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TMI Blog2024 (3) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... ing condonation of delay. 4. Upon receipt of the notice on behalf of the respondent, a preliminary objection was raised to the very maintainability of the application seeking condonation of delay, inter alia, on the ground that in such matters, there is no power to condone the delay and, consequently, maintain an application seeking condonation of delay. 5. The learned Single Judge of this Court (Manish Pitale, J.) made an order dated 16.11.2021 in the Criminal Misc. Application No. 253 of 2019 observing that a very significant and important question regarding the power and jurisdiction of this Court arises in the present matter. After considering several decisions on the subject, the learned Single Judge, by resorting to Rule 8 of Chapter I of the Bombay High Court Appellate Side Rules, 1960, concerning reference to two or more Judges of this Court, directed that the papers of this case be placed before the Hon'ble the Chief Justice for the matter to be heard more advantageously by the 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 spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Judl.-I) informed the Registrar (Judicial), High Court of Bombay at Goa, that the Hon'ble the Chief Justice has been pleased to direct to place Criminal Misc. Application No. 253 of 2019 before the Regular Division Bench for answering the questions framed by the Hon'ble Court (Coram: Manish Pitale, J.) in Criminal Misc. Application No. 253 of 2019 by order dated 16.11.2021 at the High Court of Bombay at Goa. 7. Accordingly, the Bench took up the matter for hearing the reference. At the stage when this matter was substantially argued, the Hon'ble Supreme Court, in the case of Mohd. Abaad Ali and Anr. V/s. Directorate of Revenue Prosecution Intelligences 2024 SCC OnLine SC 162, has held that the benefit of Section 5, read with Sections 2 and 3 of the Limitation Act, 1963, can be availed in an appeal against acquittal under Section 378 of CrPC or at any other place in the Code. 8. Upon the decision in Mohd. Abaad Ali (supra) being brought to the notice of the learned Counsel for the parties, they requested a short adjournment to consider the said decision and, if necessary, to file an additional synopsis of arguments in support of the respective positions. The matter wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, we are satisfied that Mohd. Abaad Ali (supra) 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. 12. On behalf of the respondent, it was contended that the provisions of Section 378 constitute a special law, and consequently, in terms of Section 29(2) of the Limitation Act, 1963, the provisions of Section 5 of the Limitation Act would stand excluded. The respondent contended that Mangu Ram (supra) was per incuriam because Hukumdev (supra) was not considered. Mr Nankani also referred to the comment in Gopal Sardar (supra) that Hukumdev (supra) was not considered in Mangu Ram (supra). He submitted that this comment suggests that even the Hon'ble Supreme Court agreed that Mangu Ram (supra) was decided per incuriam and that the entire findings in Mangu Ram (supra) were wrong. 13. Mr Nankani also submitted that Mangu Ram (supra) had not speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n prescribed in the first schedule of the Limitation Act, the applicability of the Limitation Act will be only regarding Section 4 and Sections 9 to 18 and 22 of the Limitation Act. The meaning thereby afforded is that Section 5 of the old Act was expressly excluded in cases where the special law or local law provides for the period of limitation. The submission based on Kaushalya Rani (supra) was explicitly rejected as being "not correct". 17. Mohd. Abaad Ali (supra) explains that subsequent to the decision in Kaushalya Rani (supra), Mangu Ram (supra), while dealing with a similar problem of limitation in an appeal against acquittal, distinguished Kaushalya Rani (supra) as dealing with the old Code of 1898 and the old Limitation Act of 1908 where the provisions were differently worded. The Court held that under Section 378 of the new Code read with Section 29(2) of the Limitation Act, 1963, though limitation is prescribed, yet Section 29(2) of the 1963 Act does not exclude the application of Section 5. 18. Mohd. Abaad Ali (supra) explained that the crucial difference here is the applicability of Section 5 of the Limitation Act. In both the Limitation Acts (old and new), the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a belated application made under Section 8 given the language used in Section 8 of the West Bengal Land Reforms Act. 22. The Hon'ble Supreme Court held that the bare comment that Hukumdev (supra) was not considered by Mangu Ram (supra) would not mean that all the findings of the Court that arrived in Mangu Ram (supra) were wrong. The Court explained that we must appreciate Gopal Sardar (supra) for what it decides and the facts and the context on which the decision is based. Finally, the Court held that neither Hukumdev (supra) nor Gopal Sardar (supra) would help the case of the appellant, contending that the High Court had no power to condone the delay in instituting an application for grant of leave to appeal against an acquittal or entertaining the appeal against acquittal as both these cases dealt with special laws which prescribed a period of limitation. 23. The Hon'ble Supreme Court held that the expression of the language contained in the law was very clear and that under no circumstances could the delay be condoned. After all this, the Court held that there was no such exclusionary provision under Section 378 of CrPC or any other place in the Code based on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying to pick holes in the reasoning of the Hon'ble Supreme Court in Mohd. Abaad Ali (supra). This is impermissible. A binding precedent of the Hon'ble Supreme Court can neither be diluted nor revisited by the High Court, inter alia, on the ground that a particular issue had not been agitated earlier or that a particular argument was allegedly not considered by the Hon'ble Supreme Court. 28. In the State of Gujarat and Anr. V/s. Justice R.A. Mehta (retired) & Ors. (2013) 3 SCC 1, the Hon'ble Supreme Court has explained that there can be no dispute with regard to the settled proposition that the judgment of the Hon'ble Supreme Court is binding, particularly even if a particular issue may not have been agitated or a particular argument may not have been considered, as long as the argument subsequently advanced has actually been decided. The decision, therefore, would not lose its authority "merely because it was badly argued, inadequately considered or fallaciously reasoned". The case must be considered taking note of the ratio decidendi of the same, i.e. the general reasons or the general grounds upon which the decision of the Court is based, or on the test or abstra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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