Criminal Application No.356 of 2008,Criminal Application No .357 of 2008,Criminal Appln. No.2060 of 2008,2061 of 2008,2061 of 2008

7th January, 2009

Petitioner Counsel: Mr. RAHUL TIWARI,K. R. Tiwari & Co.
Respondent Counsel: Mr. J. S. CHANDNANI,Mr. J. P. YAGNIK

Cases Cited:
Smt. Krishna Devi Vs. Dina Ram, 2008 Cri.L.J. 3122 [Para 4]
Kaushalya Rani Vs. Gopal Singh, AIR 1964 SC 260 [Para 4,6]
Gopal Sardar Vs. Karuna Sardar, [2004]4 SCC 252 [Para 4,8,9]
Mangu Ram : Ram Pershad Gondamal through Ram Pershad and Jaidayal Vs. Municipal Corporation of Delhi, 1976[1] SCC 392 [Para 4,8,9]
Hukumdev Narain Yadav Vs. Lalit Narayan Mishra, [1974]2 SCC 133 [Para 4]
Sagunabai Lahanu Shinde Vs. Patru Goma Lengure, 1979 Mh.L.J. 19 [Para 6]
Ramkrishna Jairam Damdar Vs. Savita w/o. Ramkrishna Damdar, 2002 ALL MR (Cri) 1094=2002[2] Mh.L.J. 65 [Para 6,7]
Consolidated Engg. Enterprises Vs. Principal Secretary, Irrigation Department, 2008(6) ALL MR 423 (S.C.)=2008[6] JT 22 [Para 9]
State of Nagaland Vs. Lipok Ao, 2005 ALL MR (Cri) 1570 (S.C.)=[2005]3 SCC 752 [Para 11]

JUDGMENT

JUDGMENT :- Heard learned counsel appearing for the applicant. I have also heard the learned counsel appearing for the respondents. There is a delay in making an application under sub-section 4 of section 378 of Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). Therefore, by filing present application, the applicant-original complainant has invoked section 5 of the Indian Limitation Act, 1963 (hereinafter referred to as "the said Act of 1963").

2. The delay is of seventeen days. The explanation for the delay is that the applicant was suffering from heart ailment and blood pressure. It is stated that the applicant is a diabetic patient and is bed ridden and, therefore, the applicant could not approach an advocate for filing the application within limitation.

3. The opposition of the learned counsel appearing for the first and second respondents is on two grounds. The first ground is that in view of the period of limitation provided under sub-section 5 of section 378 of the said Code, section 5 of the said Act of 1963 will have no application. The second opposition is on the ground that there is no proper explanation for delay and though the ground of sickness is pleaded, the medical certificate is not produced.

4. In support of the first contention, the learned counsel for the first and second respondents has relied upon a decision of Himachal Pradesh High Court in case of Smt. Krishna Devi Vs. Dina Ram (2008 Cri.L.J. 3122). He placed reliance on the decision of the Apex Court in the case of Kaushalya Rani Vs. Gopal Singh (AIR 1964 SC 260). Lastly he placed reliance on a decision of the Supreme Court in the case of Gopal Sardar Vs. Karuna Sardar ([2004]4 SCC 252). He invited my attention to paragraph 14 of the said decision and submitted that the decision of the Apex Court in the case of Mangu Ram : Ram Pershad Gondamal through Ram Pershad and Jaidayal Vs. Municipal Corporation of Delhi (1976[1] SCC 392) has been explained by holding that the said decision has been rendered in the facts of that case. He submitted that the decision in case of Mangu Ram (supra) was rendered without considering a decision of a larger Bench in the case of Hukumdev Narain Yadav Vs. Lalit Narayan Mishra ([1974]2 SCC 133).

5. Thus, the issue to be decided is whether section 5 of the said Act of 1963 will apply to an application made under sub-section 4 of section 378 of the said Code. It will be necessary to refer to sub-section 5 of section 378 of the said Code which reads thus :-

"378. Appeal in case of acquittal :-

(1) ... ...

(2) ... ...

(3) ... ...

(4) ... ...

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal."

A submission has been made that in view of the negative language used under sub-section 5, considering the provisions of section 29(2) of the said Act of 1963, applicability of section 5 of the said Act of 1963 has been excluded. Insofar as this Court is concerned, the said issue is no longer res-integra.

6. In the case of Sagunabai Lahanu Shinde Vs. Patru Goma Lengure and others (1979 Mh.L.J. 19) this Court had an occasion to consider the said issue in the light of provisions of section 29(2) of the said Act of 1963. Before this Court reliance was placed on the decision of the Apex Court in the case of Kaushalya Rani (supra). After considering the decision in the case of Kaushalya Rani, in paragraph 6 this Court held thus :-

"6. ... ... This contention seems to be correct. After the enactment of the Limitation Act of 1963 the provisions of section 5 of the said Act have been made applicable to the cases governed by period of limitation prescribed by any special or local law except where such application is specifically excluded in the said special or local law itself. There is no such exclusion of section 5 of the Limitation Act, 1963, or application in the provisions of section 378, sub-sections (4) and (5)."

After holding as aforesaid, in paragraph 6 the Court held that section 5 of the said Act of 1963 would govern an application under sub-section 4 of section 378 of the said Code. There is another decision of this Court in the case of Ramkrishna Jairam Damdar Vs. Savita w/o. Ramkrishna Damdar and another (2002[2] Mh.L.J. 65 : [2002 ALL MR (Cri) 1094]).

7. This Court in the decision in the case of Ramkrishna [2002 ALL MR (Cri) 1094] (supra) considered the difference between sub-section 2 of section 29 of the Indian Limitation Act, 1908 and sub-section 2 of section 29 of the said Act of 1963. After considering the said provisions in paragraph 16 this Court held thus :-

"16. On scrutiny of the various authorities on this point it is now well settled that the earlier view taken by the Supreme Court in case of Kaushalya Rani holding that old section 417(4) of Criminal Procedure Code was a 'special law' within the meaning of section 29(2) of the Limitation Act, 1908 and that, accordingly section 5 of the Act would not be invoked in cases applying old section 417(4). But section 29(2) of the Limitation Act, itself has been changed in the Limitation Act 1963, according to which the application of section 5 cannot be excluded unless it is expressly excluded by such special law. Now under section 378(5) of the new Code of Criminal Procedure or in any other provisions thereof there is no express provision excluding the application of section 5 of the Limitation Act, hence, this provision can be invoked in order to get the benefit of extension of prescribed period of limitation, and the Court can admit an appeal or an application after the expiry of the prescribed period of limitation on sufficient cause being shown for the delay."

8. The learned counsel appearing for the first and second respondents submitted that the second decision of this Court relies upon the decision of the Apex Court in the case of Manguram (supra) and the said decision has been explained by the Apex Court in the case of Gopal Sardar (supra). He invited my attention to paragraph 14 of the said decision. The said paragraph 14 reads thus :-

"14. The decision in Mangu Ram Vs. Municipal Corporation of Delhi [(1976)1 SCC 392] is cited in support of the submission that in the absence of express exclusion of application of Section 5 of the Limitation Act in the special law, benefit of section 5 of Limitation Act could be availed. In that case, special leave petitions were filed in this Court against the condonation of delay to the application for the grant of special leave under Section 417 of Cr.P.C. against acquittal of the petitioners by the trial court in spite of the mandatory period of limitation provided in sub-section (4) of Section 417. The question that arose in that case was whether the decision of this Court in Kaushalya Rani Vs. Gopal Singh [1964(4) SCC 982], in which it was held that Section 417, Cr.P.C. excluded application of Section 5 of the Limitation Act on a construction of Section 29(2)(b) of the old Limitation Act of 1908 could be applied under the corresponding provisions of the Limitation Act, 1963. The decision of that case turned upon the facts of that case in criminal appeals by comparison of the provision of the old Limitation Act to the provisions of the new Limitation Act. The Division Bench of the Calcutta High Court in Serish Maji (supra), referring to the observation made in Mangu Ram (supra) that "mere provision of a period of limitation in howsoever pre-emption or imperative language is not sufficient to displace the applicability of Section 5", in para 11 of the judgment, has stated thus :-

"11. The observation does not help the applicant. It assumes that an imperative provision coupled with other factors might be sufficient to exclude the applicability of the Limitation Act. Ultimately it would be a question of interpretation of the special or local law in question."

Further the decision in Hukumdev Narain Yadav (supra) was not brought to the notice of this Court when Mangu Ram case (supra) was decided. In the light of the three-Judge Bench decision of this Court in Hukumdev Narain Yadav we do not find any good reason to take a different view." (Emphasis added)

9. The observations made by the Apex Court in paragraph 14 will not help the case of first and second respondents as the Apex Court has held that the decision of the Apex Court in the case of Mangu Ram (supra) was rendered in the facts of the case. In the case of Mangu Ram (supra), the Apex Court held that to an application under section 417 of the Code of Criminal Procedure, 1898 the provision of section 5 of the said Act of 1963 will apply in view of section 29(2) of the said Act of 1963.

The submission of the counsel for the original accused is that in the case of Hukumdev Yadav, a larger bench of the Apex Court held that there need not be a specific exclusion of applicability of provisions of the said Act of 1963, but the exclusion can be inferred from the nature of the provisions of the statute. In the decision in the case of Gopal Sardar (supra) the Apex Court has not disturbed the decision in the case of Mangu Ram (supra). The decision in the case of Consolidated Engg. Enterprises Vs. Principal Secretary, Irrigation Department (2008[6] JT 22 : [2008(6) ALL MR 423 (S.C.)]) will not help the respondent-accused as the said decision holds that Section 5 of the said Act of 1963 stands excluded from the applicability to Section 34 of the said Act of 1996 in view of the peculiar provision of sub-section 3 of section 34 which prescribes not only the period of limitation but also provides that the period of limitation can be extended only by a period of thirty days. In the present case, from the language of sub-section 5 of section 378 of the said Code, it is not possible to infer the exclusion of the applicability of the provisions of section 5 of the said Act of 1963.

10. Apart from all this, I am respectfully bound by the aforesaid two decisions of this Court and no case is made out for taking a different view of the matter. Hence, section 5 of the said Act of 1963 will be very much applicable to the application under sub-section 4 of section 378 of the said Code.

11. Another objection raised by the learned counsel for the first and second respondents is that the medical certificate of the proprietor of the applicant has not been annexed. The delay is of only seventeen days. The Apex Court has repeatedly held that the Court has to adopt a liberal approach while dealing with the application made under section 5 of the said Act of 1963. The Apex Court in the case of State of Nagaland Vs. Lipok Ao and others ([2005]3 SCC 752 : [2005 ALL MR (Cri) 1570 (S.C.)]) observed that the expression "sufficient cause" should be considered with pragmatism in a justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. Considering the fact that the delay is only of seventeen days, a case is made out for condonation of delay.

12. Accordingly, the application is allowed in terms of prayer clause (a). The application for leave shall be placed for admission on 23rd January, 2008.

Application allowed.