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TMI Blog2021 (12) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income Tax Act,1961, alleging falsification of books of accounts and documents while evading tax. By an order dated 07/10/2017, the Court of Judicial Magistrate First Class at Vasco da Gama dismissed the complaint under Section 256 of the Cr.P.C. and the respondent stood acquitted. 3. In order to challenge the order of acquittal, the applicant as the original complainant could file an application for grant of special leave to appeal before this Court under Section 378(4) of Cr.P.C. As per Section 378(5) of the Cr.P.C., the applicant was required to file such an application seeking special leave to appeal within a period of six months computed from the date of the order of acquittal, as the complainant was a public servant. There is no dispute about the fact that the applicant filed the aforesaid application under Section 378(4) of the Cr.P.C. after the period of six months was already over. It is for this reason that the applicant filed the instant application for condonation of delay. The respondent claims that as per the position of law laid down by the Hon'ble Supreme Court in various judgments, there is no power in this Court to condone delay, so as to entertain such an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 29 (2) of the Limitation Act, since applicability of Sections 4 to 24 of the Limitation Act is not expressly excluded by such special law, this Court indeed has power to condone delay and that therefore, there is no substance in the objection raised on behalf of the respondent regarding maintainability of the present application. 7. On the basis that this Court can indeed entertain the present application, the learned Counsel appearing for the applicant made detailed submissions on facts in order to justify the claim of the applicant that sufficient case was made out for condonation of delay. 8. On the other hand, Mr. Vikram Nankani, learned Senior Counsel appearing for the respondent submitted that the sheet anchor of the submissions made on behalf of the applicant, was the judgment of the Hon'ble Supreme Court in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra), but, the said judgment was rendered in ignorance of an earlier judgment of three Hon'ble Judges of the Supreme Court in the case of Hukumdev Narain Yadav v/s. Lalit Narain Mishra [(1974) 2 SCC 133]. In the said larger Bench judgment, pronounced prior to the judgment of two Hon'ble Judges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel appearing for the respondent submitted that the view taken in the said judgment, despite noticing the judgment of three Hon'ble Judges of the Supreme Court in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra (supra) and subsequent judgment in the case of Gopal Sardar v/s. Karuna Sardar (supra), was a wrong view and that the said judgment of the learned Single Judge of this Court ought to be treated as per incuriam. 11. On this basis, it was submitted that applying the test laid down in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra (supra), it ought to be held that this Court does not have the jurisdiction to condone delay and to entertain an application for a grant of special leave to appeal after the period of six months when the complainant is a public servant and 60 days in every other case. In other words, it is submitted that Section 5 of the limitation Act would not apply and that therefore, the present application for condonation of delay is not maintainable and accordingly it deserves to be dismissed. It was further submitted that if this Court rejects the aforesaid contention raised on behalf of the respondent, even on facts the applicant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limitation Act, 1963, reads as follows: "29. Savings.-(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872). (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 insofar as, and to the extent to which, they are not expressly excluded by such special or local law. (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4) Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend." 17. Section 378 of the Cr.P.C. reads as follows: "378. Appeal in case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from that order of acquittal shall lie under sub- section (1) or under sub- section (2)." 18. A perusal of Section 29(2) of the Limitation Act, quoted above shows that even in case of a special law the provisions contained in Sections 4 to 24 of the said Act would apply insofar as and to the extent to which they are not expressly excluded by such special law. The Hon'ble Supreme Court in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra) analyzed the meaning to be attributed to the words "expressly excluded". In paragraph 7 of the said judgment in the case of Mangu Ram and others v/s. Municipal Corporation of Delhi (supra), the Hon'ble Supreme Court proceeded on the position of law accepted in Kaushalya Rani v/s. Gopal Singh (supra) that Section 417 in the earlier CrP.C., similar to Section 378 in the present Cr.P.C., was a special law as a specific period of limitation had been specified, different from that provided in the Limitation Act. Therefore, the Hon'ble Supreme Court proceeded on the basis that an application for special leave to appeal against an order of acquittal was covered by a special law and the only question was, as to whether app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have the power to entertain it. ....." 20. Although, the judgment of the learned Single Judge of this Court in the case of Sagunabai Lahanu Shende v/s. Patru Goma Lengure and others (supra) does not in terms refer to the aforesaid 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), the logic employed while holding that Section 5 of the Limitation Act would apply to an application for special leave to appeal filed under Section 378 (4) of the Cr.P.C. is the same. In the case of Ramkrishna Jairam Damdar v/s. Savita w/o. Ramkrishan Damdar and another (supra), the learned Single Judge of this Court has referred to the judgments of the Hon'ble Supreme Court in the cases of Kaushalya Rani v/s. Gopal Singh and Mangu Ram and others v/s. Municipal Corporation of Delhi (supra) while holding that Section 5 of the Limitation Act would indeed be available and this Court could exercise power to condone delay in filing application for special leave to appeal. These judgments do not take note of the earlier judgment of three Hon'ble Judges of the Supreme Court in the case of Hukum Dev Narain Yadav v/s. Lalit Nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Supreme Court was concerned with the provisions of the Representation of the People Act,1951. By referring to Section 29(2) of the Limitation Act, the Bench of three Hon'ble Judges of the Supreme Court considered the true meaning and purport of the words "expressly excluded" as stated in Section 29(2) of the Limitation Act. In that context, the Hon'ble Supreme Court in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra(supra) held as follows: "17. Though s. 29(2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought to our notice where s. 29(2) has been made applicable to an election petition filed under s. 81 of the Act by virtue of which either ss. 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under s. 81 of the Act, s. 29 (2) would be attracted, and what we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the filing of election petitions and their trial. 18. It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is not what s. 29(2) of the Limitation Act says, because it provides that ss. 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. If none of them are excluded, all of them would become applicable. Whether those sections are applicable is not determined by the terms of those sections, but by their applicability or inapplicability to the proceedings under the special or local law. A person who is a minor or is insane or is an idiot cannot file an election petition to challenge an election, nor is there any provision in the Act for legal representation of an election petitioner or respondent in that petition who dies, in order to make s. 16 of the Limitation Act applicable. The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Hukumdev Narain Yadav, Anwari Basavaraj Patil and M/s. Parson Tools (supra), it should be construed that there has been exclusion of application of Section 5 of the Limitation Act to an application under Section 8 of the Act. In view of what is stated above, the non- applicability of Section 5 of the Limitation Act to the proceedings under Section 8 of the Act is certain and sufficiently clear. Section 29(2) of the Limitation Act as to the express exclusion of Section 5 of the Limitation Act and the specific period of limitation prescribed under Section 8 of the Act without providing for either extension of time or application of Section 5 of the Limitation Act or its principles can be read together harmoniously. Such reading does not lead to any absurdity or unworkability or frustrating the object of the Act. At any rate in the light of the Three-Judge Bench decision of this Court in Hukumdev Narain Yadav case (supra) and subsequently followed in Anwari Basavaraj Patil case (supra), even though special or local law does not state in so many words expressly that Section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the scheme of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice of this Court when Mangu Ram case was decided. In the light of the three-Judge Bench decision of this Court in Hukumdev Narain Yadav we do not find any good reason to take a different view." 27. It is significant that the position of law as elucidated in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra (supra) has been approved and followed in a number of subsequent judgments as contended by the learned Senior Counsel appearing on behalf of the respondent and noted herein above. In fact, the judgment of the Bench of two Hon'ble Judges of the Supreme Court in the aforesaid case of Gopal Sardar v/s. Karuna Sardar(supra) was quoted with approval in subsequent Constitution Bench judgment of the Supreme Court in the case of Girnar Traders v/s. State of Maharashtra and others [(2011) 3 SCC 1] 28. Even in the case of Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper and another v/s. Excise and Taxation Officer, Sunder Nagar / Assessing Authority [Judgment and order dated 25/10/2019 passed by the Hon'ble Supreme Court in Civil Appeal Nos. 8276-8277 of 2019], upon which the learned Counsel appearing for the applicant - Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself, which alone should govern the several matters provided by it. 31. In this context, a perusal of the judgment of the learned Single Judge of this Court in the case of M/s. Sharmaji Textiles v/s. M/s. Sandeep Traders and others (supra) would show that although the judgments of the Hon'ble Supreme Court in the case of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra(supra) and Gopal Sardar v/s. Karuna Sardar (supra) are noted, despite what is specifically held in paragraph 14 of the Gopal Sardar v/s. Karuna Sardar (supra), the learned Single Judge has proceeded to hold that the decision of a 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) had not been disturbed. 32. With great respect, I am unable to agree with the aforesaid finding rendered by the learned Single Judge of this Court in the case of M/s. Sharmaji Textiles v/s. M/s. Sandeep Traders and others (supra). If the view expressed in the said judgment would have been in ignorance of the aforesaid judgments of the Hon'ble Supreme Court in the cases of Hukum Dev Narain Yadav v/s. Lalit Narain Mishra(supra) and Gopal Sardar v/s. Karuna S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(supra)? 4) Whether judgment of the learned Single Judge in the case of M/s. Sharmaji Textiles v/s. M/s. Sandeep Traders and others (supra) correctly holds that the judgment of the Hon'ble Supreme Court in the case of Gopal Sardar v/s. Karuna Sardar (supra) 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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