Madhya Pradesh High Court
Omprakash Vishwapremi vs Speical Police Establishment Lokayukt on 13 December, 2018
Equivalent citations: AIRONLINE 2018 MP 1402
1
THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Cr. Appeal No.7049 of 2018
(Omprakash Vishwapremi vs. Special Police Establishment)
Indore, dated : 13.12.2018
Shri Santosh Panoriya, learned counsel for the appellant.
Shri Vaibhav Jain, learned counsel for the respondent.
They are heard.
JUDGEMENT
The appellant - Ompraksh Vishwapremi has preferred this criminal appeal under Section 17 of the Madhya Pradesh Vishesh Nyayalaya Adhiniyam, 2011 (hereinafter for brevity will be referred as "the Act of 2011") against the order dated 28.08.2018, passed by the learned Special Judge (Authorized Officer), Indore in Special Case No.04/2016, in which while considering the application filed by the Special Public Prosecutor under Rule 10(1)(2)(3) of the M. P. Special Court Rules, 2012 (hereinafter for brevity will be referred as "the Rules of 2012), wherein the right to furnish the reply by the appellant has been rejected considering to be time barred.
2. Brief facts of the case are that the appellant was posted as Patwari at Tehsil Lalpura, District Ujjain on 16.09.2011. On that day, a raid was conducted at the house of the appellant, which is situated at 20, Baghpura, Sanwer Road, Ujjain and offence under Sections 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 was registered against him and after the investigation, charge-sheet under the same section was submitted before the First Additional Sessions Judge, Ujjain. Thereafter, on 02.08.2014, proceedings under the provisions of 2 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. Appeal No.7049 of 2018 (Omprakash Vishwapremi vs. Special Police Establishment) the Rules of 2012 was initiated, consequent to which a declaration was made under Rule 6 and simultaneously, an application under Section 13(1) of the M. P. Special Courts Act, 2011 was submitted by the prosecution agency for confiscation of the dis-proportionate assets before the Special Court constituted under the M. P. Special Courts Act, 2011 presided over by the Authorized Officer. This application under Section 13(1) of the Act of 2011 was submitted on 26.07.2016, but the reply was submitted by the appellant only on 14.08.2018.
3. The appellant submits that the reason filed for the delay was bonafide, which was that he had not been provided with the CD of the search conducted during raid and therefore, had to file an application under Section 91 of the Cr.P.C. Simultaneously, an application for correction in the check period was also filed. However, bonafides of the appellant were not considered by the Courts below and he was denied the right of submitting his reply by the impugned order, which is perverse and contrary to law. It is prayed that the reply of the appellant may be taken on record so that the appellant may be able to submit his defence.
4. Shri Vaibhav Jain, learned counsel for the respondent has not submitted any written reply to the appeal but has made oral submissions.
Considered rival contentions.
5. It is admitted by the appellant that the application under Section 13(1) of the M. P. Special Court Rules was filed on 26.07.2016, but the reply was submitted only on 14.08.2018. As 3 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. Appeal No.7049 of 2018 (Omprakash Vishwapremi vs. Special Police Establishment) per the learned counsel for the appellant, there were bonafide reasons for the delay because certain pertinent applications were required to be filed.
6. Per contra, learned counsel for the respondent has submitted that Rule 10, specifically prescribes limitation period of 30 days for submitting statement of defence, extendable upto 15 days {See Rule 10(3)} and when the Rule itself provides for 15 days relaxation period (thus providing 45 days in all), no further relaxation can be given seeking recourse under Section 5 of the Limitation Act.
7. Learned counsel for the respondent has substantiated his argument with the help of pronouncement of the Co-ordinate Bench of this Court in the case of Narayandas (deceased) through LRs. Smt. Radhadevi & others vs. Gopaldas S/o Dulichand reported in 2016 (3) MPLJ 466. Para-13 of this citation is of special relevance, wherein reference to the Apex Court's judgement in the case Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department & others reported in 2008 (7) SCC 169 has been made. In this case, it was held that whether the Arbitration and Conciliation Act, 1996 provided for limitation period as also the further period which can be extended on sufficient cause being shown, provisions of Section 5 of the Limitation Act would not be applicable. Similarly, in the case of Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur & others reported in 2008 (3) SCC 70, it was held that Section 35(1) of 4 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. Appeal No.7049 of 2018 (Omprakash Vishwapremi vs. Special Police Establishment) the Central Excise Act, 1944 provided for entertaining the appeal by condoning the delay only utpo 30 days after the expiry of 60 days, there shall be complete exclusion of Section 5 of the Limitation Act. Again in the case of Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission & others reported in 2010 (5) SCC 23, the Apex Court has held that under the Electricity Act, 2003, an appeal against the order of the Tribunal could be filed within 60 days extendable further upto 60 days and if it was satisfied that there was sufficient cause for not filing the appeal within the initial 60 days and in such case, provisions of Section 5 of the Limitation Act will not be attracted. Thus, it is clear from the judgements mentioned above that if a special statute or provision provides for limitation period and further extendable period, then the provisions of Section 5 of the Limitation Act will not be applicable.
8. These citations are straight-away applicable in the case in hand. The appellant was authorized to file his reply within 45 days from the date of the impugned order. However, reply was submitted much belatedly on 14.08.2018 and thus, delay was not condonable even if there were some bonafide reasons for not furnishing the reply on time.
9. Consequently, the impugned order denying the opportunity to the appellant to furnish reply is valid and lawful. The appellant shall not have a liberty to furnish the reply for consideration in respect of the application filed by the Special 5 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. Appeal No.7049 of 2018 (Omprakash Vishwapremi vs. Special Police Establishment) Public Prosecutor. By the impugned order, Special Judge (Authorized Officer) has posted the case for final arguments as it is not apparent as to whether the application filed under Rule 10 (1)(2)(3) of the Special Court Rules has so far been disposed of or not. This order, thus only seeks to decide the proprietary of the impugned order so far as it relates to denying the opportunity to the appellant to furnish his reply on the ground that the reply being time barred. The impugned order is thus proper and there is no reason to interfere with the same. After considering this appeal on the above limited issue, this criminal appeal is disposed of, as dismissed.
(Shailendra Shukla) Judge gp Digitally signed by Geeta Pramod Date: 2018.12.18 12:14:58 +05'30'