24 as mandated under Section 29(2) is not permissible or possible while considering the claims against attachment by the indictee as also those claiming rights over the property. The decisions of the Supreme Court in Hukumdev Narain Yadav v. L.N. Mishra, Ahmed v. Syed. Meharban Ali and Gopal Sardar v. Karuna Sardar, where dealing with provisions in special enactments like the Representation of Peoples Act, Land Reforms Act etc., where the scheme, purpose and object clearly indicated that Sections 4 to 24 were not intended to apply. That is not the case with the provisions of Chapter VI C of the Code.
24. That leads us to the next question whether in the absence of a specific application under Section 5, the court below was obligated to or could/should have condoned the delay in filing the claim petition. This Court in Nadubhagom N.S.S. Karayogam v. Gopalan Nair 1979 KLT 166 (Division Bench) and Arya R. & A. Co. v. State of Kerala 1986 KLT SN 3 C. No. 4 has clearly held that it is not necessary to insist on a formal application. But I must alertly note that the prayer is not for exclusion of any period but for extension of the period of limitation under Section 5. Where extension and not exclusion is claimed, it will certainly be for the person claiming such exclusion to strictly establish all relevant facts before the court. The rules of natural justice further insist and mandate that the adversary must also be given opportunity to take note of the specific contentions on the basis of which extension of the period of limitation under Section 5 is claimed. He must also be given opportunity to controvert the assertions, substantive his contentions and to prove the contra. In these circumstances, except in exceptionable cases where factual disputes are not there or factual disputes can be resolved without any detailed enquiry, it will only be reasonable to insist on a proper application under Section 5. In the facts and circumstances of this case, even though the crucial assertion is made that the petitioner did not have knowledge of the attachment, I am satisfied that the petitioner must be directed to file a proper application under Section 5 narrating all relevant circumstances so that the court can consider whether the delay is liable to be condoned under Section 5.
25. I now come to the latter finding by the court below that the right, title and interest of the petitioner has not been established. This finding, I note is based on the short fact that the petitioner had not placed evidence to show that mutation had been effected and revenue has been paid by him, consequent to the transfer of title. I am of opinion that the learned Magistrate must be directed to consider such contentions also afresh after giving all the interested parties an opportunity to place relevant data before the court.
26. In the result:
a) This revision petition is allowed;
b) The impugned order is set aside.
c) The learned Magistrate is directed to consider the application afresh after giving the petitioner and opportunity to file a proper application under Section 5 of the Limitation Act and to file additional statements if necessary. Needless to say, the 2nd respondent or anyone interested in resisting the petition shall also be permitted to raise their contentions if they have right under law to oppose the application.
27. The parties shall appear before the learned Magistrate on 25.9.06 to continue the proceedings. The learned Magistrate shall make every endeavour to dispose of the claim petition as expeditiously as possible at any rate, within a period of 45 days from the date of such appearance.