Karnataka High Court
Smt Saroja Narasimhn vs Smt. Vijaya Sharma on 13 April, 2020
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF APRIL, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRL.A. NO.1355/2012
BETWEEN:
SMT. SAROJA NARASIMHAN
W/O NARASIMHAN
... APPELLANT
(BY SRI. S.H. PRASHANTH, ADVOCATE)
AND:
SMT. VIJAYA SHARMA
W/O NAGABUSHAN SHARMA
... RESPONDENT
(BY SRI. S. PRAHLAD, ADVOCATE FOR
M/S RAO PRASAD AND COMPANY)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
387(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
3.9.2012 PASSED BY THE XIII ADDITIONAL C.M.M.,
BENGALURU IN C.C.NO.16879/2009 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
NEGOTIABLE INSTRUMENTS ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 13.12.2019 COMING ON FOR
'PRONOUNCEMENT OF ORDER ON IA NO.1/2013 AND
IA NO.1/2012, THIS DAY K.N. PHANEENDRA, J.
DELIVERED THE FOLLOWING:
2
ORDER ON IA NO.1/2013 & IA NO.1/2012
The learned counsel for the appellant has filed IA
No.1/2012 u/s.5 of the Limitation Act for condonation of
delay in filing the appeal and IA No.1/2013 for Special Leave
application under Section 378(5) of Cr.PC.
2. Though the matter has been heard on the above
said IAs., a serious legal question has been raised with
regard to application of the Limitation Act, so far as the
appeals filed u/s.378(4) of Cr.PC. on the ground that
Section 378(4) and (5) are the Special provisions provided
for preferring the appeal and it is a self contended
enactment which provides separate and independent
limitation for preferring the appeal. Therefore, the
provisions of Limitation Act, in general Sections 4 to 24
Cr.PC. and in particular Section 5 of the Limitation Act, are
impliedly excluded from application. Therefore, this court
has taken up the above said point to be thrashed out as to
ascertain whether the Indian Limitation Act is applicable for
the appeals filed u/s.378(4) of Cr.PC. in spite of the said
provision provide itself a limitation for preferring the appeal.
3
3. We have heard the arguments of the learned
counsels appearing in various criminal appeals assisting the
court for disposal of this IA in this particular appeal.
4. We have heard Sri P. Surana, Sri Satish Bandari,
Sri S.H. Prashanth, Sri Sunil Rao, Sri S.P. Kulkarni and Sri
P.B. Abhijith, who have argued the case before this court for
and against basing various rulings of Hon'ble Apex court and
other High Courts.
5. Sri. P.Surana has strenuously contended that if the
provision u/s.378 of Cr.PC. is in contrast to Section 372 of
Cr.PC. is considered, the scheme of the appeals are different
u/s.378 of Cr.PC.. Section 378(4) and (5) prescribe a
Special Leave to be filed by a private complaint, who has
filed a private complaint in which the accused has been
acquitted and the complaint filed a Criminal Appeal
u/s.378(4) Cr.PC. He further contends that the provision
u/s.378(5) Cr.PC. itself pre-supposes that, it should be
obtained within a specified period if it is filed by a public
servant u/s.378(3) of Cr.PC. there is less impact because
only 'leave' has to be obtained not a 'Special Leave'. So
4
far as such private complaints are concerned, the rigor is
more and impact is more on the society. Therefore, the law
has prescribed that he has to obtain a Special Leave within a
particular period of time. Therefore, the intention of the
legislature is very much clear that they want to put an end
to the private litigations as far as possible and as early as
possible. Therefore, when Section 378(5) of Cr.PC.
prescribes a special period of limitation, it expressly and
impliedly excludes the application of the Limitation Act. He
further contended that the proceedings u/s.138 of
Negotiable Instruments Act is a quasi criminal in nature and
preferring of an appeal is not a right but it is only a qualified
right, subject to the discretion of the court to grant Special
Leave. Acquittal is considered distinctly from conviction
judgments. Therefore, after relying upon various decisions,
which I am going to quote later, the learned counsel
submitted that the application deserves to be rejected,
holding that Section 5 of the Limitation Act is not applicable,
to the applications filed under section 378(5) beyond the
period prescribed under that section.
5
6. The various other counsels as noted above have
argued in favour of the application of the Limitation Act to
the appeals preferred u/s.378(4) and Special Leave is
sought u/s.378(5) of Cr.PC. It is contended that in view of
Section 29 of the Indian Limitation Act compared to old and
new Act, new Act specifically says that there should be an
express exclusion of the provisions of the Indian Limitation
Act by the special statute itself, if there is no specific
exclusion, then Indian Limitation Act particularly Sections 4
to 24 are applicable to all the other enactments where
though there is special provision is made specifying the
period of limitation to appeals and applications. Therefore,
it is contended that even though the provision u/s.378(5) of
Cr.PC. provides a period of limitation of 60 days, the
provision did not expressly exclude the application of the
Indian Limitation Act. Therefore, Limitation Act is
applicable. They also contended that express exclusion
should not be in any manner interpreted so as to defeat the
valuable right of the parties. Section 372 of Cr.PC. is the
principle provision which enables the victim to prefer an
appeal which is recognized as statutory right. However, it is
6
extended u/s.378(4) and (5) of Cr.PC. that if it is a private
complaint and the victim in the private complaint in case of
an acquittal of the accused can prefer an appeal u/s.378(4)
and (5) of Cr.PC. Therefore, the principle enunciated under
the provision 372 Cr.PC. is very well applicable to consider
that it is a statutory right of appeal given to the victim
either u/s.372 or u/s.378(4) and (5) of Cr.PC. Therefore, as
a matter of right, appeal can be preferred. If such right is
recognized under the law, it should not be defeated by
prescribing any procedural barricades. Therefore, if the
provisions u/s.378(4) and (5) of Cr.PC. which did not
specifically excluded the application of Limitation Act, in
such an eventuality and in view of Section 29(2) of the
Limitation Act, the provisions of Sections 4 to 24 of the
Indian Limitation Act are applicable.
7. They have also cited various rulings in this context.
In the light of the above said submissions, first I would like
to examine the provisions which contained in the Cr.PC. and
the Limitation Act which are referable to preferring of an
appeal, and application of the Indian Limitation Act, and
thereafter, I would like to consider various decisions cited in
7
order to ascertain the principles laid down in those cases so
as to arrive at a proper and correct conclusions as to
whether Sections 4 to 24 is also applicable to the appeals
filed by the private complaints against the judgment of
acquittal u/s.378(4) and (5) of Cr.PC.
8. Of course, Sections 372 and 378 Cr.PC. are the
relevant provisions which requires to be considered by this
court before comparing Section 378 of Cr.PC. with that of
Section 417(4) of old Cr.PC. and with other provisions of
Cr.PC. Section 372 of Cr.PC. reads thus:
"372. No appeal to lie unless
otherwise provided - No appeal shall lie
from any judgment or order of a Criminal Court
except as provided for by this Code or by any
other law for the time being in force:
(Provided that the victim shall have right
to prefer an appeal against any order passed
by the Court acquitting the accused or
convicting for a lesser offence or imposing
inadequate compensation, and such appeal
shall lie to the Court to which an appeal
ordinarily lies against the order of conviction of
such Court.)"
8
9. On plain reading of this particular provision, it
empowers irrespective of the bar contained in the Section,
victim has a right to prefer an appeal against any order
passed by the court acquitting the accused or convicting for
a lesser offence or imposing inadequate compensation and
such appeal shall lie to the court of which the appeal
ordinarily lies against an order of conviction of such court.
This clearly indicates that there is a bar u/s.372 of Cr.PC.
that no appeal shall lie from any judgment or order of a
criminal court except provided by this code or by any law for
the time being in force. That means if any other provision is
available in the Code itself, then a party has got a right to
prefer such an appeal before any court which is specifically
provided in the Act or Code or to the court which an appeal
ordinarily lies. However, if no other provision is available
under this code or any other law for the time being in force,
only in such an eventuality, the victim has got a right to
prefer an appeal under this provision against the order
acquitting the accused or for imposing inadequate sentence
or inadequate compensation.
9
10. Of course, the provisions under the Cr.PC.
provides various provisions for preferring of an appeal.
Chapter XXIX of Cr.PC. refers to various provisions provided
under Cr.PC. enabling the parties to prefer an appeal or
specifically mentioning where the appeal lies and no appeals
for various offences. Briefly stated Section 373 of Cr.PC.
provides an - "Appeal from orders requiring security or
refusal to accept or rejecting surety for keeping peace or
good behaviour". Section 374 provides provisions for -
"Appeals from convictions" rendered by the various courts.
Section 375 specifically says that - "No appeal in certain
cases when accused pleads guilty". Section 376 also
prescribes - "No appeals in petty cases". Section 377 is a
specific provision which enables the State Government i.e., -
"Appeal by the State Government against sentence". The
Government may in any case of conviction of a trial held by
any court other than High Court can prefer an appeal to the
Court of Session or to the High Court as the case may be.
Section 378 is the specific provision which refers to appeal
against acquittals which we are presently concerned when
the said provision which requires a detailed discussion by
10
this court. Section 379 again refers to - "Appeal against
conviction by High Court in certain cases" where the High
Court in an appeal reverse an order of acquittal, the appeal
lies to the Supreme Court. Section 380 refers to - "Special
right of appeal in certain cases". Section 381 and 382 are
the two provisions which refers to - "Appeal to Court of
Session how heard" and "Petition of appeal" can be filed and
appeal how it is to be heard by the court of Sessions.
Section 383 refers to the - "Procedure when appellant in
jail" and 384 refers to - "Summary dismissal of appeal".
Other provisions in the Code from Sections 385 to 394 are
the procedural aspects that has to be followed by the
Appellate Courts after the appeals are preferred under the
provisions as noted above.
11. Now, coming to the relevant provision i.e.,
Section 378 of Cr.PC. for easy understanding, I feel it just
and necessary to extract the provision of Section 378 of
Cr.PC. which reads thus:
"378. Appeal in case of acquittal - (1)
Save as otherwise provided in sub-section (2), and
11
subject to the provisions of sub-sections (3) and
(5) -
(a) the District Magistrate may, in any case,
direct the Public Prosecutor to present an appeal to
the Court of Session from an order of acquittal
passed by a Magistrate in respect of a cognizable
and non-bailable offence;
(b) the State Government may, in any case,
direct the Public Prosecutor to present an appeal 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.)
(2) If such an order of acquittal is passed in
any case in which the offence has been
investigated by the Delhi Special Police
Establishment constituted 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 Prosecutor to present an appeal -
(a) to the Court of Session, from an order of
acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence;
12
(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 sub-section (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 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.
(6) If, in any case, the application under sub-
section (4) for the grant of special leave to appeal
from an order of acquittal is refused, no appeal
from that order of acquittal shall lie under sub-
section (1) or under sub-section (2)."
(Emphasis supplied)
13
12. On plain reading of the above said provision, so
far as this case is concerned, the provision u/s.378(4) and
(5) of the Code are to be necessarily considered with other
provisions in the Cr.PC., in order to ascertain whether the
application of Limitation Act is expressly or impliedly
excluded.
13. Section 378(5) of the Code specifically says that if
a private person, who has filed a complaint under Section
2(d) of Code before the trial Court, on the basis of a private
complaint wherein the accused is acquitted, an appeal does
not lie before the High Court u/s.372, but the appeal lie
u/s.378(4) of Cr.PC. The rider put u/s.378(5) is that in
order to entertain the appeal Special Leave has to be
sought. But under sub clause (5) that Special Leave
Application has to be filed within 60 days computed from the
date of the order of acquittal that means only statutory
periods which can be excluded like the taking of the certified
copy of the order or the day on which the court is closed, in
such circumstances, only such period has allowed by law can
be extended as per the plain reading of the above said
14
provision. Further added to that, if this particular provision
is read, Section 378 as a whole, there is no indication that
the provision of Limitation Act is expressly excluded.
Therefore, this court has to ascertain whether on the basis
of other surrounding circumstances, the application of the
Limitation Act is impliedly excluded for extension of any
further time after lapse of 60 days as contemplated
u/s.378(5) of Cr.PC. Therefore, the court has to see what
exactly, the Limitation Act says with regard to the
application of the Limitation Act so far as the other
enactments are concerned where the other special
enactments specifically prescribe the period of limitation
otherwise than the period prescribed by the Limitation Act.
Therefore, it goes without saying that the Limitation Act is
the general enactment which prescribes the period of
limitation in spite of all contingencies with reference to filing
a suit, appeal, revision, review petition or petitions,
applications etc., if the other statutes whether it is a general
statute like Cr.PC. or a special statute, if the limitation for
the above said contingencies is fixed by the special
enactment itself, whether even in spite of the special
15
enactment fixing the period of limitation, still the Limitation
Act is whether applicable or the application of the Limitation
Act is automatically altogether expressly or impliedly
excluded has to be considered by this court.
14. In the above said backdrop, the court has to
examine some of the provisions under the Indian Limitation
Act.
15. Section 3 of the Indian Limitation Act says that it
prescribes the bar of limitation which reads as follows:
"Bar of Limitation - (1) Subject to the
provisions contained in sections 4 to 24(inclusive),
every suit instituted, appeal preferred, and
application made after the prescribed period shall
be dismissed, although limitation has not been set
up as a defence.
(2) For the purposes of this Act -
(a) a suit is instituted -
(i) in an ordinary case, when the plaint is
presented to the proper officer;
(ii) in the case of a pauper, when his
application for leave to sue as a pauper is
made; and
(iii) in the case of a claim against a
company which is being wound up by the
16
court, when the claimant first sends in his
claim to the official liquidator;
(b) any claim by way of a set off or a counter
claim, shall be treated as a separate suit and shall
be deemed to have been instituted -
(i) in the case of a set off, on the same
date as the suit in which the set off is
pleaded;
(ii) in the case of a counter claim, on the
date on which the counter claim is made in
court;
(c) an application by notice of motion in a High
Court is made when the application is presented to
the proper officer of that court."
16. This particular provision refers to the application
of Section 4 to 24 of the Limitation Act, for a suit, appeal
and application, which are filed after the prescribed period
of limitation. Though the limitation is fixed, under the
Limitation Act, under various provisions, the extension of
Limitation Act also tobe entertained by the court u/s.5 of the
Indian Limitation Act. Section 5 is a general provision which
in fact gives discretion to the court as to under what
circumstances, even if the period of limitation is expired and
under what circumstances, the court can extend the said
period of limitation by condonation of delay.
17
The said Section 5 of the Act reads as follows:
"5. Extension of prescribed period in
certain cases - any appeal or any application, other
than an application under any of the provisions of
Order XXI of the Code of Civil Procedure, 1908 (5
of 1908), may be admitted after the prescribed
period, if the appellant or the applicant satisfies the
court that he had sufficient cause for not preferring
the appeal or making the application within such
period.
Explanation - The fact that the appellant or
the applicant was misled by any order, practice or
judgment of the High Court in ascertaining or
computing the prescribed period may be sufficient
cause within the meaning of this section."
17. On plain reading and understanding of the above
said provision, which refers to appeal or any application, the
same may be admitted even after the period prescribed
under the Limitation Act, if the party file the appeal or the
application satisfies the court that he had sufficient cause
for not preferring the appeal or making the application
within such period, the explanation also shows that the fact
that the appellant or the applicant was mislead by any order
or judgment of the High Court in ascertaining or continuing
18
the period prescribed may be sufficient because within the
meaning of this Section. Therefore, the application
prescribed under this particular provision is the application
other than the application under any of the provisions of
Order XXI of CPC, 1908. Therefore, all other applications
whether under any Criminal Law or a Civil Law, within
prescribe separate period of limitation within such
prescribed time, such application has to be filed, if such
application is filed after the prescribed period, then u/s.5 of
Limitation Act, the court gets jurisdiction to condone the
delay and extend the period of limitation and entertain such
application or appeal as the case may be.
18. In the light of the above said provision,
particularly in this particular case, I am dealing with the
application filed for seeking special leave to entertain the
appeal u/s.378(5) of Cr.PC. Therefore, the said application
definitely fall under the category of nomenclature of
application as found in Section 5 of the Limitation Act. But
the question is whether Section 5 of the Act can be made
applicable for extension of time to allow the application filed
19
for granting special leave in turn in order to entertain the
appeal filed u/s.378(4) of Cr.PC.
19. In this background, Section 29 of Limitation Act
also play a dominant role, which is referable to the limitation
prescribed otherwise than the Limitation Act in any other
statute. Section 29(2) of the Act, 1963 which is relevant is
to be considered and the same reads thus:
"29. Savings - (1) Nothing in this Act shall affect
section 25 of the Indian Contract Act, 1872
(9 of 1872)
(1) XXXXXXXXX
(2) Where any special or local law prescribes for
any suit, appeal or application a period of
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 or
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)
20
20. On meaningful understanding of this provision
which says that, where any other special law or local law
[like Cr.PC. which is particularly dealt with in this particular
case] prescribes for any suit, appeal or application, a period
of limitation, otherwise than the period prescribed by the
schedule under the Limitation Act, then the provisions of sub
Section (3) shall apply as if such period, the period
prescribed by the schedule. Therefore, for the purpose of
determining the period of limitation prescribed for any suit,
appeal or application by any special or local law, then the
provisions contained in Sections 4 to 24 shall apply only so
far as and to the extent to which they are not expressly
excluded by such special law or local law. Therefore, it is
clear from the above said provision that though the special
law prescribes any special period of limitation, as prescribed
in sub section (5) of Section 378 for filing a special leave
application unless the said provision or the special
enactment expressly excludes the application of the
Limitation Act, in such an eventuality, Sections 4 to 24 of
the Limitation Act are made applicable. Therefore, the court
21
has to examine whether the special statute even considering
the criminal procedure code as a special statute and Section
378(5) as a special provision prescribe the period of
limitation so far as the special leave applications are
concerned, whether the application of Section 5 of the
Limitation Act is expressly or impliedly excluded, is to be
looked into by this court.
21. The earlier provision of Section 29 is also to be
taken into consideration as to what is the difference
between the earlier enactment of Section 29 with the
present enactment. Section 29 of the old Limitation Act
1908 also to be borne in mind in order to ascertain the
difference between the old Act and the new Act. Section
29(2) of the old Act reads as follows:
"29. [(1) Nothing in this Act shall affect
section 25 of IX of 1872 the Indian Contract Act,
1872.
(2) Where any special or local law prescribes for
any suit, appeal or application a period of limitation
different from the period prescribed therefore by
the first schedule, the provisions of section 3 shall
apply, as if such period were prescribed therefore
in that schedule, and for the purpose of
22
determining any period of limitation prescribed for
any suit, appeal or application by any special or
local law-
(a) the provisions contained in section 4,
sections 9 to 18, and section 22 shall apply only in
so far as, and to the extent to which, they are not
expressly excluded by such special or local law;
and
(b) the remaining provisions of the Act shall not
apply.]"
22. On literally interpreting the above said provision,
it clearly discloses that if any special law prescribes any
separate period of limitation for any suit, appeal or
application, in such an eventuality the said provisions should
be read in consonance with Section 3 to consider that such
period were also prescribed there for in the schedule. So far
as the application of the Limitation Act is concerned, Section
29(2)(a)(b) of the Act specifically says that Sections 4, 9 to
18 and 22 of the Act shall apply only in so far as to the
extent to which they are not expressly excluded by such
special law or local law and all other remaining provisions of
the Act shall not apply. Therefore, it clears all the doubt
that the Limitation Act itself irrespective of the period of
exclusion of any of the provisions of the Limitation Act by
23
the special law, the limitation Act itself specifically excluded
the application of Section 5 of the Limitation Act. So far as
the provisions u/ss.4, 9 to 18 or 22 are made applicable
where there is no express exclusion by the Special law.
That means once the separate and special period of
limitation is fixed by the Special or Local law, under the old
limitation Act, Section 5 was not at all made applicable for
condonation of delay in filing a suit, preferring an appeal or
filing an application before the courts.
23. As contrasted from the present Section i.e., under
the amended Limitation Act, as I have already discussed,
the said Act has excluded the application of Sections 4 to 24
if there is any express exclusion by such Special law or local
law. Therefore, Section 5 is also included as Sections 4 to
24 includes Section 5 of the Act. Therefore, Section 5 is not
applicable if the provisions contained in Sections 4 to 24 or
any provision between these two provisions are expressly
excluded by the special law or local law, in such an
eventuality, only the special law is strictly applicable and
Limitation Act is not applicable.
24
24. Section 417 of Cr.PC. under the old Act also to be
borne in mind before adverting to some of the decisions in
this regard. Section 417 of Cr.PC. 1898 reads as follows:
"417. (1) Subject to the provisions of
sub-section(5), the State Government may, in any
case, direct the Public Prosecutor to present an
appeal to the High Court from an original or
appellate order of acquittal passed by any court
other than a High Court.
(2) If such an order of acquittal is passed
in any case in which the offence has been
investigated by the Delhi Special Police
Establishment constituted under the Delhi Special
Police Establishment Act, 1946, the Central
Government may also direct the Public Prosecutor
to present an appeal to the High Court from the
order of acquittal.
(3) 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.
(4) No application under sub-section (3)
for the 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.
25
25. A comparison of Section 378 with the old Section
417 of the Code shows that whilst under the old Section,
there is no application for Leave to appeal had to be made
by the State Government or the Central Government, now,
by virtue of Section 378(3), the State Government or the
Central Government have to obtain leave of the High Court
before their appeal could be entertained. Sub section (4) of
Section 378 [which is presently, we are concerned] is
identical to sub section 3 of Section 417 of Cr.PC., Thus, a
complainant desirous of filing an appeal against acquittal
must still obtain Special Leave. Thus, Section 378 makes a
distinction between an appeal filed by the State Government
or the Central Government who only need to obtain "leave",
and an appeal by a complainant needs to obtain "Special
leave". The limitation provided in sub Section (5) is only in
respect of applications under sub section (5) i.e., application
for Special Leave to appeal by a complainant [Private
complaint]. A complainant may be either a public servant
or a private party. If the complainant is a public servant,
then the period of limitation for an application for special
26
leave is six months. If the complainant is a private party
then the period of limitation for an application for special
leave is sixty days. The period of six months or 60 days do
not apply to the appeals by the State Government under sub
section (1) or the Central Government under sub section
(2). Appeals by State Government or Central Government
continue to be governed by Article 114(a) of the Limitation
Act. In other words, those appeals must be filed within 90
days from the date of the order appealed from. It is
needless to state, if there is a delay in filing an appeal by
the State Government or the Central Government it would
be open to them to file an application u/s.5 of the Limitation
Act for condonation of such delay. That period can be
extended if the court is satisfied that there was sufficient
cause for not preferring the appeal within the period of 90
days. However, such application for condonation of delay in
filing special leave application, if it exceeds the period
prescribed therein, whether application u/s.5 of the Act can
be filed as the period of limitation of six months or 60
days is specially prescribed under the Act is the question
that requires to be considered by this court.
27
26. Now, in this background, I would like to examine
the various decisions right from the beginning so far as this
aspect is concerned.
27. In 1957 Crl.LJ 923 between Putchalar Alli
Venkata Subbareddo and Duvvuru Papireddi and
another, the court has held after analyzing the special law
and local law holding that Cr.PC., is not a special law.
Therefore, Section 29(2) of the Limitation Act, 1908 is
applicable so far as the special leave to appeal u/s.417 (3)
and (4) of Cr.PC., is concerned, on the ground that Section
5 of the Limitation Act has not been specifically excluded by
the special law.
28. In another ruling reported in AIR 1964 SC 260
in the case of Kaushalya Rani Vs. Gopal Singh, wherein
the Hon'ble Apex Court has considered the application of
Section 5 of the Limitation Act so far as the appeals filed
u/s.417(3) and (4) of Cr.PC., 1898. The Supreme Court in
fact held that Section 417(4) & (5) are the special law within
the meaning of Section 29(2) of the Limitation Act. There is
no special period of limitation prescribed by the Limitation
28
Act for the appeals filed u/s.417(3) & (4), but a special
period of limitation is provided for the special leave
applications u/s.417(4) itself. Thus, there is a difference
between Limitation Act and the period recognized
u/s.417(4) of the Court. Therefore, the court held that no
application under sub Section (3) for grant of special leave
to appeal from the order of acquittal shall be entertained by
the High Court after the expiry of 60 days from the date of
order of acquittal.
29. In the case reported in AIR 1965 KERALA 31
between Health Inspector, Badagara Municipality and
Puzhakkal Kelappan, wherein the High Court of Kerala
while dealing with the provisions of Section 417(3) & (4) of
Cr.PC., has held that application for leave to appeal against
acquittal by private complainant and limitation provided
under section (4), after discussing in detail the court held
that the Limitation Act is applicable.
30. In a case reported in AIR 1968 PUNJAB AND
HARYANA 352, between Parsano and Hazara Singh,
the court after discussing the provisions of Section 417(3) &
29
(4) and Section 5 of the Limitation Act read with Section
29(2) of the Indian Limitation Act, held that in view of sub
section (2) of Section 29, there is no express exclusion of
application of Section 5 of the Limitation Act to get the delay
condoned by satisfying the court is not altered. Therefore,
Section 5 of the Limitation Act held to be applicable.
31. There comes in the year 1974, the Supreme
Court while dealing with the similar aspect with respect to
some other enactment, reported in AIR 1974 SC 480
between Hukumdev Narain Yadav. And Lalit Narain
Mishra, wherein the Hon'ble Apex Court has considered
Section 81 of the Representation of the People Act with
respect to Election Petition and also with reference to
Section 10 of General Clauses Act and also considering
Section 29(2) and Section 5 of the Limitation Act
categorically held that there was an express reference to
such provisions in Special law not necessary. Therefore,
Section 5 does not apply to Election Petition under the
Representation of the People Act. Therefore, the specific
special period of limitation is prescribed under the said Act,
impliedly excludes the provisions of Limitation Act.
30
32. In the case reported in AIR 1976 SC 105,
between Mangu Ram and Corporation of Delhi, wherein
the Hon'ble Apex Court also discussed with regard to
Section 417(3) & (4) application and Section 5 of the
Limitation Act, the Hon'ble Apex Court considering the effect
of the amended Limitation Act and under Section 29, after
discussing in detail and also referring to Kousalya Rani's
case as noted supra, the court has specifically observed
that-
"Where an application for special leave to
appeal from an order of acquittal is filed after
coming into force of the Limitation Act, 1963
Section 5 would be applicable to the applicant
and if he can show that he had sufficient cause
for not preferring the application within the
time limit of 60 days prescribed under sub
Section (4) of Section 417, the application
would not be barred and despite the expiration
of the time limit of 60 days, the High Court
would have the power to entertain it.
33. The Hon'ble Apex Court has also observed in the
said case that mere provision of period of limitation
howsoever peremptory or imperative language is used even
31
then, it is not sufficient to displace the applicability of
Section 5. Therefore, irresistible conclusion is that in a case
where an application for special leave to appeal from an
order of acquittal is filed after coming into force of Limitation
Act 1963. Section 5 would be available to the applicant if
he can show that he had sufficient cause for not preferring
the application within the time limit of 60 days prescribed
under sub section (4) of Section 417 of the Code.
34. In another decision reported in
MANU/UP/0388/1981 between State Vs. Chhinga &
Others, wherein again the court considering the new
Limitation Act, 1963, Section 29(2) and Section 3 and also
the provision u/s.378 of new code of criminal procedure and
after giving careful consideration, it is said that Section 378
is a special law for appeals prescribing the limitation on its
own. In view of Section 29(2), Section 5 of the Limitation
Act is applicable for condonation of delay in filing the
application for special leave, as the said provision is not
expressly excluded.
32
35. In another decision reported in (2001) 10 SCC
372 between State (Delhi Administration) and
Dharampal, wherein the Hon'ble Apex Court while dealing
with Section 378(5), at Head Note 'C' has observed that
Section 5 of the Limitation Act is applicable to the
application for special leave filed by the complainant filed by
a public servant or a private party but not to appeal by
State Government or the Central Government and their
appeals are governed by Article 114(a) of the Limitation Act
and period of 90 days is applicable for the purpose of
preferring the appeals.
36. In another decision reported in (2004) 11 SCC
456 between L.S. Synthetics Ltd., and Fairgrowth
Financial Services Ltd., wherein the Hon'ble Apex Court
again dealing with Section 29(2) held that special statute
providing for special or no period of limitation, then it must
receive a liberal and broader construction - intent and
purport of parliament enacting the said Act must be given
its full effect, but in construing a special statute providing
for limitation, consideration of plea of hardship is irrelevant.
33
The Limitation Act 1963 is applicable only in relation to
certain applications and not to all the applications despite
the fact that the words "other proceedings" were added in
the long title of the Act in 1963, the provisions of the 1963
Act are not applicable to the proceedings before bodies
other than courts, such as a quasi judicial tribunal or even
an executive authority. The act primarily applies to the civil
proceedings or some special criminal proceedings. Even in a
Tribunal, where the Code of Civil Procedure or Code of
Criminal procedure is applicable, the Limitation Act, 1963
per se may not be applied to the proceedings before it.
Even in relation to certain civil proceedings, the Limitation
Act may not have any application due to suo motu exercise
of powers by the Court. Even no period of limitation is
prescribed in relation to a writ proceedings.
37. Though the above said ruling is not strictly
applicable. But the applicability of Limitation Act so far as
the judicial courts are concerned is very well recognized.
38. In another decision reported in AIR 2004 SC
3068 between Gopal Sardar and Karuna Saradar
34
wherein, the Hon'ble Apex Court while dealing with the West
Bengal Land Reforms Act, Section 8 of the Limitation Act,
1963, Section 29(2) and Article 97 of the Limitation Act,
while considering the Right of pre-emption, held that
Section 5 of the Limitation Act does not apply because (i)
the proceedings u/s.8 of the West Bengal Act are in nature
of suit and (ii) West Bengal Act is self contained code
making provision for application of Section 5 of the
Limitation Act or its principles expressly and specifically to
other proceedings i.e., appeals, revisions etc., but not to
proceedings under Section 8. Therefore, the Hon'ble Apex
Court observed that the period of limitation including the
provision of Section 5 of the Limitation Act is provided in a
special enactment or provision, in such an eventuality, it
amounts to exclusion of the provisions of the Limitation Act,
has to be inferred in order to exclude the application of
Section 5 of the Limitation Act.
39. What emerges from this decision is that the
legislature's intentional consciousness in expressly or
impliedly excluding the application of the provision of
35
Limitation Act has to be considered by the courts dealing
with the other provisions in the same enactment.
40. In AIR 2005 SCW 3076 between Fairgrowth
Investments Ltd., and The Custodian the Hon'ble Apex
Court while dealing with Section 4(2) of the Special Court
(Trial of Offences Relating to Transactions in Securities) Act,
(41 of 1992) and Objection to notification u/s.3(2); filing of
u/s.4(2), objection to the notification to be filed within a
particular period of time. The Hon'ble Apex Court has
further observed that Section 4(2) of the Act requires a
person objecting to a notification issued under sub section
(2) of Section 3 of the Act to file a petition raising such
objection within 30 days from the issuance of such
notification. The Apex Court observed that, the words used
are unequivocal and unqualified and there is no scope for
reading in to the power of Court to dispense the application
of Limitation Act, on the basis of any principle of
interpretation of statutory provisions. Ultimately, the
Hon'ble Apex Court after considering various decisions, has
come to the conclusion that Section 5 of the Limitation Act is
applicable.
36
41. In a case reported in (2009) 5 SCC 791 between
The Commissioner of Customs and Central Excise and
Hongo India Pvt.Ltd., and another wherein the Hon'ble
Apex Court while dealing with Section 35-H of the Central
Excise Act, with reference to applicability of Section 5 of the
Limitation Act, 1963. It was held that Appeal and Reference
to High Court should be made within 180 days from the date
of communication of the decision or order. Time limit
prescribed for making reference to the High Court is
absolute and un-extendable by court u/s.5 of the Limitation
Act, 1963 because the remedy is provided in the Act itself
by granting a further clause empowering the High Court to
condone delay after 180 days that means Section 35
provides 60 days time in addition to the same, the
Commissioner has power to condone the delay upto 30 days
if sufficient cause is shown likewise Section 35-B provides
90 days' for filing appeal to the appellate Tribunal and sub-
Section (5) therein enables the Appellate Tribunal to
condone the delay irrespective of the number of days, if
sufficient cause is shown. Likewise Section 35 (EE) which
provides 90 days' time for filing revision by the Central
37
Government and, proviso to the same enables the revisional
authority to condone the delay for a further period of 90
days, if sufficient cause is shown, whereas in the case of
Appeal to the High Court u/s.35-G and reference to the High
Court u/s.35-H of the Act, total period of 180 days has been
provided for availing remedy of appeal and the reference.
However, there is no further clause empowering the High
Court to condone the delay after the period of 180 days.
Therefore, the Hon'ble Apex Court held that when period of
limitation even for condonation of delay is also provided
under the special enactment, it amounts to expressly
excluding the application of Section 5 of the Limitation Act.
42. In another decision reported in 2015 CRL.LJ.
2772 between Saj Properties Pvt.Ltd., and Virender
Dagar wherein, it was held for Leave to file Appeal, Petition
- condonation of delay, that when there is no express
exclusion of application of Section 5 of the Limitation Act to
Qua Leave Petition. Therefore, Section 5 of the Limitation
Act would be applicable to leave petition to seek
condonation of delay even after excluding the time
consumed in preparation and supply of certified copy and
38
the period of time where the courts are closed etc., if there
is any delay on sufficient ground.
43. In another decision reported in (2016) 6 SCC
157 between Pankajakshi (dead) through legal
representatives and others And Chandrika and Others.
In this particular case, the Hon'ble Apex Court has
considered Section 29(2) of the Limitation Act and held that,
the words - "Expressly excluded" must be contained in
Special or local law as distinguished in Section 4(1) of CPC.
Therefore, while dealing with Section 4(1) of the Code,
1908, the court held that there must be "specific provision
to the contrary" must be contained in Civil Procedure Code,
1908 itself and not in any other law so as to exclude the
application of the Code.
44. In another decision reported in AIR 2017 SC
383 between M/s.Patel Brothers And State of Assam
and Others, wherein the Hon'ble Apex Court while dealing
with Sections 81 and 84 of VAT Act, with reference to
Section 5 and 29(2) of the Limitation Act, held that the
provisions of Section 5 of the Limitation Act not applicable to
39
the proceedings u/s.81(1) of the said Act. When the
Hon'ble Apex Court has observed that Section 81 of the VAT
Act prescribes a limitation period of 60 days within which
the revision petition is to be preferred to the High Court in
the said case, there was a delay of 345 days in filing the
revision. The application was filed u/s.5 of the Limitation
Act seeking condonation of delay for such delay, the High
Court whould have dismissed the application for condonation
of delay holding that the provisions of Section 5 of the
Limitation Act are not applicable.
45. The Hon'ble Apex Court has observed that, the
High Court has referred to Section 84 of the VAT Act which
makes the provision u/s.4 and 12 of the Limitation Act,
1963 only applicable to such provisions. On the basis of
that, it was held by the High Court that since Sections 4 &
12 of Limitation Act, 1963 were made specially applicable.
Therefore, by necessary implication, Section 5 of the
Limitation Act stands excluded.
46. In another decision reported in AIR 2018 SC
807 and between Bengal Chemists and druggists
40
Association and Kalyan Chowdhury wherein the Hon'ble
Apex Court while dealing with Section 421(3) of the act and
proviso to Section 433 with reference to Section 5 of the
Limitation Act. The court observes that a special period of
limitation is prescribed under the particular enactments.
i.e., the appeal against an order of tribunal filed 9 days after
the expiry of 45 days limitation period and further period of
45 days was also expired. Therefore, considering that the
special provision contained in Section 421(3) Proviso, which
is peremptory in nature and Section 5 is in built in the
enactment itself to condone the delay. Therefore, the delay
application cannot be entertained.
47. The Hon'ble Apex Court also observed that
Section 125 lays down that any person aggrieved by any
decision or order of the Tribunal can file an appeal to this
court within 60 days from the date of communication of the
decision or the order of the tribunal. Proviso to section 125
empowers this court to entertain an appeal filed within a
further period of 60 days if it is satisfied that there was
sufficient cause for not filing an appeal within the initial
period of 60 days. This shows that the period of limitation
41
prescribed for filing appeals under Sections 111(2) and 125
is substantially different from the period prescribed under
the Limitation Act. The use of the expression "within a
further period not exceeding 60 days" in the proviso to
Section 125 makes it clear that the outer limit for filing an
appeal is totally 120 days. There is no provision in the Act,
under which this court can entertain an appeal filed against
the decision or order of the Tribunal after more than 120
days." Therefore, the application filed u/s. 5 of the
Limitation Act was rejected.
48. In another decision reported in AIR 2018 SC
5013 between P.Radha Bai and Others And A.P. Ashok
Kumar and another wherein the Hon'ble Apex Court while
referring to the Arbitration and Conciliation Act, Sections
34(3) of the Limitation Act has again held that the limitation
prescribed under the Act also empowers the court to
condone the delay to some extent under the said provision.
Therefore, when the Limitation Act itself provides power to
the court to condone the delay after the limitation period is
prescribed under the Act, it amounts to expressly excluding
42
the application u/s.5 of the Limitation Act. Therefore, in
such circumstances, the Limitation Act is not applicable.
49. The meticulous examination and meaningful
understanding of the legislative intent and also the
observations and principles laid down in the above said
rulings, the ultimate legal aspect that arises for
consideration of this court is that whether the special statute
i.e., Cr.PC. u/s.378(4) and (5) have expressly or impliedly
excluded the application of Section 5 of the Limitation Act.
Ultimately, it would be a question of interpretation of the
special or local law in question with that of the provisions
under the Limitation Act.
50. Before adverting to the above said question to be
answered, we must bear in mind, the general principles with
regard to the right of appeal recognized under the statute
which should be very jealously safeguarded by the courts.
The court should bear in mind when right is recognized that
should not be in any manner allowed to be frustrated on the
ground of technicalities particularly delay and the court
should not become handicapped in order to advance
43
substantial justice and in order to safeguard the rights,
liabilities recognized under the statute unless the statute
itself prohibits the court doing that exercise. The
correctness of the judgment or an order of acquittal by
preferring an appeal to the High Court is conferred upon the
victim, even it gone to the extent of providing such right to
the LRs. and others as defined u/s.2(wa) of Cr.PC. under the
proviso to Section 372. The rider is only that they have to
obtain leave of the High Court under the said provision and
special leave under the provisions of sub-sections (4) and
(5) of 378 of Cr.PC. Therefore, it is settled principle of law
that right to an appeal is a statutory right or a creature of
statute and no other right to file an appeal can be
recognized and dehorse a statute. Therefore, though
Section 378 (4) and (5) right to appeal is created under the
statute otherwise than that no appeal can be filed unless it
is clearly expressed in the terms of a statute. The rights
created under the substantive laws are called as substantive
rights and not merely a matter of procedure. Once the
right of appeal is vested, which can be exercised when the
adverse judgment is pronounced. Such right is governed by
44
substantive law and how it has to be exercised are governed
by procedural laws. Therefore, exercising right in a
particular manner by following certain procedures should
always take the back seat and the substantive right of a
person occupies the front seat. Hence, the court should also
bear in mind that, there is a basic distinction between the
right of suit and the right of appeal. There is an inherent
right in every person to prefer an appeal under the statute.
An appeal is the right to enter a superior court and invoking
its aid and interposition to redress the error of the trial
courts. In an appeal, the main question to be considered by
the appellate court is whether the order of the court from
which the appeal is brought was right or erroneous, illegal
or irregular. Thus, the right of appeal and consideration of
that right is a paramount compared to the procedure for
hearing the appeal. Therefore, the courts must be fair
enough to ascertain the workability of the appeals as
provided both under substantive laws and procedural laws.
51. In this back ground, the courts should also bear
in mind that the rules or procedure like application to be
filed for condonation of delay under Limitation Act are not
45
meant to totally destroy the rights of the parties recognized
under substantive laws. The riders under the procedural law
are only meant to see that the parties do not resort to
dilatory tactics. In such an eventuality, only the strict rule
of procedure has to be adopted. But, if the court is of the
opinion that the parties very promptly seek their remedy
without adopting any dilatory tactics too reasonably and
genuinely prevented from exercising their substantive right,
in such an eventuality, adopting of strict procedure may not
be advisable. Therefore, the object of providing legal
remedy is to repair the damage caused by reason of legal
injury.
52. Of course, the law of limitation fixes a life span
for such legal remedy for the redress of the legal injuries so
suffered. Of course, time is very precious and wasted time
would never revisit. During the efflux of time, newer causes
would sprout up necessitating newer persons to seek legal
remedy by approaching the courts. Therefore, the life span
must be fixed for each remedy. Such life span should also
be interpreted in such a manner it would definitely advance
substantial justice rather than disturbs the right created
46
under a statute. The law of limitation is thus founded on
public policy. It is enshrined in the maxim interest
reipublicae up sit finis litium i.e., it is for the general welfare
that a limitation period be put to litigation. Therefore, Rules
of Limitation are not meant to destroy the rights of the
parties but to regulate the dilatory tactics that may be
ventured by the parties to curb such persons who
approaches the court with unclean hands. Therefore, the
total idea is that, every legal remedy must be kept alive for
a legislatively fixed period of time subject to other
provisions given for relaxation of fixed period of time by
exercising the discretion of the court considering the
genuineness of the reasons provided for such condonation of
delay.
53. It is true that the maxim vigilantibus non
dormientibus jura subveniunt i.e., law assists those who are
vigilant and not those who sleep over their rights is strictly
applicable, but, even a vigilant litigant some time may prone
to commit mistakes. Those mistakes may be beyond his
control. Therefore, the general principle is that -'to err is
human' is more a practical notion of human behaviour than
47
an abstract philosophy. Therefore, sometimes,
unintentional lapse on the part of a litigant should not
normally close the doors of the judicature permanently
where still there exists right vested with such person.
Therefore, the ultimate effort of the court should not be one
of finding means to pull down the doors of the court but to
advance the justice substantially even considering all other
procedural laws.
54. In this background, in almost all the substantive
laws where the rights, liabilities and disabilities are
recognized and the procedural laws connected with those
laws, definitely enshrined jealously safeguarding the
substantial rights.
55. In the above said backdrop, the court has to
examine the real controversy in this particular case.
56. Now, the court has to examine the special law
i.e., Section 378(4) & (5) of Cr.PC., whether it expressly or
impliedly excludes the application of Limitation Act Sections
4 to 24. Under the old Limitation Act, which I have already
referred to above, there was a specific exclusion of
48
application of Section 5 of the Limitation Act. But, under the
new Act, such provision is not available but the new act says
that if the special law or the law otherwise than the
Limitation Act, which prescribes any period of limitation on
its own, in such an eventuality, such limitation should be
treated as the limitation prescribed u/s.3 of the Indian
Limitation Act. However, Section 29(2) also says that if the
other provisions of the Limitation Act i.e., Sections 4 to 24,
if not specifically excluded by the special law, in such an
eventuality, the provisions of Sections 4 to 24 can be very
well invoked even under the special law to extend the period
of limitation on the grounds recognized under the provisions
of the Limitation Act.
57. In the light of the above said legal mandate, as
could be seen from Section 378 of Cr.PC. and any of the
provisions under the Cr.PC. as we have already defined
which prescribes a special period of limitation, in contrast
with the Limitation Act, but there is no express exclusion of
the provisions of the Limitation Act. Express exclusion of
the words used in the legal parlance means, it specifically
says that there must be specific wordings in the special
49
statute or a special provision stating that, the application of
the provisions of the Limitation Act or any particular
provision of the Limitation Act, is 'Expressly' excluded.
Otherwise, the court has to examine whether by means of
other circumstances, the court can infer such an exclusion.
Plainly said that the above said provision Section 378 does
not expressly exclude the provisions of Limitation Act, as no
such specific or synonymous words are used. Therefore, I
have to examine whether by means of other implications
such exclusion can be inferred by the court.
58. The implied exclusion can be inferred by the court
in two specific circumstances. (1) If the special provision is
provided under the Act itself empowering or giving
discretion to the court to condone the delay even after the
appeal, applications are filed beyond the period of limitation
fixed by the special statute; (2) Secondly, if on perusal of
the special statute itself, if the special statute whether as
provided the period of limitation and also further period
giving discretion to the court to condone such delay. In
other provisions of the same statute, but excluding a
particular provision in such an eventuality also, the court
50
can draw such inference. Now, I will examine the above
said two aspects one by one.
59. The Hon'ble Apex Court in the case of
Commissioner of Sales Tax UP, Lucknow and Parga ...
Kanpur reported in AIR 1975 SC 1039, while dealing with
the question of limitation, in relation to revision filed beyond
time prescribed by Section 10 of UP Sales Tax Act, 1948 has
made an observation that -
"The principle that emerges is that if the
legislature in a special statute, prescribes a
certain period of limitation for filing a particular
application thereunder provides in clear terms
that for such period sufficient cause being
shown may be extended, in the maximum,
only upto a specified time limit and no further -
then the Tribunal concerned has no jurisdiction
to treat within the period of limitation,
application filed before it beyond which
minimum time limit specified in the statute by
excluding the time spent in prosecuting an act,
fall and due diligence u/s.14(2) of the
Limitation Act. this particular principle is also
can be gathered in a decision already referred
to reported in (2009) 5 SCC 791 between the
51
Commissioner of Customs and Central
Excise and Hongo India Private Ltd., and
another, which I have already referred to in
detail."
60. The same principle is also enunciated in another
decision which I have already referred to reported in AIR
2018 SC 807 between Bengal Chemists and Druggists
& Kalyan Chowdhury. In the above said case, though the
period of limitation for filing Application, Revision, Appeal
etc., are prescribed, a further period is also fixed by the
statute giving discretion to the court to condone such delay
as fixed by the statute and it specifically excludes the
discretion of the court to condone the delay except that
further period of limitation fixed by the statute. Therefore,
it clearly discloses that if two limitation periods are fixed one
limitation period fixing the period of limitation for the
purpose of filing appeal, revision, review, applications etc.,
and another further period of limitation giving discretion to
the courts to condone the delay, in such circumstance, it
virtually amounts to substitution of Section 5 of the
Limitation Act in the special statute itself empowering the
court to condone only such delay as fixed by the statute.
52
61. In the above said background, if the provision of
Section 378(4) and (5) particularly sub clause (5) the said
provision is examined, it prescribes the period of limitation
of 60 days only for the purpose of filing an application for
special leave. No further period of limitation is fixed giving
any discretion to the court to condone such delay of any
period more than 60 days as fixed by the statute.
Therefore, it clearly goes to show that the court cannot infer
even an implied exclusion of the provisions of the Limitation
Act if we read Section 378 in proper perspective.
62. The next important point is that whether on
analysis of the entire special statute itself, whether implied
exclusion can be inferred to the effect that application of
Limitation Act is excluded so far as Section 378 (4) and (5)
alone is concerned. This has to be thrashed out by
examining the other provisions of the Cr.PC. So far as the
appeals and applications are concerned, on thorough
examination, under the special statute in respect of the
various other provisions relating to filing of appeals under
Chapter XXIX of the Code and revisions though specific
53
provisions are made with reference to fixing the period of
limitation to file Appeals, Revisions, Applications etc., but, in
none of the said provisions, the application of Section 5 of
the Limitation Act is not specially made applicable nor the
said provisions are expressly excluded. Therefore, when the
other provisions of Cr.PC. does not exclude the application
of Section 5 of the Limitation Act nor it is made that Section
5 is made applicable to other provisions specifically
excluding Section 378 of Cr.PC. Therefore, the court cannot
infer that the application of the Limitation Act in view of
section 29(2) and inturn the application of Sections 4 to 24
of the Limitation Act are specifically expressed or impliedly
excluded for provision u/s.378 (5) of Cr.PC.
63. Therefore, in my opinion, neither the provisions of
the Indian Limitation Act has specifically or expressly
excluded nor there is any indication in the special statute
itself that the provisions of Limitation Act are impliedly
excluded.
64. For the above said reasons, I am of the
considered opinion that the provisions of the Limitation Act
54
as enunciated u/s.29(2) of the Indian Limitation Act can be
very well pressed into service and inturn it can be
unequivocally said that the provisions of Limitation Act from
Sections 4 to 24 are very well applicable for the purpose of
condoning the delay in filing the application under sub
sections (4) and (5) of Section 378 of Cr.PC. for Special
Leave to prefer an appeal filed after the period of limitation
fixed under that provision, if sufficient ground are made out
as contemplated under section 5 of the Limitation Act.
65. Now, coming to the contents of IA Nos.1 of 2012
and 1 of 2013 in this particular case.
66. As I have already held that Section 5 of the
Limitation Act in all force applicable to the appeals filed
u/s.378(4) of Cr.PC. Now, I have to consider IA No.1/2013
on merits which is filed for granting of Special Leave to
prefer an appeal and IA No.1/2012 for condonation of delay
in filing Special Leave application.
67. As there is some delay in preferring the appeal,
an application is filed for condonation of delay as per IA
No.1/2012. There is a delay of 34 days in preferring the
55
appeal. It is explained in the affidavit filed in support of the
application that the impugned judgment was passed on
3.9.2012 thereafter, they applied for certified copy of the
order and they have taken the copy on 14.09.2012. As the
appellant being a lady, she was required to travel for her
medical checkup, she was also under the impression that
the time prescribed for filing an appeal is about 90 days.
However, she secured the documents from her counsel and
thereafter, she has approached the counsel in the High
Court in order to prefer the appeal. Then only she came to
know the time fixed for preferring the appeal with Special
Leave application as 60 days. There was bonafide mis-
conception and mis-understanding of law in this contention
and she has undergone medical checkup and thereafter
came to the counsel at High Court and filed the appeal. This
application has not been contested by other side by filing
any objections to the same. Therefore, though there is
delay of 34 days, in my opinion, the same is not deliberate
and intentional delay. On perusal of the judgment of the
trial Court, the trial Court has acquitted the accused for the
offence punishable u/s.138 of the Negotiable Instruments
56
Act, on the main ground that the cheque was not said to
have been issued for legally recoverable debt and the court
has accepted the contention of the accused and held that
the accused respondent has proved by means of
preponderance of probabilities with reference to existence of
debt or liability, the same has to be tested by this court as
to whether the said observation made by the trial Court is
proper and correct. Therefore, I feel it just and necessary
to grant Special Leave to prefer an appeal by condoning
delay.
With the above said reasons, I pass the following:
ORDER
(a) The legal question raised in this case as to whether the provisions of Limitation Act, particularly Sections 4 to 24 are applicable to the applications filed u/s.378(4) & (5) of the Act, is answered in the 'Affirmative' holding that the provisions of Sections 4 to 24 of the Limitation Act are applicable for the applications filed u/s.378(4) and (5) of Cr.PC.
57
(b) IA No.1/2013 filed for Special Leave and IA No.1/2012 filed for condonation of delay of 34 days in filing the Special Leave application are hereby allowed. Consequently, the appeal is admitted. The records of the trial Court has already been received. Therefore, the appeal has to be listed for final hearing.
Accordingly, office to list the appeal for final hearing.
Sd/-
JUDGE PL*