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TMI Blog2024 (2) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... since the appeal was belated by 72 days. The delay condonation application was allowed by the Delhi High Court on 18.05.2016. 3. An application was then moved by the present appellant before the High Court under Section 482 of CrPC for recalling of the said order on grounds that Section 5 of the Limitation Act would not apply in case of an appeal against acquittal since the period of filing an appeal against acquittal, has been prescribed under Section 378(5) of CrPC itself, where there is no provision for condonation of delay. By order dated 20.01.2017 the Delhi High Court nonetheless dismissed the application for recall filed by the appellant, although no reasons were assigned while dismissing the application under Section 482. 4. This order has been challenged before us on the grounds that the High Court has committed a patent error in allowing the belated appeal against acquittal filed by public servant as the High Court has no powers to condone the delay since the provisions of the Limitation Act would not be applicable as Section 378 is a selfcontained Code as far as limitation is concerned since there is no period prescribed in the Limitation Act for filing a appeal agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 the order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. (5) If, in any case, the application under sub-section (3) 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). of old CrPC and Section 29(2) of the old Limitation Act i.e. Indian Limitation Act, 1908 held that Section 5 of the Limitation Act would not apply in an application for leave to appeal under sub-section 3 of Section 417 of the old CrPC before High Court, in as much as Section 417 is a special code in itself and the limitation prescribed therein is 60 days and the court has no power to relax such a limitation to condone the delay. Relying upon a full Bench judgment of the Bombay High Court [Anjanabai v. Yeshwantrao Daulatrao Dudhe ILR (1961) Bom 135] which held that Section 417(4) was special law within the meaning of Section 29(2) of the Limitation Act. Thus, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Section 29(2) of the Limitation Act, 1963 though a limitation is prescribed, yet Section 29(2) of 1963 Act, does not exclude the application of Section 5. Section 29(2) of Limitation Act, 1963 reads as under:- "(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." ( emphasis supplied ) The crucial difference here is of applicability of Section 5 of Limitation Act. In both the Limitation Acts, i.e. Limitation Act of 1908 and the present Limitation Act of 1963, the provision of extension of time of limitation is given in Section 5 of the two Acts. Whereas 1908 Act specifically states that Section 5 will not apply when the period of limitation is given in special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Sections 4 to 24, which would include Section 5, shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. Section 29, sub-section (2), clause (b) of the Indian Limitation Act, 1908 specifically excluded the applicability of Section 5, while Section 29, sub-section (2) of the Limitation Act, 1963, in clear and unambiguous terms, provides for the applicability of Section 5 and the ratio of the decision in Kaushalya Rani case can, therefore, have no application in cases governed by the Limitation Act, 1963, since that decision proceeded on the hypothesis that the applicability of Section 5 was excluded by reason of Section 29(2)(b) of the Indian Limitation Act, 1908. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29, sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law, if the applicant can show that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gopal Sardar (supra) dealt with the right of pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 which again prescribed three months limitation for a bargadar and four months for a 'raiyat' to make an application for pre-emption to the concerned authorities. 10. There can be no quarrel with the argument that where a special law prescribes a period of limitation, Section 5 of the Limitation Act would have no application, subject only to the language used in the special statute. The language prescribing a period of limitation is an important factor as well. For example, in the Representation of Peoples Act, 1951 Section 81 prescribes limitation for presenting an election petition as under :- "81. Presentation of petitions.-(1) An election petition calling in question any election may be presented on one or more of the grounds specified in 207[sub-section (1)] of Section 100 and Section 101 to the 208[High Court] by any candidate at such election or any elector 209[within forty13 five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The provisions of Section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117. ( emphasis supplied ) 11. Later, while dealing another special statute viz West Bengal Land Reforms Act, 1955 this Court in Gopal Sardar (supra) had an occasion to comment on Mangu Ram (supra) where it says that the decision of Hukumdev Narain Yadav (supra) was not brought to the notice of this Court when Mangu Ram (supra) was decided (we have discussed Mangu Ram in the preceding paragraphs). Much reliance has been placed by the learned counsel for the appellant Shri Agarwal on this observation of the Court. Hukumdev Narain Yadav as we have already discussed above relates to election laws which falls in an entirely different category, as far as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 8 is a statutory right besides being weak; it has to be exercised strictly in terms of the said section and consideration of equity has no place. On the facts found in these appeals, applications under Section 8 were not made within four months from the date of transfer but they were made four years and six years after the date of transfer respectively which were hopelessly barred by time. Benefit of Section 5 of the Limitation Act not being available to the applications made under Section 8, Section 3 of the Limitation Act essentially entails their dismissal." Neither Hukumdev Narain Yadav nor Gopal Sardar would help the case of the appellant as both these cases deal with special laws which prescribed a period of limitation and the expression of the language contained in the law is very clear that under no circumstances can such a limitation be condoned. The relevant provisions have already been discussed earlier. In the present case, there is no such exclusionary provision under Section 378 of CrPC, or at any other place in the Code. The benefit of Section 5 read with Sections 2 and 3 of the Limitation Act, 1963 can therefore be availed in an appeal against acquittal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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