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TMI Blog2023 (3) TMI 1557X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1963 stood excluded by the provisions of the Representation of People Act, 1951 or not. It has held that, Court has to see whether scheme of special law, nature of remedy of law show that the legislature intended to limit the provisions of the Limitation Act, 1963. Even if the special law does not exclude the provisions of the Limitation Act, 1963 by express reference, Court has to examine whether and to what extent the provisions of nature, subject matter and scheme for special law exclude their operation. The time period that has been stipulated in Section 21 of the Act of 2008 is the bone of contention in the present proceedings since the appellants are seeking to prefer an appeal which is beyond 90 days from the date of the impugned judgement and order of the Special Court. The impugned judgement and order of the Special Court is otherwise appealable in view of the same having finally disposed of the trial, convicting the appellants and sentencing the appellants to imprisonment. - It has been recognised by different authorities that, the doctrine of limitation is founded on considerations of public policy and expediency. Statutes of limitation do not create new obligations b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such police case had been handed over to the CID, West Bengal. The Ministry of Home Affairs, Government of India had transferred the investigation of such police case from CID, West Bengal to the National Investigation Agency invoking Section 6 (5) of the Act of 2008. The appellants had been convicted by the learned trial judge in such police case. 4. It has not been disputed on behalf of the parties that, an appeal against the impugned judgement of conviction and the order of sentence would be governed by the provisions of the Act of 2008 particularly Section 21 thereof. 5. Learned advocate appearing for the appellant has referred to the provisions of the Act of 2008 and the Limitation Act, 1963. He has submitted that, the provisions of the Act of 2008 do not oust the applicability of the provisions of the Limitation Act, 1963. He has submitted that, the Calcutta High Court in 2016 SCC Online Cal 4483 (Sadanala Ramkrishna and others versus National Investigation Agency) recognised the applicability of Section 12 (3) of the Limitation Act, 1963 to an appeal filed under Section 21 of the Act of 2008. Therefore, on a parity of such reasoning Section 5 of the Limitation Act, 1963 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... National Investigation Agency has submitted that, the provisions of Section 21 of the Act of 2008 are mandatory and in support of such contention, he has relied upon 2015 SCC Online Ker 39625 (Nasir Ahammed versus National Investigation Agency). 11. Learned advocate appearing for the National Investigation Agency has contended that, provisions of Section 5 of the Limitation act, 1963 have no manner of applications and that the time period specified in Section 21 of the Act of 2008 is mandatory. An appeal filed beyond 90 days cannot be entertained. In the present case, the appellants not having filed the present appeal within the prescribed period of 90 days in terms of Section 21 of the Act of 2008, the appeal should not be entertained. 12. The issue as to whether the time period stipulated under Section 21 of the Act of 2008 is mandatory or not has received the consideration of 3 high Courts as it appears from the authorities cited at the bar. The 1st in point of time is by the Kerala High Court in Nasir Ahammad (supra) which has held that the time period stipulated in Section 21 of the Act of 2008 is mandatory. The Delhi High Court in Farhan Shaikh (supra) and the Jammu and Kash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, the prescription of limitation in Section 21 (5) of the Act of 2008 is directory and that, a High Court is empowered to entertain and consider an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the appeal. 16. In arriving at its finding that, Section 5 of the Limitation Act, 1963 is attracted to an appeal under Section 21 of the Act of 2008, Farhan Shaikh (supra) has noticed the following authorities :- i. 1974 (2) SCC 133 (Hukumdev Narain Yadav v. Lalit Narain Mishra) ii. 2004 (4) Supreme Court Cases 252 (Gopal Sardar v. Karuna Sardar) iii. 2017 Volume 2 SCC 350 (Patel Brothers v. State of Assam) iv. 2004 (11) SCC 472 (Fairgrowth Investments Ltd. v. The Custodian) v. 2018 (3) SCC 41 ( Bengal Chemists and Druggists Association V. Kalyan Chowdhury) vi. 1975 Volume 4 SCC 22 (The Commissioner of Sales Tax, U.P. Lucknow v. Parson Tools and Plants, Kanpur) vii. All Indian Reporter 1961 Supreme Court 751 (State of UP v. Baburam Upadhyay) viii. 1979 (2) SCC 656 (Sita Ram v. State of U.P.) ix. AIR 1967 Supreme Court 1877 (Shah and Co. Bombay v. State of Maharashtra) x. 2007 Volume 6 SCC 528 (Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to see whether scheme of special law, nature of remedy of law show that the legislature intended to limit the provisions of the Limitation Act, 1963. Even if the special law does not exclude the provisions of the Limitation Act, 1963 by express reference, Court has to examine whether and to what extent the provisions of nature, subject matter and scheme for special law exclude their operation. 23. In Parson Tools and Plants (supra) the Supreme Court has held that, Court has to give full effect to what is written in the statute. It has held that Section 10 of the UP Sales Tax Act, 1948 does not allow invocation of Section 14 (2) of the Limitation Act, 1963 in terms or in principle for excluding the time in prosecuting proceedings in setting aside the dismissal of appeals. 24. Madan Lal Dan (supra) has observed that, for the purpose of determining the period of limitation prescribed for any application by special/local law, provisions of Section 12 (2) of the Limitation Act, 1963 has to be applied unless expressly barred by the special/local law. 25. In Mangu Ram (supra) the Supreme Court has held that, Section 5 of the Limitation Act, 1963 would not apply in respect of an appeal gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an absolute right and can neither be interfered with nor impaired nor can it be subjected to any condition. It has rendered such observations in respect of an appeal relating to a proceeding under the Negotiable Instruments Act, 1881. 34. Noor Aga (supra) has observed that, the right to appeal where it exist, is a matter of substance and not of procedure. It has made those observations in the light of the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. 35. Consolidated Engineering Enterprises (supra) has held that, the period of limitation prescribed under Section 34 (3) of the Arbitration and Conciliation Act, 1991 was mandatory and that the prescribed period of 3 months to set aside an award can be extended for 30 days and not thereafter. It has held that, the provisions of Section 5 of the Limitation Act, 1963 were barred. 36. Hongo India Private Limited (supra) has held that, even in a case where the special Act does not exclude Section 4 to 24 of the Limitation Act, 1963 by an express reference, it would be open to a Court to examine whether and to what extent the nature of the provisions or nature of subject matter and scheme of a special law exclude t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creation that has built up the common law through its existence by judges of the past. The Courts can exercise no such power in respect of statutes. 42. Bengal Chemists and Druggists Association (supra) has held that, Section 5 of the Limitation Act, 1963 cannot be invoked to extend the period of limitation prescribed in Section 421 (3) of the Companies Act, 2013 since it was a special statute and expressly barred invocation of Section 5 of the Limitation Act, 1963. 43. As has been noted above, investigation relating to a First Information Report dated October 2, 2014 lodged by the police was transferred to the National Investigation Agency by the Central Government under Section 6 (5) read with Section 8 of the National Investigation Agency Act, 2008. Such police case has ended in the impugned judgement of conviction and the order of sentence on completion of the trial. In view of the provisions of the Act of 2008, the police case had been tried by a Special Court. The Court that has passed the impugned judgement of conviction and the order of sentence is a Special Court within the meaning of the Act of 2008. Consequently, appeal against the impugned judgement of conviction and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interlocutory order, of a Special Court to the High Court both on facts and on law. (2) Every appeal under sub-Section (1) shall be heard by a Bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal. (3) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, sentence or order including an interlocutory order of a Special Court. (4) Notwithstanding anything contained in sub- Section (3) of Section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (5) Every appeal under this Section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days: Provided further that no appeal shall be entertained after the expiry of period of ninety days. 49. Sub-Section (1) of Section 21 of the Act of 2008 has a non-obstante cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been recognised by different authorities that, the doctrine of limitation is founded on considerations of public policy and expediency. Statutes of limitation do not create new obligations but only provide periods within which action must be brought to Court. The object of limitation statute is to compel litigants to be diligent in seeking remedies in Courts of law by prohibiting stale claims. The law of limitation does not destroy the primary or substantive right itself but puts an end to the accessory right of action. The judicial remedy is barred but the substantive right itself survives and continues to be available. The rules of limitation are not meant to destroy the rights of the parties. 53. Dilip S. Dhanukar (supra) has held that, right to appeal from a judgement of conviction affecting the liberty of a person, is a fundamental right. The right of appeal can never be interfered with or be impaired, nor can it be subjected to any conditions. 54. Section 21 of the Act of 2008 has dealt with appeals from any judgement, sentence or order, not being an interlocutory order, of a Special Court passed in proceedings governed by the Act of 2008. It has prescribed a period of 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90 days, albeit satisfaction of the High Court as to the existence of sufficient cause for not preferring the appeal within the first 30 days, the appellant can prefer an appeal against a judgement, order or sentence under Section 21 of the Act of 2008. 61. The 2nd proviso to subSection (5) of Section 21 of the Act of 2008 has prescribed that no appeal shall be entertained after the expiry of the period of 90 days. 62. It would be apposite to refer to Section 29 (2) of the Limitation Act, 1963 which is as follows: (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 in so far as, and to the extent to which, they are not expressly excluded by such special or local law. 63. Section 29 (2) of the Limitation Act, 1963 has provided that, where any special or local law prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), Popular Construction Company (supra), Hongo India Private Limited (supra) and Chhattisgarh State Electricity Board (supra). They have observed that, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act, 1963 by an express reference, it would nonetheless 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. 67. As has been discussed above, the Act of 2008 is a special law governing proceedings relating to offences which Special Courts recognised under the Act of 2008 are entrusted to decide in relation to offences enumerate it in the schedule to the Act of 2008. 68. The 2nd proviso to Section 21 (5) of the Act of 2008 has provided that no appeal shall be entertained after the expiry of 90 days. The plain meaning of such proviso would inculcate a prohibition to entertainment of an appeal presented after the expiry of 90 days from the impugned judgement or order or sentence. Reading Section 5 of the Limitation Act, 1963 to the 2nd proviso of subsection (5) of Section 21 of the Act of 2008 would do v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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