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2021 (12) TMI 766 - HC - Income TaxAppeal in case of acquittal - prosecution u/s 277A - application seeking condonation of delay in filing an application for grant of special leave to appeal from an order of acquittal under Section 378 (5) of the Code of Criminal Procedure (Cr.P.C.) - alleging falsification of books of accounts and documents while evading tax - complaint under Section 256 of the Cr.P.C. and the respondent stood acquitted - maintainability of the present application for condonation of delay - HELD THAT - There is no controversy before this Court about the fact that an application for special leave to appeal on behalf of the applicant - Department as the complainant in the present case is governed by special law found in Section 378(4) and (5) of the Cr.P.C. In the case where the complainant is a public servant, as in the present case, the period of limitation is six months and in every other case it is 60 days under Section 378(5) of the Cr.P.C. In this context when the law laid down by the Bench of three Hon ble Judges in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra 1973 (12) TMI 92 - SUPREME COURT and followed in Gopal Sardar v/s. Karuna Sardar 2004 (3) TMI 743 - SUPREME COURT , as also in other subsequent judgments, is perused and appreciated, this Court finds that the test to be applied for examining as to whether a special law expressly excludes applicability of Sections 4 to 24 of the Limitation Act, is not that such specific provisions must necessarily be excluded by referring to them, but the test to be applied would be the one specified by the Bench of three Hon ble Judges of the Supreme Court in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra(supra) i.e. by analyzing the scheme of the special law, the nature of remedy provided therein as the legislature intended it to be a complete Code by itself, which alone should govern the several matters provided by it. A very significant and important question regarding power and jurisdiction of this Court arises in the present matter. Considering the views expressed in the abovementioned judgments of the Hon ble Supreme Court governing the field, we see no option but to resort to Rule 8 of Chapter I of the Bombay High Court Appellate Side Rules, 1960, to make a reference to two or more judges of this Court, on questions framed herein below. The papers of this case be placed before the Hon ble the Chief Justice for the matter to be heard more advantageously by a bench of two or more judges, on the following questions 1) Whether Sections 4 to 24 of the Limitation Act, 1963, stand expressly excluded under Section 378(4) and (5) of the Cr.P.C. as special law for appeals against acquittal to be filed by the complainant, by operation of Section 29(2) of the Limitation Act, 1963? 2) Whether the Judgment of a Bench of two Hon ble Judges of the Supreme Court rendered in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi 1975 (10) TMI 102 - SUPREME COURT is per incuriam, in view of the earlier judgment of a Bench of three Hon ble Judges in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra(supra)? 3) Whether judgment of the Hon ble Supreme Court in the case of Gopal Sardar v/s. Karuna Sardar 2004 (3) TMI 743 - SUPREME COURT holds that judgment of two Hon ble Judges of the Supreme Court in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra) is not good law in view of the aforesaid earlier judgment of the Bench of three Hon ble Judges of Supreme Court in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra 1973 (12) TMI 92 - SUPREME COURT ? 4) Whether judgment of the learned Single Judge in the case of M/s. Sharmaji Textiles v/s. M/s. Sandeep Traders and others 2009 (1) TMI 931 - BOMBAY HIGH COURT correctly holds that the judgment of the Hon'ble Supreme Court in the case of Gopal Sardar v/s. Karuna Sardar 2004 (3) TMI 743 - SUPREME COURT has not disturbed the earlier judgment of the Bench of two Hon ble Judges of the Supreme Court in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra)? 5) Whether the test laid down in Hukum Dev Narain Yadav v/s. Lalit Narain Mishra(supra) by the Hon ble Supreme Court must be applied to the applications for special leave to appeal filed under Section 378 (4) and (5) of the Cr.P.C. in the context of Section 29(2) of the Limitation Act, 1963? 6) Whether upon applying the test laid down by the Hon ble Supreme Court in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra(supra) i.e. considering the scheme of the special law under Section 378(4) and (5) of the Cr.P.C. pertaining to applications for special leave to appeal by complainants, nature of the remedy provided therein, intending it to be a complete Code in itself, it can be said that Sections 4 to 24 of the Limitation Act, 1963, are excluded in their applicability to such applications for special leave to appeal? 7) In the light of the above, whether the application for condonation of delay filed by the applicant - Department is maintainable?
Issues Involved:
1. Maintainability of the application for condonation of delay. 2. Power of the court to condone delay under Section 378(5) of the Cr.P.C. 3. Applicability of Section 5 of the Limitation Act, 1963. 4. Conflict between judgments of the Supreme Court. 5. Interpretation of "expressly excluded" in the context of Section 29(2) of the Limitation Act. 6. Scheme and nature of the special law under Section 378(4) and (5) of the Cr.P.C. Issue-wise Detailed Analysis: 1. Maintainability of the Application for Condonation of Delay: The respondent raised an objection regarding the maintainability of the application for condonation of delay in filing an application for special leave to appeal under Section 378(5) of the Cr.P.C. The applicant argued that the objection lacked substance and claimed that sufficient cause for condonation was made out based on the facts stated. 2. Power of the Court to Condon Delay under Section 378(5) of the Cr.P.C.: The applicant contended that the court has the power to condone delay, relying on various judgments, including Mangu Ram v/s. Municipal Corporation of Delhi, which interpreted the applicability of Section 5 of the Limitation Act, 1963. The respondent, however, argued that the Supreme Court's judgments indicated that the court does not have the power to condone delay beyond the six-month period specified in Section 378(5) of the Cr.P.C. 3. Applicability of Section 5 of the Limitation Act, 1963: The applicant's counsel cited the judgment in Mangu Ram, which held that the language of Section 378(5) did not specifically exclude the applicability of Section 5 of the Limitation Act. Therefore, the court has the power to condone delay. The respondent countered with the judgment in Hukumdev Narain Yadav v/s. Lalit Narain Mishra, which suggested that the exclusion of Sections 4 to 24 of the Limitation Act does not require express reference in the special law. 4. Conflict Between Judgments of the Supreme Court: The respondent argued that the judgment in Mangu Ram was rendered in ignorance of the earlier judgment in Hukumdev Narain Yadav, which was delivered by a larger bench. The Supreme Court in Hukumdev Narain Yadav held that the exclusion of Sections 4 to 24 of the Limitation Act should be determined by examining the scheme of the special law. 5. Interpretation of "Expressly Excluded" in the Context of Section 29(2) of the Limitation Act: The court analyzed the interpretation of "expressly excluded" as stated in Section 29(2) of the Limitation Act. The judgment in Mangu Ram held that mere provision of a period of limitation does not displace the applicability of Section 5. However, the judgment in Hukumdev Narain Yadav emphasized examining the scheme of the special law to determine the exclusion of Sections 4 to 24. 6. Scheme and Nature of the Special Law under Section 378(4) and (5) of the Cr.P.C.: The court considered whether the scheme and nature of the special law under Section 378(4) and (5) of the Cr.P.C. intended it to be a complete code by itself, thereby excluding the applicability of Sections 4 to 24 of the Limitation Act. The judgment in Hukumdev Narain Yadav provided a test to determine this exclusion, which the court applied to the present case. Conclusion: The court found that a significant question regarding the power and jurisdiction of the court arises in this matter. The papers were ordered to be placed before the Chief Justice for the matter to be heard by a bench of two or more judges. The questions framed for consideration included whether Sections 4 to 24 of the Limitation Act are expressly excluded under Section 378(4) and (5) of the Cr.P.C., whether the judgment in Mangu Ram is per incuriam, and whether the test laid down in Hukumdev Narain Yadav should be applied to applications for special leave to appeal under Section 378(4) and (5) of the Cr.P.C.
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