Patna High Court - Orders
Dadan Paswan vs The State Of Bihar on 11 June, 2019
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4724 of 2018
Arising Out of PS. Case No.-28 Year-2017 Thana- GRIYAK District- Nalanda
======================================================
Santosh Kumar S/o Sri Madan Prasad Singh @ Madan Singh, R/o Katauna,
P.S.- Katrisarai, District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 300 of 2019
Arising Out of PS. Case No.-200 Year-2018 Thana- GOVERNMENT OFFICIAL COMP.
District- Rohtas
======================================================
Dadan Paswan son of Ram Vriksh Paswan Resident of Village-Karup, P.S.-
Seosagar, District - Rohtas at Sasaram
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 196 of 2019
Arising Out of PS. Case No.-202 Year-2018 Thana- GOVERNMENT OFFICIAL COMP.
District- Rohtas
======================================================
Sajjan Paswan @ Sajan Paswan Son of Late Ram vriksh Paswan @ Ram
Brita Paswan Resident of Village-Karup, Police Station-Seosagar, District-
Rohtas at Sasaram.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 4629 of 2018
Arising Out of PS. Case No.-50 Year-2017 Thana- SAHPUR District- Bhojpur
======================================================
Rajesh Yadav @ Yogesh Yadav son of Late Rameshwar Yadav R/O Village-
+PS-Shahpur, Distt-Bhojpur.
... ... Appellant/s
Versus
The State Of Bihar ... ... Respondent/s
======================================================
Patna High Court CR. APP (SJ) No.4724 of 2018(8)
2/19
Appearance :
(In CRIMINAL APPEAL (SJ) No. 4724 of 2018)
For the Appellant/s : Mr.Anil Kumar, Adv
For the Respondent/s : Mr. Shyed Ashfaque Ahmad, APP
(In CRIMINAL APPEAL (SJ) No. 300 of 2019)
For the Appellant/s : Mr.Raghunandan Kumar Singh,Adv
For the Respondent/s : Mr.Abhay Kumar, APP
(In CRIMINAL APPEAL (SJ) No. 196 of 2019)
For the Appellant/s : Mr.Raghunandan Kumar Singh, Adv
For the Respondent/s : Mr. Zeyaul Hoda, APP
(In CRIMINAL APPEAL (SJ) No. 4629 of 2018)
For the Appellant/s : Mr.Manoj Kumar, Adv
For the Respondent/s : Mr. Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
8 17-06-2019In all these four appeals common question has arisen, on account thereof, are being decided conjointly. All these criminal appeals have been filed under Section 89 of the Excise Act beyond the period so prescribed and on account thereof, it is being seriously doubted at the admission stage itself by the office whether these appeals could be entertained after condoning the delay in accordance with Section 5 of the Limitation Act in the background of the respective I.A petitions having same and similar prayer.
2. Heard learned counsels for the respective appellants as well as learned APP.
3. Before coming to right plank, ordinarily, all the criminal prosecutions are to be carried out in accordance with CrPC save and except the Special Enactments, posing itself to be self contained Act, more or less, prescribing provisions commanding the issue with non obstante clause and that Patna High Court CR. APP (SJ) No.4724 of 2018(8) 3/19 happens to be reason behind presence of Section 4 (2), 5 of Criminal Procedure Code acknowledging the same. For better appreciation, the relevant provisions are quoted below:-
" Section 4. Trial of offences under the Indian Penal Code and other laws.
1. All offences under the Indian Penal Code (45 of 1860 ) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
2. All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Section 5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
4. With regard to proper identification of nature of the statute, it has been explained in Life Insurance Corpn. Of India v. D.J. Bahadur reported in (1981) 1 SCC 315 wherein under paragraph-52, it has been held as follows:-
"52. In J. K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of Uttar Pradesh :
(1961)ILLJ540SC , this Court observed :
The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men Patna High Court CR. APP (SJ) No.4724 of 2018(8) 4/19 and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect.
We have already shown that the Industrial Employment (Standing Orders) Act is a special Act dealing with a specific subject, namely with conditions of service, enumerated in the Schedule, of workmen in industrial establishments. It is impossible to conceive that Parliament sought to abrogate the provisions of the Industrial Employment (Standing Orders) Act embodying as they do hardwon and precious rights of workmen and prescribing as they do an elaborate procedure, including a quasi-judicial determination, by a general, incidental provision like Section 79(c) of the Electricity (Supply) Act. It is obvious that Parliament did not have before it the Standing Orders Act when it passed the Electricity (Supply) Act and Parliament never meant that the Standing Orders Act should stand pro tanto repealed by Section 79(c) of the Electricity Supply Act. We are clearly of the view that the provisions of the Standing Orders Act must prevail over Section 79(c) of the Electricity Supply Act, in regard to matters to which the Standing Orders Act applies.
I respectfully agree and apply the reasoning and the conclusion to the near-identical situation before me and hold that the ID Act relates specially and specifically to industrial disputes between work men and employers and the L.I.C. Act, like the Electricity (Supply) Act, 1948, is a general statute which is silent on workmen's disputes, even though it may be a special legislation regulating the take-over of private insurance business.
5. The word used under Section 5 of the CrPC "
specific provision to the contrary" has been dealt with by the Patna High Court CR. APP (SJ) No.4724 of 2018(8) 5/19 Constitution Bench in Maru Ram v. Union Of India reported in 1981(1) SCC 107 wherein under following paragraphs it has been held as under:-
" 35. Section 1(2) of the Criminal Procedure Code, 1898, is the previous incarnation of Section 5 of the Present Code and contains virtually the same phraseology. The expression 'specific provision to the contrary' in the Code or 1898 was considered in the two Full Bench Decisions (supra). The setting in which the issue was raised was precisely similar and the meaning of 'specific provision to the contrary" was considered by Young, C. J, in the Lahore case where the learned Judge observed: AIR 1940 Lah 129.
The word 'specific' is defined to Murray's New English Dictionary as 'precise or exact in respect of fulfilment, conditions or terms; definite, explict'.
36. In a similar situation, the same words fell for decision to the Allahabad case where Braund, J., discussed the meaning of 'specific provision' in greater detail and observed:
I have, I confess, entertained some doubt as to what exactly the words 'specific provision' mean. I think first, that they must denote something different from the words 'express provision'. For a provision of a statute to be an 'express' provision affecting another statute or part of it, it would have, I think, to refer to so many words to the other statute or to the relevant portion of it and also to the effect intended to be produced on it. Failing this, it could hardly be said to be ' express'....
But the word 'specific' demotes, to my mind, something less exacting than the word 'express'. It means, I think, a provision which 'specifies' that some 'special law is to be 'affected' by that particular provision. A dictionary meaning of the verb 'to specify' as given in Murray's New English Dictionary, is to mention, Patna High Court CR. APP (SJ) No.4724 of 2018(8) 6/19 speak of or name (something) definitely or explicitly; to set down or state categorically or particularly...' and a meaning of the adjective 'specific' in the same dictionary is 'precise ... definite, explicit... exactly named or indicated, or capable of being so, precise, particular.' What I think the words 'specific provision' really mean therefore is that the particular provision of the Criminal Procedure Code must, in order to 'affect' the 'special... law', clearly indicate, to itself and not merely by implication to be drawn from the statute generally, that the 'special law"
in question is to be affected without necessarily referring to that 'special law, or the effect on it intended to be produced in express terms, Lord Hatherley to (1878) 3 AC 933 has defined the word 'specific' in common parlance of language as meaning 'distinct from general'.... 'It would, no doubt, be possible to multiply illustrations of analogous uses of the words 'specity' and 'specific'. But this is I think sufficient to show that, while requiring something less than what is 'express, they nevertheless require something which is plain; certain and intelligible and not merely a matter of inference or implication to be drawn from the statute generally. That, to my mind, is what is meant by the word 'specific' to Section 1(2), Criminal P. C.
37. In an English case, Re Net Book Agreement, (1962) 3 All ER 751 Buckley, J., has interpreted the word 'specific' to mean explicit and definable. While Indian usage of English words often loses the Atlantic flavour and Indian Judges owe their fidelity to Indian mean tog or foreign words and phrases, here East and West meet and 'specific' is specific enough to avoid being vague and general. Fowler regards this word related to the central notion of species as distinguished from genus and says that it is 'often resorted to by those who have no clear idea of their meaning but hold it to diffuse an air of educated precision. (Fowler's Modern English Usage, 2nd Edn. p. 574). Stroud (Stroud's Patna High Court CR. APP (SJ) No.4724 of 2018(8) 7/19 Judicial Dictionary, Vol. 4, 3rd Edn. p. 2836) says 'specifically...' means 'as such'. Black (Black's Law Dictionary, 4th Edn. p. 1571) gives among other things, the following meaning for 'specific: definite, explicit; of an exact or particular nature... particular; precise. While legalese and English are some times enemies we have to go by judiciales which is the draftsman's lexical guide.
38. The contrary view in the Bombay case, AIR 1941 Bom 148 is more assertive than explanatory, and ipse drat, even if judicial, do not validate themselves. We are inclined to agree with the opinion expressed in the Lahore and Allahabad cases (supra). A thing is specific if it is explicit. It need not be express. The antithesis is between 'specific' and 'indefinite' or 'omnibus' and between 'implied' and 'express'. What is precise, exact, definite and explicit, is specific. Sometimes, what is specific may also be special but yet they are distinct in semantics. From this angle, the Criminal Procedure Code is a general Code. The remission rules are special laws but Section 433A is a specific, explicit, definite provision dealing with a particular situation or narrow class of cases, as distinguished from the general run of cases covered by Section 432 Cr. P. C. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment. It follows that Section 433A applies in preference to any special or local law because Section 5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or local law. We have said enough to make the point that 'specific' is specific enough and even though 'special' to 'specific' is near allied and thin partition do their bounds divide' the two are different. Section 433A escapes the exclusion of Section 5.
6. Under the Code of Criminal Procedure, at Patna High Court CR. APP (SJ) No.4724 of 2018(8) 8/19 some occasion there does appearance exclusively with regard to prescribing the time limit with some sort of relaxation, however, at majority of occasions is inter-dependent over the Limitation Act, more particularly, the scheduled thereof, guides the issue, more particularly, relating to filing of the appeal, revision, under Article 136 thereof. In the aforesaid background there happens to be no hitch and hindrance in proper application of Limitation Act right from Section 4 to 24 including that of condonation of delay as prescribed under Section 5 of the Limitation Act exclusively. Moreover, any period so prescribed under Special Act has also been duly acknowledged under the Limitation Act, and for better appreciation Section 29(2) of the Limitation Act is being quoted below:-
29 (1) ******** (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.
7. In the aforesaid background, now the puzzle being Patna High Court CR. APP (SJ) No.4724 of 2018(8) 9/19 confronted at the present moment is to be seen and before that, it looks desirable to quote Section 89 of the Bihar Prohibition and Excise Act, 2016 which says as under:-
"89. Appeal.-- Any person aggrieved by any order of the Special Court may, within forty five days from the date of order, prefer an appeal in the High Court".
8. From plain reading of Section 89, it is apparent that there happens to be no obstinate clause having been applied thereto. That means to say, irrespective of the fact that there happens to be prescription of 45 days for filing an appeal but, there happens to be no specific exclusion by way of implication of the Section 5 of the Limitation Act. However, while interpreting so, the caution, as prescribed has also to be taken into consideration. For better appreciation, the relevant passage is quoted below:-
The basic principle of interpretation of Statute; As per principle of statutory interpretation by G. P. Singh, "......the Courts cannot interpret a statute the way they have developed the common law "which in a constitutional sense means judicially developed equity". In abrogating or modifying a rule of the common law the courts exercise " the same power of creation that built up the common law through its existence by the Judges of the past". The court can exercise no such power in respect of statutes. Therefore, in the task of interpreting and applying a statute, Judges have to be conscious that in the end the statute is the master Patna High Court CR. APP (SJ) No.4724 of 2018(8) 10/19 not the servant of the judgment and no Judge has a choice between implementing the law and disobeying it."
9. In Hukumdev Narain Yadav v. Lalit Narain Mishra reported in (1974) 2 SCC 133, it has been held as follows:-
"17. ... but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."
10. In Commissioner of Customs and Central Excise v.
Hongo India (P) Ltd reported in (2009) 5 SCC 791, wherein the issue was over applicability of Section 5 of the Limitation Act in condoning the delay relating to presentation of reference under unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the period of 180 days as prescribed under Sub-
Section(1) thereof, the matter has been discussed and for better appreciation relevant paragraphs are quoted below:-
Patna High Court CR. APP (SJ) No.4724 of 2018(8) 11/19 "30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court Under Section 35-G and reference application to the High Court Under Section 35-H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.
31. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd. : (2008) 3 SCC 73] The Commissioner of Customs, Central Excise, Noida was the Appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference Under Section 35-
H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. concluded that: (Punjab Fibres Ltd. case : (2008) 3 SCC 73], SCC p. 75, para 8)
8. ... the High Court was justified in holding that there was no power for condonation of delay in filing reference application.
32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35- H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the Patna High Court CR. APP (SJ) No.4724 of 2018(8) 12/19 preliminary limitation period for preferring an appeal. In the absence of any Clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
33. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision.
14. In the process, the Court also explained the expression 'expressly excluded' appearing in Section 29(2) of the Limitation Act, 1963 in the following manner:
34. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted, what we have to determine is whether the provisions of this Section are expressly excluded in the case of reference to the High Court.
35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the Patna High Court CR. APP (SJ) No.4724 of 2018(8) 13/19 legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
11. Though by subsequent amendment, High Court has been empowered to condone the delay but, no such provision was available before amendment and, the Hon'ble Apex Court answered in negative.
12. In Delhi Transport Corporation v. DTC Mazdoor Congress as reported in 1991 Supp (1) SCC 600, the Constitution Bench explained how to see and adjudge the applicability of a statute under the following paragraph:-
"255. It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. Patna High Court CR. APP (SJ) No.4724 of 2018(8) 14/19 It is an extension of the principle that when two interpretations are possible-one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made.
However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the Court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires an extensive additions and deletions. Not only it is no part of the court's duty to undertake such exercise, but it is beyond its jurisdiction to do so.
13. In Indore Development Authority v. Shailendra (Dead) Through Lrs and Ors as reported in AIR 2018 SC 824, it has been held:-
"44. While making statutory interpretation, inconsistency and repugnancy is to be avoided and harmonious construction has to be adopted. The construction to be adopted should be such, as would make the statute as a Patna High Court CR. APP (SJ) No.4724 of 2018(8) 15/19 whole, a consistent enactment. Such a construction would have the merit of avoiding any inconsistency or repugnancy, either within a given Section or as between a particular Section on the one hand and other parts of the statute on the other. It is the duty of the courts to avoid "a head-on clash", as held in Raj Krushna v. Binod Kanungo : AIR 1954 SC 202, at 203; Sultana Begum v. Premchand Jain : AIR 1997 SC 1006, at page 1109; Kailash Chandra v. Mukundi Lal, (2002) 2 SCC 67; and CIT v. Hindustan Bulk Carriers, : (2003) 3 SCC 57, at p. 74.
45. ***
46. ***
47. ***
48. *** 49 (a). Rule of literal construction lays down that words of a statute are first understood in their natural, ordinary or popular sense and phrases, and sentences are construed according to their grammatical meaning. The learned author G.P. Singh, in "Principles of Statutory Interpretation" (14th edition), at Page 91 onwards, has observed:
........Natural and grammatical meaning. The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary." "The true way", according to LORD BROUGHAM is, "to take the words as the Legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those Words is, either by the preamble or by the context of the words in question, controlled or alter "; and in the words of VISCOUNT HALDANE, L.C., if the language used "has a natural meaning we cannot depart from that meaning unless reading the statute as a whole, the context directs us to do so. In an oft-quoted passage, LORD WENSLEYDALE stated the Patna High Court CR. APP (SJ) No.4724 of 2018(8) 16/19 Rule thus: "In construing wills and indeed statutes and all written instruments, the grammatical and ordinary sense of the word is adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity, and inconsistency, but no further". And stated LORD ATKINSON: "In the construction of statutes, their words must be interpreted in their ordinary grammatical sense unless there be something in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in a special sense different from their ordinary grammatical sense". 28 VISCOUNT SIMON, L.C., said: "The golden Rule is that the words of a statute must prima facie be given their ordinary meaning". Natural and ordinary meaning of words should not be departed from "unless it can be shown that the legal context in which the words are used requires a different meaning". Such a meaning cannot be departed from by the judges "in the light of their own views as to policy" although they can "adopt a purposive interpretation if they can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy". For a modern statement of the rule, one may refer to the speech of LORD SIMON OF GLAISDALE in a case where he said: "Parliament is prima facie to be credited with meaning what is said in an Act of Parliament. The drafting of statutes, so important to a people who hope to live under the Rule of law, will never be satisfactory unless courts seek whenever possible to apply 'the golden rule' of construction, that is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition. Of course, Parliament is to be credited with good Patna High Court CR. APP (SJ) No.4724 of 2018(8) 17/19 sense; so that when such an approach produces injustice, absurdity, contradiction or stultification of statutory objective the language may be modified sufficiently to avoid such disadvantage, though no further". The Rules stated above have been quoted with approval by the Supreme Court.......
49(b). This Court, in Harbhajan Singh v. Press Council of India : AIR 2002 SC 1351, at 1354 has observed thus:
Legislature does not waste its words. Ordinary, grammatical and full meaning is to be assigned to the words used while interpreting a provision to honour the rule-
Legislature chooses appropriate words to express what it intends, and therefore, must be attributed with such intention as is conveyed by the words employed so long as this does not result in absurdity or anomaly or unless material
-intrinsic or external-is available to permit a departure from the rule.
14. So, from the judicial pronouncements as referred hereinabove in consonance with the literal meaning of the statute, it has become abundantly clear that court should not embark upon unless there happens to be ambiguity. So Section 89 as stood, did not allow any kind of interference with regard to condonation and that being so, there would not be any scope for attracting Section 5 of the Limitation Act.
15. Now the history of the Excise Act is to be seen. The old Act of 1915 has been repealed and replaced by Bihar Prohibition an Excise Act, 2016 having a sole aim to implement prohibition. In Original Act, appeal was to be entertained in Patna High Court CR. APP (SJ) No.4724 of 2018(8) 18/19 accordance with CrPC, having applicability of Limitation Act.
But by amendment, some sort of barrier is found axing upon the power, however, the Vires of the Act has been challenged and in the case of Confederation of Indian Alcoholic Beverage Companies & Anr. v. State of Bihar as reported in 2016(4) PLJR 369, the same has been declared ultra vires against which the State Government has filed SLP Nos.27949-29763/2016.
During pendency of aforesaid SLP, another amendment has been introduced from 2 October 2016 and that has also been put under Challenge under CWJC No. 8640/2016 which has also been tagged with with the aforesaid SLPs. That means to say, the Vires of the Act (amended Act) are subjudiced before the Apex Court.
16. The matter relating to entertainment of anticipatory bail petition having been completely banned under the amended Act has been subject to reference before the Full Bench in Cr.
Appeal (SJ) No. 431/2019 which has been decided on 17.05.2019 observing that stop gap arrangement so invented by the Division Bench in the case of Manish Kumar @ Lokesh Kumar v. State of Bihar as reported in 2017(4) PLJR 369 would remain effective till the vires of the Act is tested by the Apex Court. So, the issue in hand needs similar kind of Patna High Court CR. APP (SJ) No.4724 of 2018(8) 19/19 treatment till the matter is finally adjudicated upon by the Apex Court relating to above referred SLPs, the question of limitation is to be kept in abeyance.
17. Consequent thereupon, limitations are being condoned subject to aforesaid conditions. Accordingly, Interlocutory Applications bearing nos. 128/2019 filed in (Cr.Appeal (SJ) No.4629/2018), 140/2019 in Cr.Appeal (SJ) No.4724/2018), 01/2019 in Cr.Appeal (SJ) No.196/2019, and 01/2019 in Cr.Appeal (SJ) No.300/2019 are disposed of respectively in terms thereof.
18. Office is directed to list respective appeals under the heading 'for admission'.
(Aditya Kumar Trivedi, J)
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