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TMI Blog2015 (5) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... xpired on 12.8.2014. The appellant filed a Criminal Revision Petition on 7.10.2014 challenging the order of the court below. That Revision was dismissed as withdrawn on 17.11.2014 with liberty to file a Criminal Appeal against the order impugned. Thereafter, the appellant filed the Criminal Appeal on 25.11.2014. The appellant filed an application to condone the delay of 164 days in filing the appeal. The learned State Prosecutor for National Investigation Agency ('NIA' for short) submitted that the application to condone the delay is not maintainable and that the Court has no power to condone the delay and the appellant cannot invoke S. 5 of the Limitation Act. 2. The learned counsel for the appellant submitted that in spite of the second proviso to sub-section (5) of S. 21 of the N.I.A. Act, the power under S. 5 of the Limitation Act to condone delay is not excluded. 3. To comprehend the contentions put forward by either side, it is apposite to extract S. 21 of the N.I.A. Act: "21. Appeals.--(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Limitation Act. He submitted that S. 12 of the Limitation Act is not excluded and, therefore, the time taken for obtaining the certified copy of the judgment or order can be excluded in computing the period of limitation. 6. Sub-section (2) of S. 29 of the Limitation Act reads as follows: "29. Savings.--(1)........ (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." 7. The Limitation Act applies to Courts. S. 29(2) of the Limitation Act applies 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 to the Limitation Act. If this requirement is satisfied, S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings under it, it is really a conferment of the power of the Court under S. 5 to the Tribunals under the special law - whether these tribunals are Courts or not. If these tribunals under the special law should be Courts in the ordinary sense an express extension of the provision contained in S. 5 of the Limitation Act will become otiose in cases where the special law has created separate tribunals to adjudicate the rights of parties arising under the special law. That is not the intention of the legislature. 14............ 15. After repealing of Indian Limitation Act, 1908 and its replacement by the present Limitation Act of 1963 a fundamental change was made in S. 29(2). The present S. 29(2) as already extracted earlier clearly indicates that once the requisite conditions for its applicability to given proceedings under special or local law are attracted the provisions contained in Ss. 4 to 24 both inclusive would get attracted which obviously would bring in S. 5 which also shall apply to such proceedings unless applicability of any of the aforesaid Sections of the Limitation Act is expressly excluded by such special or local law. By this charge it is not necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Limitation Act, 1963 to condone the delay beyond the period prescribed under the main statute i.e. the Central Excise Act". S. 35-H(1) of the Central Excise Act (unamended) was as follows: "35-H. Application to High Court.--(1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under Section 35-C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal." The period provided for filing the reference application to the High Court was 180 days and there was no provision for condoning the delay if the reference was made beyond the prescribed period. 12. The Supreme Court considered Section 35-H(1) along with certain other provisions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.........In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act 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. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. 36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under S. 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under S. 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of S. 5 of the Limitation Act." 13. In Hukumdev Narain Yadav v. Lalit Narain Mishra ((1974) 2 SCC 133), dealing with a case under the Representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter." 15. In Union of India v. Popular Construction Co. ((2001) 8 SCC 470), the Supreme Court held thus: "12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result." In Popular Construction Company's case, the Supreme Court relied on the decision in Hukumdev Narain Yadav v. Lalit Narain Mishra ((1974) 2 SCC 133). 16. In Ketan V. Parekh v. Special Director, Directorate of Enforcement & Anr. (2012 (1) KLT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of S. 5 of the Limitation Act would not be applicable because the applicability of S. 5 of the Limitation Act stands excluded because of the provisions of S. 29(2) of the Limitation Act." 19. In Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission (2010 (2) KLT SN 34 (C. No. 43) SC : (2010) 5 SCC 23), the Supreme Court held thus: "32. In view of the above discussion, we hold that S. 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in S. 125 of the Electricity Act and its proviso. Any interpretation of S. 125 of the Electricity Act which may attract the applicability of S. 5 of the Limitation Act read with S. 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and the proviso to S. 125 will become nugatory." The N.I.A. Act is an Act to constitute an investigation agency ..... X X X X Extracts X X X X X X X X Extracts X X X X
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