{"id":19269,"date":"2024-08-07T08:47:27","date_gmt":"2024-08-07T03:17:27","guid":{"rendered":"https:\/\/mynation.net\/docs\/?p=19269"},"modified":"2024-08-07T08:47:37","modified_gmt":"2024-08-07T03:17:37","slug":"2052-2017","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/2052-2017\/","title":{"rendered":"SC: Delay Occurred In Filing Criminal Appeal Against Acquittal Under S.378 CrPC Can Be Condoned Under Limitation Act"},"content":{"rendered":"

IN THE SUPREME COURT OF INDIA<\/strong>
\nCRIMINAL APPELLATE JURISDICTION<\/p>\n

CRIMINAL APPEAL NO. OF 2024<\/p>\n

(ARISING OUT OF SLP (CRL.) NO. 2052 OF 2017)<\/p>\n

MOHD ABAAD ALI ANR.<\/p>\n

Vs<\/p>\n

DIRECTORATE OF REVENUE\u00a0PROSECUTION INTELLIGENCE<\/p>\n

Author: SUDHANSHU DHULIA, J.<\/p>\n

Citation:\u00a0\u00a02024 INSC 125.<\/p>\n

Dated:\u00a0February 20, 2024.<\/p>\n

Leave granted.<\/p>\n

1. The present appellant was one of the four accused in a case instituted, inter-alia under Section 135(1)(b) of Customs Act, 1962. He faced trial (S.C. No. 33 of 2009) where he was ultimately acquitted by the Additional Sessions Judge, North, Delhi vide order dated 06.10.2012.<\/p>\n

2. Against the order of acquittal, the Directorate of Revenue Intelligence filed an appeal before the High Court on 27.06.2013. That appeal against acquittal filed under Section 378 of CrPC was accompanied by a delay condonation application, since the appeal was belated by 72 days. The delay condonation application was allowed by the Delhi High Court on 18.05.2016.<\/p>\n

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 self contained Code as far as limitation is concerned since there is no period prescribed in the Limitation Act for filing a appeal against acquittal.<\/p>\n

5. In support of his argument, the learned counsel for the appellant Mr. Vijay Kumar Aggarwal, has relied upon the judgment of this Court in Kaushalya Rani v. Gopal Singh (1964) 4 SCR 982. The facts of Kaushalya Rani are as follows: Kaushalya Rani had filed a case against one Gopal Singh under Section 493 IPC and alternatively under Section 496 IPC, alleging that Gopal Singh had deceitfully made her believe that he is her lawfully married husband and thus had sexual intercourse with her. Gopal Singh faced a trial in which he was acquitted by the Trial Court and an appeal against acquittal was filed by Kaushalya Rani under the Code of Criminal Procedure, 1898 (hereafter referred to as the \u201cold CrPC\u201d), under Section 417. The appeal was filed beyond the period of 60 days as provided under sub-section (4) of Section 417, i.e., the then prevailing Criminal Procedure Code. The appeal was dismissed on grounds of limitation by the Punjab Haryana High Court. This matter was thus taken by Kaushalya Rani before this Court. The case was filed before this Court on a certificate of fitness granted by the Punjab Haryana High Court and the question for determination before this Court was whether the provisions of Section 5 of the Limitation Act, 1908 (i.e. Act 9 of 1908 i.e. the old Limitation Act) would apply to an application for special leave to appeal from an order of acquittal under sub-section 3 of Section 417 of the old CrPC.<\/p>\n

6. This Court on its interpretation of sub-section 4 of Section 4171 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 1 Section 417 of the old CrPC is as follows:<\/p>\n

417 (1) Subject to the provisions of sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of a acquittal passed by any Court other than a High Court.<\/p>\n

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (XXXV of 1946), the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.<\/p>\n

(3) If such an order of acquittal is passed in any case instituted upon the complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.<\/p>\n

(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.<\/p>\n

(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).<\/p>\n

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.<\/p>\n

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 appeal was dismissed while relying on Section 29(2) of the old Limitation Act. For ready convenience of this Court, Section 29(2) of the old Limitation Act is reproduced below:<\/p>\n

\u201c(2) Where any special or local law
\nprescribes for any suit, appeal or
\napplication a period of limitation different
\nfrom the period prescribed therefore by
\nthe first schedule, the provisions of
\nSection 3 shall apply, as if such period
\nwere prescribed therefor in that schedule,
\nand for the purpose of determining any
\nperiod of limitation prescribed for any
\nsuit, appeal or application by any special
\nor local law\u2014<\/p>\n

(a) the provisions contained in Section 4,
\nSections 9 to 18, and Section 22 shall
\napply only in so far as, and to the extent
\nto which, they are not expressly excluded
\nby such special or local law; and
\n(b) the remaining provisions of this Act
\nshall not apply.\u201d<\/p>\n

A perusal of the aforesaid provision clearly shows that where there is a special or local law prescribing the period of limitation in any suit, appeal or application which is different from the period of limitation prescribed in the first schedule of the Limitation Act, the applicability of the Limitation Act will be only as regarding Section 4 and Sections 9 to 18 22 of the Limitation Act. The meaning thereby afforded is that Section 5 of the old Act was expressly excluded in cases where special law or local law provides for a period of limitation. The learned counsel for the appellant would argue that although in the present case, we are dealing with present Criminal Procedure Code, 1973 and the new Limitation Act, 1963 however, the provisions in the present Code for appeal against acquittal i.e., under Section 378 of CrPC are of similar nature regarding the prescription of a period of limitation for filing an appeal and therefore the law as laid down by Kaushalya Rani (supra), would apply in the present case as well.<\/p>\n

7. This submission of the learned counsel is not correct.<\/p>\n

Subsequent to the decision of this Court in Kaushalya Rani (supra), this Court in Mangu Ram v. Municipal Corporation of Delhi (1976) 1 SCC 392, while dealing with a similar problem of limitation (in an appeal against acquittal), distinguished Kaushalya Rani as Kaushalya Rani was dealing with the old Criminal Procedure Code,1898 and the old Limitation Act, 1908, where provisions were differently worded. Under Section 378 of the new CrPC read 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:-<\/p>\n

\u201c(2) Where any special or local law
\nprescribes for any suit, appeal or
\napplication a period of limitation different
\nfrom the period prescribed by the
\nSchedule, the provisions of Section 3 shall
\napply as if such period were the period
\nprescribed by the Schedule and for the
\npurpose of determining any period of
\nlimitation prescribed for any suit, appeal or
\napplication by any special or local law, the
\nprovisions contained in Sections 4 to 24
\n(inclusive) shall apply only insofar as, and
\nto the extent to which, they are not
\nexpressly excluded by such special or local
\nlaw.\u201d
\n(emphasis supplied)<\/p>\n

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 Acts, the 1963 Act makes Section 5 applicable even in the special laws when a period of limitation is prescribed, unless it is expressly excluded by such special law. A comparative provision of Section 29(2) in the two Acts is given below:-<\/p>\n

Section 29(2) of the
\nOld Limitation Act of
\n1908<\/p>\n

Section 29(2) of the
\nnew Limitation Act of
\n1963<\/p>\n

(2) Where any special or
\nlocal law prescribes for
\nany suit, appeal or
\napplication a period of
\nlimitation different from
\nthe period prescribed
\ntherefor by the first
\nschedule, the provisions
\nof section 3 shall apply
\nas if such period were
\nprescribed therefor in
\nthat schedule and for the
\npurpose of determining
\nany period of limitation
\nprescribed for any suit,
\nappeal or application by
\nany special or local law:<\/p>\n

(2) Where any special or
\nlocal law prescribes for
\nany suit, appeal or
\napplication a period of
\nlimitation different from
\nthe period prescribed by
\nthe Schedule, the
\nprovisions of section 3
\nshall apply as if such
\nperiod were the period
\nprescribed by the
\nSchedule and for the
\npurpose of determining
\nany period of limitation
\nprescribed for any suit,
\nappeal or application by
\nany special or local law,<\/p>\n

(a) the provisions
\ncontained in section 4,
\nsections 9 to 18, and
\nsection 22 shall apply
\nonly in so far as, and to
\nthe extent to which, they
\nare not expressly
\nexcluded by such special
\nor local law; and
\n(b) the remaining
\nprovisions of this Act
\nshall not apply.
\nthe provisions contained
\nin sections 4 to 24
\n(inclusive) shall apply
\nonly in so far as, and to
\nthe extent to which, they
\nare not expressly
\nexcluded by such special
\nor local law.<\/p>\n

As Kaushalya Rani (supra) was decided under provisions of old Limitation Act of 1908, this Court in Mangu Ram (supra) distinguished Kaushalya Rani and held as under:<\/p>\n

\u201cThere is an important departure made by
\nthe Limitation Act, 1963 insofar as the
\nprovision contained in Section 29, subsection
\n(2), is concerned. Whereas, under
\nthe Indian Limitation Act, 1908, Section
\n29, sub-section (2), clause (b) provided
\nthat for the purpose of determining any
\nperiod of limitation prescribed for any suit,
\nappeal or application by any special or
\nlocal law, the provisions of the Indian
\nLimitation Act, 1908, other than those
\ncontained in Sections 4, 9 to 18 and 22,
\nshall not apply and, therefore, the
\napplicability of Section 5 was in clear and
\nspecific terms excluded, Section 29, subsection
\n(2) of the Limitation Act, 1963
\nenacts in so many terms that for the
\npurpose of determining the period of
\nlimitation prescribed for any suit, appeal or
\napplication by any special or local law the
\nprovisions contained in Sections 4 to 24,
\nwhich would include Section 5, shall apply
\ninsofar as and to the extent to which they
\nare not expressly excluded by such special
\nor local law. Section 29, sub-section (2),
\nclause (b) of the Indian Limitation Act,
\n1908 specifically excluded the applicability
\nof Section 5, while Section 29, sub-section
\n(2) of the Limitation Act, 1963, in clear and
\nunambiguous terms, provides for the
\napplicability of Section 5 and the ratio of
\nthe decision in Kaushalya Rani case can,
\ntherefore, have no application in cases
\ngoverned by the Limitation Act, 1963, since
\nthat decision proceeded on the hypothesis
\nthat the applicability of Section 5 was
\nexcluded by reason of Section 29(2)(b) of
\nthe Indian Limitation Act, 1908. Since
\nunder the Limitation Act, 1963, Section 5
\nis specifically made applicable by Section
\n29, sub-section (2), it can be availed of for
\nthe purpose of extending the period of
\nlimitation prescribed by a special or local
\nlaw, if the applicant can show that he had
\nsufficient cause for not presenting the
\napplication within the period of limitation.
\nIt is only if the special or local law
\nexpressly excludes the applicability of
\nSection 5, that it would stand displaced.<\/p>\n

Here, as pointed out by this Court
\nin Kaushalya Rani case the time limit of
\nsixty days laid down in sub-section (4) of
\nSection 417 is a special law of limitation
\nand we do not find anything in this special
\nlaw which expressly excludes the
\napplicability of Section 5. It is true that the
\nlanguage of sub-section (4) of Section 417
\nis mandatory and compulsive, in that it
\nprovides in no uncertain terms that no
\napplication for grant of special leave to
\nappeal from an order of acquittal shall be
\nentertained by the High Court after the
\nexpiry of sixty days from the date of that
\norder of acquittal. But that would be the
\nlanguage of every provision prescribing a
\nperiod of limitation. It is because a bar
\nagainst entertainment of an application
\nbeyond the period of limitation is created
\nby a special or local law that it becomes
\nnecessary to invoke the aid of Section 5 in
\norder that the application may be
\nentertained despite such bar. Mere
\nprovision of a period of limitation in
\nhowsoever peremptory or imperative
\nlanguage is not sufficient to displace the
\napplicability of Section 5. The conclusion
\nis, therefore, irresistible that in a case
\nwhere an application for special leave to
\nappeal from an order of acquittal is filed
\nafter the coming into force of the Limitation
\nAct, 1963, Section 5 would be available to
\nthe applicant and if he can show that he
\nhad sufficient cause for not preferring the
\napplication within the time limit of sixty
\ndays prescribed in sub-section (4) of
\nSection 417, the application would not be
\nbarred and despite the expiration of the
\ntime limit of sixty days, the High Court
\nwould have the power to entertain it.
\n(emphasis supplied)<\/p>\n

8. Mr. Vijay Kumar Aggarwal, learned counsel would then rely upon two cases, namely, Hukumdev Narain Yadav v. Lalit Narain Mishra [AIR 1974 SC 480] and subsequently Gopal Sardar v. Karuna Sardar [2004 (4) SCC 252].<\/p>\n

9. Both the above mentioned cases were dealing with special laws where a period of limitation was prescribed.<\/p>\n

Whereas Hukumdev Narain Yadav (supra) relates to Election matter where Section 81 of the Representation of People\u2019s Act, 1951, prescribes a limitation of 45 days for filing an Election Petition, 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 \u2018raiyat\u2019 to make an application for pre-emption to the concerned authorities.<\/p>\n

10. There can be no quarrel with the argument that where a
\nspecial law prescribes a period of limitation, Section 5 of
\nthe Limitation Act would have no application, subject
\nonly to the language used in the special statute. The
\nlanguage prescribing a period of limitation is an
\nimportant factor as well. For example, in the
\nRepresentation of Peoples Act, 1951 Section 81 prescribes
\nlimitation for presenting an election petition as under :-<\/p>\n

\u201c81. Presentation of petitions.\u2014(1) An
\nelection petition calling in question any
\nelection may be presented on one or
\nmore of the grounds specified
\nin 207[sub-section (1)] of Section 100
\nand Section 101 to the 208[High
\nCourt] by any candidate at such
\nelection or any elector 209[within forty13
\nfive days from, but not earlier than the
\ndate of election of the returned
\ncandidate or if there are more than one
\nreturned candidate at the election and
\ndates of their election are different, the
\nlater of those two dates].
\nExplanation.\u2014In this sub-section,
\n\u201celector\u201d means a person who was
\nentitled to vote at the election to which
\nthe election petition relates, whether
\nhe has voted at such election or not.<\/p>\n

(2) [Omitted]<\/p>\n

(3) Every election petition shall be
\naccompanied by as many copies
\nthereof as there are respondents
\nmentioned in the petition [* * *] and
\nevery such copy shall be attested by
\nthe petitioner under his own signature
\nto be a true copy of the petition.\u201d
\nSection 86(1) further says that in case an election petition
\nis filed beyond a period of 45 days it shall be dismissed.
\nSection 86(1) reads as under:-<\/p>\n

\u201c86. Trial of election petitions.\u2014(1) The
\nHigh Court shall dismiss an election
\npetition which does not comply with the
\nprovisions of Section 81 or Section 82 or
\nSection 117.<\/p>\n

Explanation.\u2014An order of the High
\nCourt dismissing an election petition
\nunder this sub-section shall be deemed
\nto be an order made under clause (a) of
\nSection 98.\u201d<\/p>\n

The election statute thus expressly bars filing of an election petition beyond 45 days. The language of the statute, leaves no ambiguity in this regard.<\/p>\n

\u201cThe High Court shall dismiss an election petition\u201d, is the language given in the statute. Simply put the Court has no choice but to dismiss an election petition, which is filed beyond a period of 45 days.<\/p>\n

There is no scope for condoning the delay in an election matter. Therefore in Hukumdev Narain Yadav (supra) it was stated as under:-<\/p>\n

\u201c17. Though Section 29(2) of the Limitation
\nAct has been made applicable to appeals
\nboth under the Act as well as under the
\nCode of Criminal Procedure, no case has
\nbeen brought to our notice where Section
\n29(2) has been made applicable to an
\nelection petition filed under Section 81 of
\nthe Act by virtue of which either Sections
\n4, 5 or 12 of the Limitation Act has been
\nattracted. Even assuming that where a
\nperiod of limitation has not been fixed for
\nelection petitions in the Schedule to the
\nLimitation Act which is different from that
\nfixed under Section 81 of the Act, Section
\n29(2) would be attracted, and what we have
\nto determine is whether the provisions of
\nthis Section are expressly excluded in the
\ncase of an election petition\u2026.. In our view,
\neven in a case where the special law does
\nnot exclude the provisions of Sections 4 to
\n24 of the Limitation Act by an express
\nreference, it would nonetheless be open to
\nthe Court to examine whether and to what
\nextent the nature of those provisions or the
\nnature of the subject-matter and scheme of
\nthe special law exclude their operation. The
\nprovisions of Section 3 of the Limitation
\nAct that a suit instituted, appeal preferred
\nand application made after the prescribed
\nperiod shall be dismissed are provided for
\nin Section 86 of the Act which gives a
\nperemptory command that the High Court
\nshall dismiss an election petition which
\ndoes not comply with the provisions of
\nSections 81, 82 or 117.
\n(emphasis supplied)<\/p>\n

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.<\/p>\n

Hukumdev Narain Yadav as we have already discussed above relates to election laws which falls in an entirely different category, as far as period of limitation is<\/p>\n

concerned. A bare comment of this Court that a case was not considered would not mean that the entire findings of the court arrived in Mangu Ram (supra) are wrong. We must appreciate Gopal Sardar for what it decides and the facts and the context on which this decision is based. What were the facts of Gopal Sardar and what were the findings of this Court? In Gopal Sardar, this Court was again dealing with the period of limitation relating to West Bengal Land Reforms Act, 1955 and the application of Section 5 of the Limitation Act. Section 8 of the West Bengal Land Reforms Act, 1955 gave certain right to a \u201craiyat\u201d for transfer of land of cosharer, exercising his right of pre-emption but this right had to be exercised \u201cwithin a period of 4 months of the date of cause of action\u201d. The same Act in its Section 14-\u2018O\u2019 and Section 19 while discussing the period of appeal provides that Section 5 of the Limitation Act would apply. This Court thus came to a finding that though Section 5 of the Limitation Act would apply in the case of appeal but it will not apply in a case when the proceedings itself had to be initiated in form of suit under Section 8 of the Act which had to be done within a period of 4 months.<\/p>\n

Section 8 of the West Bengal Land Reforms Act, 1955 reads as under:<\/p>\n

\u201c8. Right of purchase by co-sharer or
\ncontiguous tenant.\u2014(1) If a portion or
\nshare of a plot of land of a raiyat is
\ntransferred to any person other than a cosharer
\nof a raiyat in the plot of land,
\nthe bargadar in the plot of land may,
\nwithin three months of the date of such
\ntransfer, or any co-sharer of a raiyat in the
\nplot of land may, within three months of
\nthe service of the notice given under subsection
\n(5) of Section 5, or any raiyat
\npossessing land adjoining such plot of
\nland, may, within four months of the date
\nof such transfer, apply to the Munsif
\nhaving territorial jurisdiction for transfer
\nof the said portion or share of the plot of
\nland to him, subject to the limit mentioned
\nin Section 14-M on deposit of the
\nconsideration money together with a
\nfurther sum of ten per cent of that
\namount.<\/p>\n

This is what this Court said on these two provisions:<\/p>\n

\u201c19. We conclude that Section 5 of the
\nLimitation Act cannot be pressed into
\nservice in aid of a belated application
\nmade under Section 8 of the Act seeking
\ncondonation of delay. The right of preemption
\nconferred under Section 8 is a
\nstatutory right besides being weak; it has
\nto be exercised strictly in terms of the said
\nsection and consideration of equity has
\nno place. On the facts found in these
\nappeals, applications under Section 8
\nwere not made within four months from
\nthe date of transfer but they were made
\nfour years and six years after the date of
\ntransfer respectively which were
\nhopelessly barred by time. Benefit of
\nSection 5 of the Limitation Act not being
\navailable to the applications made under
\nSection 8, Section 3 of the Limitation Act
\nessentially entails their dismissal.\u201d<\/p>\n

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.<\/p>\n

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. There is no force in the contentions raised by the appellants as regards the non-application of Section 5 of the Limitation Act in the present case and the appeal is therefore dismissed.<\/p>\n

12. The interim order dated 20.03.2017 passed by this Court is hereby vacated. The Registry is hereby directed to apprise these proceedings to the Delhi High Court so that the matter may continue.<\/p>\n

[SUDHANSHU DHULIA]
\n[PRASANNA BHALACHANDRA VARALE]
\nNew Delhi.
\nFebruary 20, 2024.<\/p>\n","protected":false},"excerpt":{"rendered":"

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2024 (ARISING OUT OF SLP (CRL.) NO. 2052 OF 2017) MOHD 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