2024 (3) TMI 774 - HC - Income Tax

High court power or jurisdiction to condone the delay - Condonation of delay in instituting an application for grant of leave to appeal against an acquittal or entertaining the appeal against acquittal - HELD THAT - Upon due consideration, we are satisfied that Mohd. Abaad Ali 2024 (2) TMI 1012 - SUPREME COURT considers and answers all the vital arguments raised in this reference and, therefore, this reference will have to be disposed of by adopting the binding reasoning therein and holding that this Court has the power or jurisdiction to condone the delay in filing an application seeking leave to appeal against an acquittal or in entertaining an appeal against acquittal under the Code of 1973. Thus we dispose of this reference by holding that the application for condonation of delay in seeking special leave to appeal against acquittal filed by the applicant Department is maintainable. The questions framed in the learned Single Judge's order 2021 (12) TMI 766 - BOMBAY HIGH COURT stand answered by the decision of the Hon'ble Supreme Court in Mohd. Abaad Ali's case supra and there is no point in us repeating those answers.

Issues Involved:
1. Maintainability of the application seeking condonation of delay.
2. Applicability of Sections 4 to 24 of the Limitation Act, 1963, to appeals against acquittal u/s 378(4) and (5) of Cr.P.C.
3. Whether the Supreme Court's judgment in Mangu Ram v/s. Municipal Corporation of Delhi is per incuriam.
4. Interpretation of the judgment in Gopal Sardar v/s. Karuna Sardar.
5. Applicability of the test laid down in Hukum Dev Narain Yadav v/s. Lalit Narain Mishra.
6. Maintainability of the application for condonation of delay by the applicant department.

Summary:

1. Maintainability of the Application Seeking Condonation of Delay:
The applicant sought special leave to appeal against the order dated 07.10.2017, which dismissed its criminal complaint and acquitted the respondent. The application was filed 480 days beyond the prescribed period of limitation, leading to the filing of Criminal Misc. Application No. 253/2019 for condonation of delay. The respondent raised a preliminary objection regarding the maintainability of this application, arguing that there is no power to condone the delay in such matters.

2. Applicability of Sections 4 to 24 of the Limitation Act, 1963:
The learned Single Judge referred the matter to a larger bench to address the significant question of whether Sections 4 to 24 of the Limitation Act, 1963, are expressly excluded under Section 378(4) and (5) of Cr.P.C. The bench considered several decisions, including the Supreme Court's judgment in Mohd. Abaad Ali v/s. Directorate of Revenue Prosecution Intelligences, which held that the benefit of Section 5 of the Limitation Act can be availed in an appeal against acquittal u/s 378 of Cr.P.C.

3. Whether Mangu Ram v/s. Municipal Corporation of Delhi is Per Incuriam:
The respondent contended that the judgment in Mangu Ram is per incuriam because it did not consider the earlier judgment in Hukum Dev Narain Yadav. The Supreme Court in Mohd. Abaad Ali addressed this contention, explaining that Mangu Ram correctly distinguished Kaushalya Rani and held that Section 29(2) of the Limitation Act, 1963, does not exclude the application of Section 5.

4. Interpretation of Gopal Sardar v/s. Karuna Sardar:
The respondent argued that Gopal Sardar suggests that Mangu Ram is not good law. However, the Supreme Court in Mohd. Abaad Ali rejected this argument, clarifying that Gopal Sardar dealt with a different context and did not overrule Mangu Ram.

5. Applicability of the Test Laid Down in Hukum Dev Narain Yadav:
The bench considered whether the test laid down in Hukum Dev Narain Yadav should be applied to applications for special leave to appeal u/s 378(4) and (5) of Cr.P.C. The Supreme Court in Mohd. Abaad Ali held that the test does not exclude the applicability of Section 5 of the Limitation Act to such applications.

6. Maintainability of the Application for Condonation of Delay by the Applicant Department:
The Supreme Court's decision in Mohd. Abaad Ali answered all contentions raised by the respondent, affirming that the High Court has the power to condone the delay in filing an application seeking leave to appeal against an acquittal. The bench concluded that the application for condonation of delay filed by the applicant department is maintainable.

Conclusion:
The reference was disposed of by holding that the application for condonation of delay is maintainable. The matter was directed to be placed before the learned Single Judge to decide on the merits and demerits of the cause shown in the application.

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