Calcutta High Court (Appellete Side)
Sri Sunil Kumar Manna vs Gaffar Molla & Anr on 12 September, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Appellate Jurisdiction)
Appellate Side
Present:
Justice Bibhas Ranjan De
CRMSPL 27 of 2023
(IA NO: CRAN 1 of 2023)
Sri Sunil Kumar Manna
Vs.
Gaffar Molla & Anr.
With
CRMSPL 35 of 2023
(IA NO: CRAN 1 of 2023)
Binod paper Mart
Vs.
The State of West Bengal & Anr.
With
CRMSPL 52 of 2023
(IA NO: CRAN 1 of 2023)
M/s. Alps Tourist Services
Vs.
The State of West Bengal & Anr.
2
For the Appellant :Mr. Dipta Dipak Banerjee, Adv.
.... CRMSPL No. 27 of 2023
Mr. Ayan Bhattacharjee, Adv.
... CRMSPL No. 35 & 52 of 2023
Mr. Debrpratim Guha, Adv.
Ms. Anchita Sarkar, Adv.
... CRMSPL No. 35 of 2023
Mr. Apalak Basu, Adv.
Mr. Nazir Ahmed, Adv.
Ms. Sanghamitra Mridha, Adv.
... CRMSPL No. 52 of 2023
For the Respondent no.1. :Mr. Anirban Tarafdar, Adv.
Mr. S. Tudu, Adv.
.... CRMSPL 27 of 2023
For the State :Mr. Narayan Prasad Agarwala, Adv.
Mr. Pratick Bose, Adv.
.... CRMSPL No. 27 of 2023
Heard on : 8th August,2023 (CRMSPL 27 of 2023) &
30thAugust,2023 (CRMSPL 35&52 of 2023)
Judgement on : September 12, 2023
3
Bibhas Ranjan De, J.
1. Whether Section 5 of the Limitation Act, is applicable to an
application with a prayer for special leave to appeal under
Section 378 (5) of the Criminal Procedure Code (for short
CrPC) is the question that needs to be decided in the aforesaid
three applications for special leave to appeal. Initially,
CRMSPL 27 of 2023 was heard by me at length and judgement
was reserved. Subsequently, two other applications, namely,
CRMSPL 52 of 2023 and CRMSPL 35 of 2023 came up for
hearing before me in which identical question was involved.
2. Ld. advocate, appearing for the petitioner in the subsequent
two applications argued the matter and I had to reserve
subsequent two CRMSPL applications with a view to dispose of
all three applications having identical question of law by a
common judement. That is why, all three applications are
being disposed of by this common judgement.
3. Accordingly, I proceed to decide the said question of law,
referred to hereinabove first, before taking up for decision of
each of the applications for special leave to appeal, on merits.
4. At the outset, I am dealing with an application for condonation
of delay for 247 days (IA No. CRAN 1 of 2023) with CRMSPL
27 of 2023 in filing the special leave to appeal petition
assailing the judgment and order of acquittal under Section
255(1) CrPC passed by Learned Metropolitan Magistrate, 4th
Court, Calcutta in connection with Case no. C-638/2012
under Section 138 of the Negotiable Instrument Act, 1881
(hereinafter referred to as NI Act).
5. Ld. Advocate, Mr. Dipta Dipak Banerjee, appearing on behalf
of the petitioner submitted that against the judgment and
order of acquittal passed by Ld. Magistrate, 4th Court, Calcutta
one appeal has been preferred before the Court of Ld. Chief
Judge, City Sessions Court, Calcutta which, in turn was
transferred to Additional Sessions Judge, Fast Track Court-II
for disposal. In the mean time, a Co-ordinate Bench of this
Court held inter alia that an appeal against acquittal in a case
under Section138 of the NI Act would lie to the High Court not
before the City Sessions Court. Therefore, according to Mr.
Banerjee, the time taken in a proceeding before wrong forum is
liable to be excluded from the period of limitation prescribed
therefor. In support of his contention he relied on a case of
Mangu Ram Vs Municipal Corporation of Delhi reported in
AIR 1976 SCC 105 as well as Kaushalya Rani Vs. Gopal
Singh reported in AIR 1964 Supreme Court 260.
6. Per contra, Ld. Advocate, Mr. Anirban Tarafdar, appearing on
behalf of the respondent no. 1, raised the issue of applicability
of Section 5 of the Limitation Act as well as grounds for
condonation of delay in terms of Section 378 of the CrPC.
7. Mr. Tarafdar has submitted that under the Provision of
Section 378 (5) of the CrPC delay in filing special leave petition
cannot be condoned by the High Court. According to him,
applicability of Section 5 has been excluded by codifying the
Provision of Section 378(5) of the CrPC by the legislature.
8. In support of his contention, Mr. Tarafdar relied on a case of
Hukumdev Narain Yadav Vs. Lalit Narain Mishra reported
in AIR 1974 Supreme Court 480 and Gopal Sardar Vs.
Karuna Sardar reported in AIR 2004 Supreme Court 3068.
9. On the issue of explanation of delay, Mr. Tarafdar has
submitted that the time wasted before any wrong forum
cannot be condoned from the period of limitation on the
principle of " ignorance of law is no excuse". In support of his
contention Mr. Tarafdar relied on a case of The Swadeshi
Cotton Mills Co. Ltd. Vs. The Government of U.P. and Ors.
Reported in 1975(4) SCC 378 as well as observation of a Co-
ordinate Bench of this Court in connection with C.O No. 2203
of 2019.
10. Mr. Tarafdar further distinguished the principle laid
down in the case of Mangu Ram (supra) by submitting that in
Mangu Ram principle laid down in Hukumdev (supra) by
larger bench has not been referred to.
11. In CRMSPL 52 of 2023, petitioner prefer one revisional
application being aggrieved by and dissatisfied with the
impugned judgement and order of acquittal dated 10.11.2022
passed by Ld. Judge, Fast Tract Court, City sessions court, in
connection with criminal appeal no. 221 of 2019. Hon‟ble
Justice Trithankar Ghosh by the order dated 01.08.2023
allowed the revisional application to be not pressed and
granted liberty to prefer an appeal under Section 378 (4) of the
CrPC. That is why, the CRMSPL 52 of 2023 was filed with
CRAN 1 of 2023 for condonation of delay in filing special leave
petition.
12. In CRMSPL 35 of 2023, petitioner being aggrieved by
and dissatisfied with the impugned judgement and order of
acquittal dated 20.04.2023 passed by Ld. Judge, 1st Fast
Track Court, Bichar Bhawan in connection with Criminal
Appeal no. 251 of 2022, filed the special leave petition no.
CRMSPL 35 of 2023 with CRAN 1 of 2023 for condonation of
delay in filing special leave petition.
13. Ld. Adv. Mr. Ayan Bhattacharjee, appearing on behalf of
the petitioners in CRMSPL No. 52 of 2023 & CRMSPL 35 of
2023, by referring to chapter XXIX of the CrPC, has contended
that right of appeal protected under Section 372 of CrPC
cannot be taken away only by providing period of limitation
under Section 378(5) of CrPC.
14. Mr. Bhattacharjee in support of his contention relied on
Hukumdev Narain Yadav Vs. Lalit Narain Mishra reported
in AIR 1974 Supreme Court 480, Gopal Sardar Vs. Karuna
Sardar reported in AIR 2004 Supreme Court 3068, Patel
brothers Vs. State of Assam and others reported in (2017)
2 Supreme Court Cases 350, C. N. Rudramurthy Vs. K.
Barkathulla Khan and others reported in (1998) 8
Supreme Court Cases 275, Bengal Chemists and
Druggists Association Vs. Kalyan Chowdhury reported in
(2018) Supreme Court Cases 4, Suganthi Suresh Kumar
Vs. Jagdeeshan reported in (2002) 2 Supreme Court Cases
420, Manager, National Insurance Company Limited Vs.
Saju P. Paul and another reported in (2013) 2 Supreme
Court Cases 41 and Mangu Ram Vs. Municipal
Corporation of Delhi reported in (1976) 1 Supreme Court
Cases 392.
15. Mr. Bhattacharjee, has further contended that
Hukumdeb (supra) dealt with an election petition under
Representation of the People Act, 1951 unlike the law provided
in the CrPC.
16. On the issue of distinguishing Mangu Ram (supra), I am
in agreement with Mr. Tarafdar. After going through the case
of Mangu Ram (supra), I find that though Kaushalya Rani
(supra) was referred to but there is no reference qua
Hukumdev (supra) by a larger bench prior to Mangu Ram
(supra).
17. Before delving into the merit of this application for
condonation of delay, I find it profitable to reproduce the
provision of section 378 of CrPC as follows:-
"378. Appeal in case of acquittal.
(1) Save as otherwise provided in sub- section (2) and subject
to the provisions of sub- sections (3) and (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 acquittal passed by any Court other than a
High Court 2 or an order of acquittal passed by the Court of
Session in revision.]
(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 (25 of 1946 ), or by any other
agency empowered to make investigation into an offence
under any Central Act other than this Code, the Central
Government may also direct the Public Prosecutor to present
an appeal, subject to the provisions of sub- section (3), to the
High Court from the order of acquittal.
(3) No appeal under sub- section (1) or sub- section (2) shall
be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case
instituted upon 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.
(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.
(6) If in any case, the application under sub- section (4) 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) or under sub- section (2)."
18. In Mangu Ram (supra) and Kaushyla Rani (supra)
Hon‟ble Division Bench of Supreme Court held that the time
limit of sixty (60) days laid down in Section 417 (4) of (old)
CrPC is a special law of limitation and nothing was found in
that special law which expressly excludes the applicability of
Section 5.
19. On the other hand, larger bench of the Hon‟ble Apex
Court in Hukumdev (supra) as well as Hon‟ble Division Bench
in Gopal Sardar (supra) it was held 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 excluded their
operation.
20. More particularly, I would like to quote the observation in
Hukumdev (supra) by the Hon‟ble Larger Bench of the Apex
Court in paragraph 17 & 18:-
"17. Though Section 29(2) of the Limitation Act has been
made applicable to appeals both under the Act as well as
under the Code of Criminal Procedure, no case has been
brought to our notice where Section 29(2) has been made
applicable to an election petition filed under Section 81 of the
Act by virtue of which either Sections 4, 5 or 12 of the
Limitation Act has been attracted. Even assuming that where
a period of limitation has not been fixed for election petitions
in the Schedule to the Limitation Act which is different from
that fixed under Section 81 of the Act, Section 29(2) would be
attracted, and what we have to determine is whether the
provisions of this Section are expressly excluded in the case
of an election petition. It is contended before us that the
words "expressly excluded" would mean that there must be
an express reference made in the special or local law to the
specific provisions of the Limitation Act of which the operation
is to be excluded. As usual the meaning given in the
Dictionary has been relied upon, but what we have to see is
whether the scheme of the special law, that is in this case the
Act, and the nature of the remedy provided therein are such
that the Legislature intended it to be a complete code by itself
which alone should govern the several matters provided by it.
If on an examination of the relevant provisions it is clear that
the provisions of the Limitation Act are necessarily excluded,
then the benefits conferred therein cannot be called in aid to
supplement the provisions of the Act. In our view, 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. The provisions of Section 3 of the
Limitation Act that a suit instituted, appeal preferred and
application made after the prescribed period shall be
dismissed are provided for in Section 86 of the Act which
gives a peremptory command that the High Court shall
dismiss an election petition which does not comply with the
provisions of Sections 81, 82 or 117. It will be seen that
Section 81 is not the only Section mentioned in Section 86,
and if the Limitation Act were to apply to an election petition
under Section 81 it should equally apply to Sections 82 and
117 because under Section 86 the High Court cannot say
that by an application of Section 5 of the Limitation Act,
Section 81 is complied with while no such benefit is available
in dismissing an application for non-compliance with the
provisions of Sections 82 and 117 of the Act, or alternatively
if the provisions of the Limitation Act do not apply to Section
82 and Section 117 of the Act, it cannot be said that they
apply to Section 81. Again Section 6 of the Limitation Act
which provides for the extension of the period of limitation till
after the disability in the case of a person who is either a
minor or insane or an idiot is inapplicable to an election
petition. Similarly, Sections 7 to 24 are in terms inapplicable
to the proceedings under the Act, particularly in respect of the
filing of election petitions and their trial.
18. It was sought to be contended that only those
provisions of the Limitation Act which are applicable to the
nature of the proceedings under the Act, unless expressly
excluded, would be attracted. But this is not what Section
29(2) of the Limitation Act says, because it provides that
Sections 4 to 24 (inclusive) shall apply only insofar as, and to
the extent to which, they are not expressly excluded by such
special or local law. If none of them are excluded, all of them
would become applicable. Whether those Sections are
applicable is not determined by the terms of those Sections,
but by their applicability or inapplicability to the proceedings
under the special or local law. A person who is a minor or is
insane or is an idiot cannot file an election petition to
challenge an election, nor is there any provision in the Act for
legal representation of an election petitioner or respondent in
that petition who dies, in order to make Section 16 of the
Limitation Act applicable. The applicability of these provisions
has, therefore, to be Judged not from the terms of the
Limitation Act but by the provisions of the Act relating to the
filing of election petitions and their trial to ascertain whether
it is a complete code in itself which does not admit of the
application of any of the provisions of the Limitation Act
mentioned in Section 29(2) of that Act."
21. Hukumdeb (supra) & Gopal Sardar (supra) dealt with
election petition under Section 81 of the Representation of the
People Act, 1951 and Section 8 of the Land Reforms Act
respectively. In both the cases Hon‟ble Apex Court dealt with
two separate special Acts in terms of Section 29 of the
Limitation Act and laid down a principle whereby Court can
interpret the special law/statute with regard to implied
exclusion of the limitation Act unlike that of ours.
22. In the case at hand, I am dealing with the Provision of
Section 378(4) of CrPC giving right to prefer an appeal to the
petitioner/complainant against the order of acquittal. The
Provision of Section 378(5) specifically prohibits the High
Court to entertain any special leave application after 60 days
from the day of order of acquittal. Admittedly, the petition
seeking special leave to appeal was filed after 274 days from
the date of expiry of the period of limitation prescribed therein.
The words " 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 (6)
months, where the complainant is a public servant, and sixty
(60) days in every other case, computed from the date of that
order of acquittal. Now the question is whether codification of
the provision clearly reflects the intention of the legislature
regarding non-applicability of the Section 5 i.e. condonation of
any kind of delay or not.
23. At this stage, I am unable to hold me back from referring
to a judgement of Saroja Narasimhan Vs. Vijaya Sharma
reported in 2020 SCC OnLine Kar 5108 wherein Hon‟ble
Single Judge, by his great deal of efforts, dealt with almost all
the judements of the Hon‟ble Apex Court including Hukumdeb
(supra) and Gopal Sardar (supra) in deciding the issue of
applicability of Section 5 of the Limitation Act for condonation
of delay in filing special leave petition for appeal against
acquittal under Section 378 (5) of the Code of Criminal
Procedure.
24. Hon‟ble Single Judge expounded the issue of applicability
of Section 5 with clarity leaving hardly any scope for further
elucidation by drawing a final decisions as follows:-
" 50. Before adverting to the above said question to be
answered, we must bear in mind, the general principles with
regard to the right of appeal recognized under the statute which
should be very jealously safeguarded by the Courts. The Court
should bear in mind when right is recognized that should not be in
any manner allowed to be frustrated on the ground of
technicalities particularly delay and the Court should not become
handicapped in order to advance substantial justice and in order
to safeguard the rights, liabilities recognized under the statute
unless the statute itself prohibits the court doing that exercise. The
correctness of the judgment or an order of acquittal by preferring
an appeal to the High Court is conferred upon the victim, even it
gone to the extent of providing such right to the LRs. and others as
defined under Section 2(wa) of Cr. P.C. under the proviso to
Section 372. The rider is only that they have to obtain leave of the
High Court under the said provision and special leave under the
provisions of sub-sections (4) and (5) of 378 of Cr. P.C. Therefore, it
is settled principle of law that right to an appeal is a statutory right
or a creature of statute and no other right to file an appeal can be
recognized and dehorse a statute. Therefore, though Section 378(4)
and (5) right to appeal is created under the statute otherwise than
that no appeal can be filed unless it is clearly expressed in the
terms of a statute. The rights created under the substantive laws
are called as substantive rights and not merely a matter of
procedure. Once the right of appeal is vested, which can be
exercised when the adverse judgment is pronounced. Such right is
governed by substantive law and how it has to be exercised are
governed by procedural laws. Therefore, exercising right in a
particular manner by following certain procedures should always
take the back seat and the substantive right of a person occupies
the front
seat. Hence, the court should also bear in mind that, there is a
basic distinction between the right of suit and the right of appeal.
There is an inherent right in every person to prefer an appeal
under the statute. An appeal is the right to enter a superior court
and invoking its aid and interposition to redress the error of the
trial courts. In an appeal, the main question to be considered by
the appellate court is whether the order of the court from which the
appeal is brought was right or erroneous, illegal or irregular. Thus,
the right of appeal and consideration of that right is a paramount
compared to the procedure for hearing the appeal. Therefore, the
courts must be fair enough to ascertain the workability of the
appeals as provided both under substantive laws and procedural
laws.
51. In this back ground, the courts should also bear in mind
that the rules or procedure like application to be filed for
condonation of delay under Limitation Act are not meant to totally
destroy the rights of the parties recognized under substantive
laws. The riders under the procedural law are only meant to see
that the parties do not resort to dilatory tactics. In such an
eventuality, only the strict rule of procedure has to be adopted.
But, if the court is of the opinion that the parties very promptly
seek their remedy without adopting any dilatory tactics too
reasonably and genuinely prevented from exercising their
substantive right, in such an eventuality, adopting of strict
procedure may not be advisable. Therefore, the object of providing
legal remedy is to repair the damage caused by reason of legal
injury.
52. Of course, the law of limitation fixes a life span for such
legal remedy for the redress of the legal injuries so suffered. Of
course, time is very precious and wasted time would never revisit.
During the efflux of time, newer causes would sprout up
necessitating newer persons to seek legal remedy by approaching
the courts. Therefore, the life span must be fixed for each remedy.
Such life span should also be interpreted in such a manner it
would definitely advance substantial justice rather than disturbs
the right created under a statute. The law of limitation is thus
founded on public policy. It is enshrined in the maxim interest
reipublicae up sit finis litium i. e., it is for the general welfare that a
limitation period be put to litigation. Therefore, Rules of Limitation
are not meant to destroy the rights of the parties but to regulate the
dilatory tactics that may be ventured by the parties to curb such
persons who approaches the court with unclean hands. Therefore,
the total idea is that, every legal remedy must be kept alive for a
legislatively fixed period of time subject to other provisions given
for relaxation of fixed period of time by exercising the discretion of
the court considering the genuineness of the reasons provided for
such condonation of delay.
53. It is true that the maxim vigilantibus non dormientibus jura
subveniunt i. e., law assists those who are vigilant and not those
who sleep over their rights is strictly applicable, but, even a
vigilant litigant some time may prone to commit mistakes. Those
mistakes may be beyond his control. Therefore, the general
principle is that - to err is human‟ is more a practiced notion of
human behaviour than an abstract philosophy. Therefore,
sometimes, unintentional lapse on the part of a litigant should not
normally close the doors of the judicature permanently where still
there exists right vested with such person. Therefore, the ultimate
effort of the court should not be one of finding means to pull down
the doors of the court but to advance the justice substantially even
considering all other procedural laws.
54. In this background, in almost all the substantive laws
where the rights, liabilities and disabilities are recognized and the
procedural laws connected with those laws, definitely enshrined
jealously safeguarding the substantial rights.
55. In the above said backdrop, the court has to examine the
real controversy in this particular case.
56. Now, the court has to examine the special law i.e.,
Section 378(4) & (5) of Cr. P.C., whether it expressly or impliedly
excludes the application of Limitation Act Sections 4 to 24. Under
the old Limitation Act, which I have already referred to above,
there was a specific exclusion of application of Section 5 of the
Limitation Act. But, under the new Act, such provision is not
available but the new act says that if the special law or the law
otherwise than the Limitation Act, which prescribes any period of
limitation on its own, in such an eventuality, such limitation should
be treated as the limitation prescribed under Section 3 of the
Indian Limitation Act. However, Section 29(2) also says that if the
other provisions of the Limitation Act i. e., Sections 4 to 24, if not
specifically excluded by the special law, in such an eventuality,
the provisions of Sections 4 to 24 can be very well invoked even
under the special law to extend the period of limitation on the
grounds recognized under the provisions of the Limitation Act.
57. In the light of the above said legal mandate, as could be
seen from Section 378 of Cr. P.C. and any of the provisions under
the Cr. P.C. as we have already defined which prescribes a special
period of limitation, in contrast with the Limitation Act, but there is
no express exclusion of the provisions of the Limitation Act.
Express exclusion of the words used in the legal parlance means,
it specifically says that there must be specific wordings in the
special statute or a special provision stating that, the application of
the provisions of the Limitation Act or any particular provision of
the Limitation Act, is „Expressly‟ excluded. Otherwise, the court
has to examine whether by means of other circumstances, the
court can infer such an exclusion. Plainly said that the above said
provision Section 378 does not expressly exclude the provisions of
Limitation Act, as no such specific or synonymous words are used.
Therefore, I have to examine whether by means of other
implications such exclusion can be inferred by the court.
58. The implied exclusion can be inferred by the court in two
specific circumstances. (1) If the special provision is provided under
the Act itself empowering or giving discretion to the court to
condone the delay even after the appeal, applications are filed
beyond the period of limitation fixed by the special statute; (2)
Secondly, if on perusal of the special statute itself, if the special
statute whether as provided the period of limitation and also
further period giving discretion to the court to condone such delay.
In other
provisions of the same statute, but excluding a particular provision
in such an eventuality also, the Court can draw such inference.
Now, I will examine the above said two aspects one by one.
59. The Hon'ble Apex Court in the case of Commissioner of
Sales Tax Uttar Pradesh, Lucknow and Parga... Kanpur1, while
dealing with the question of limitation, in relation to revision filed
beyond time prescribed by Section 10 of UP Sales Tax Act, 1948
has made an observation that. --
"The principle that emerges is that if the legislature in a special
statute, prescribes a certain period of limitation for filing a
particular application thereunder provides in dear terms that for
such period sufficient cause being shown may be extended, in the
maximum, only upto a specified time limit and no further - then the
Tribunal concerned has no jurisdiction to treat within the period of
limitation, application filed before it beyond which minimum time
limit specified in the statute by excluding the time spent in
prosecuting an act, fall and due diligence under Section 14(2) of
the Limitation Act. this particular principle is also can be gathered
in a decision already referred to in Commissioner of Customs and
Central Excise v. Hongo India Private Limited, (2009) 5 SCC 791,
which I have already referred to in detail."
60. The same principle is also enunciated in another decision
which I have already referred to in Bengal Chemists v. Druggists
and Kalyan Chowdhury2. In the above said case, though the
period of limitation for filing Application, Revision, Appeal etc., are
prescribed, a further period is also fixed by the statute giving
discretion to the court to condone such delay as fixed by the
statute and it specifically excludes the discretion of the court to
condone the delay except that further period of limitation fixed by
the statute. Therefore, it clearly discloses that if two limitation
periods are fixed one limitation period fixing the period of limitation
for the purpose of filing appeal, revision, review, applications etc.,
and another further period of limitation giving discretion to the
courts to condone the delay, in such circumstance, it virtually
amounts to substitution of Section 5 of the Limitation Act in the
special statute itself empowering the court to condone only such
delay as fixed by the statute.
61. In the above said background, if the provision of Section
378(4) and (5) particularly sub clause (5) the said provision is
examined, it prescribes the period of limitation of 60 days only for
the purpose of filing an application for special leave. No further
period of limitation is fixed giving any discretion to the court to
condone such delay of any period more than 60 days as fixed by
the statute. Therefore, it clearly goes to show that the court cannot
infer even an implied exclusion of the provisions of the Limitation
Act if we read Section 378 in proper perspective.
62. The next important point is that whether on analysis of the
entire special statute itself, whether implied exclusion can be
inferred to the effect that application of Limitation Act is excluded
so far as Section 378 (4) and (5) alone is concerned. This has to be
thrashed out by examining the other provisions of the Cr. P.C. So
far as the appeals and applications are concerned, on thorough
examination, under the special statute in respect of the various
other provisions relating to filing of appeals under Chapter XXIX of
the Code and revisions though specific provisions are made with
reference to fixing the period of limitation to file Appeals, Revisions,
Applications etc., but, in none of the said provisions, the
application of Section 5 of the Limitation Act is not specially made
applicable nor the said provisions are expressly excluded.
Therefore, when the other provisions of Cr. P.C. does not exclude
the application of Section 5 of the Limitation Act nor it is made that
Section 5 is made applicable to other provisions specifically
excluding Section 378 of Cr. P.C. Therefore, the court cannot infer
that the application of the Limitation Act in view of section 29(2)
and inturn the application of Sections 4 to 24 of the Limitation Act
are specifically expressed or impliedly excluded for provision under
Section 378 (5) of Cr. P.C.
63. Therefore, in my opinion, neither the provisions of the
Indian Limitation Act has specifically or expressly excluded nor
there is any indication in the special statute itself that the
provisions of Limitation Act are impliedly excluded.
64. For the above said reasons, I am of the considered opinion
that the provisions of the Limitation Act as enunciated under
Section 29(2) of the Indian Limitation Act can be very well pressed
into service and intum it can be unequivocally said that the
provisions of Limitation Act from Sections 4 to 24 are very well
applicable for the purpose of condoning the delay in filing the
application under sub-sections (4) and (5) of Section 378 of Cr.
P.C. for Special Leave to prefer an appeal filed after the period of
limitation fixed under that provision, if sufficient ground are made
out as contemplated under section 5 of the Limitation Act."
25. I am agreeable with the ratio of Saroj Narasimhan
(supra) as there is nothing provided in special Provision under
Section 378 (5) of Code of Criminal Procedure towards
discretion to the Court for condoning delay in the case of filing
of appeal beyond period prescribed in the Provision of Section
378(5) of the CrPC to exclude the application of Limitation Act.
Therefore, language of Section 378(5) of CrPC cannot be said
to have excluded applicability of Section 5 of the Limitation
Act.
26. In CRAN 1 of 2023 of CRMSPL 27 of 2023, I am dealing
with the question of validity of the grounds for condonation of
delay, I find it convenient to refer to the principle laid down in
Swadeshi Cotton Mills (supra), particularly in paragraph 3:-
" 3. We do not think that in this case it is necessary for us to
consider whether Article 226 can be used for challenging the
validity of the orders passed prior to January 26, 1950. But
we are in agreement with the High Court on the other two
grounds. As mentioned earlier, the impugned assessments
were made in 1949. The writ petition was filed in 1956. The
explanation given by the petitioner for this long delay is that
he did not know the correct legal position and he came to
know about the same after the decision of the Allahabad
High Court in the Commissioner of Sales Tax, U.P. v. Modi
Food Products Ltd. [(1955) 6 STC 287] . Every individual is
deemed to know the law of the land. The courts merely
interpret the law and do not make law. Ignorance of law is
not an excuse for not taking appropriate steps within
limitation. Therefore the argument that the appellant did not
know the true legal position is not one that can be accepted
in law. That apart, even after the High Court rendered its
decision in ModiFood Products' case [(1955) 6 STC 287] the
petitioner did not move the High Court for over several
months. There is no satisfactory explanation for that delay.
That being so, the High Court was fully justified in refusing to
exercise its discretion under Article 226 of the Constitution in
favour of the appellant."
27. In this regard, I am not also obliterate to refer the
observation of our Co-ordinate Bench in C.O. No. 2203 of
2019 particularly in paragraph 20, 21& 25 as quoted below:-
" 20. Although it is well‐settled that the principle, that
ignorance of law is no excuse for not complying with a
statutory provision, is diluted by the settled juristic view that
wrong advice of a counsel can be set up as a defence, the
former, rather than the latter principle, applies to the present
case. It is seen from the application for condonation of delay
that the only ground for delay, repeatedly iterated in the
application, was the ignorance of law of the petitioner, which
is not a valid ground in law.
21. Nowhere in the application for condonation did the
petitioner plead that he was wrongly advised by the counsel
about filing the applications under Section 7, sub‐sections (1)
and (2) in time.
25. Alleviating factors such as illiteracy, poverty or other
components which could indicate that the petitioner was
underprivileged and did not have proper legal assistance or
the means to be appropriately advised, or was rustic or
naïve, are entirely absent in the present case. Thus the
petitioner has to own up to the delay caused in filing the
applications‐in‐question."
28. In this regard, I cannot refrain myself from referring to a
order of Hon‟ble Apex Court in M/s. Laxmi Srinivasa R and P
Boiled Rice Mill Vs. The State of Andhra Pradesh & Anr
reported in 2022 LiveLaw (SC) 964 wherein Hon‟ble Apex
Court divided the term „condonation of delay‟ and „proceeding
in wrong forum‟ in terms of Section 14 of the Limitation Act,
as quoted below:-
" Leave granted.
The impugned order passed by the High Court affirming the
order dated 27.04.2018 passed by Appellate Deputy
Commissioner (CT) (FAC), Vijayawada, holding that the delay is
beyond condonable period is unsustainable in law.
It is an accepted position that the appellant had filed a writ
petition before the High Court on 24.02.2018, which was not
entertained vide the order dated 07.03.2018 on the ground that
the appellant should approach the Appellate Authority. The
appellant is entitled to ask for exclusion of the said period in terms
of Section 14 of the Limitation Act, 1963. Exclusion of time is
different, and cannot be equated with condonation of delay. The
period once excluded, cannot be counted for the purpose of
computing the period for which delay can be condoned. Of course,
for exclusion of time under Section 14 of the Limitation Act, 1963,
the conditions stipulated in Section 14 have to be satisfied.
In the facts of the present case, we find that the period from
the date of filing of the writ petition on 24.02.2018 and the date on
which it was dismissed as not entertained viz. 07.03.2018, should
have been excluded. The writ proceedings were maintainable, but
not entertained. Bona fides of the appellant in filing the writ
petition are not challenged. Further, immediately after the
dismissal of the writ petition, the appellant did file an appeal
before the Appellate Authority. On exclusion of the aforesaid
period, the appeal preferred by the appellant would be within the
condonable period. Accordingly, we direct that the application for
condonation of delay filed by the appellant would be treated as
allowed. The delay is directed to be condoned.
Recording the aforesaid, the appeal is allowed with the
direction that the Appellant Authority would examine the appeal on
merits.
We clarify that have not expressed any opinion on the merit of
the case. Pending application(s), if any, shall stand disposed of."
29. In this case, judgement of acquittal was passed on
31.05.2022 and within statutory period petitioner filed an
appeal before the Ld. Chief Judge, City Sessions Court,
Calcutta. In the mean time a Co-ordinate Bench of this Court
was pleased to hold inter alia that an appeal agisnt acquittal in
a case under the Negotiable Instrument Act could not lie to a
court of sessions. Immediately, thereafter, application was
filed before the Sessions Court wherein an order was passed
on 02.05.2023 dismissing the appeal with a liberty to the
petitioner to file afresh before the appropriate forum. The
special leave petition was filed on 18.05.2023 before this
Court. Therefore, in our case, delay of filing special leave
petition cannot be considered as ignorance of law in terms of
facts and principle enunciated in Swadeshi Cotton Mills
(supra).
30. In the aforesaid view of the matter, delay is condoned.
Thus, CRAN 1 of CRMSPL 27 of 2023 stands disposed of.
31. In CRAN 1 of 2023 in respect of CRMSPL 52 of 2023
Hon‟ble Justice Tirthankar Ghosh of Coordinate Bench
granted liberty to the petitioner to file special leave petition
under Section 378(4). Thus, delay is condoned. CRAN 1 of
2023 in connection with CRMSPL 52 of 2023 stands disposed
of.
32. In CRAN 1 of 2023 in respect of CRMSPL 35 of 2023
delay of 11 days has been explained in paragraphs 4 to 6.
Delay is condoned. Thus, CRAN 1 of 2023 in connection with
CRMSPL 35 of 2023 stands disposed of.
In Re: CRMSPL No. 27 of 2023
33. The leave petition is filed seeking leave to file appeal
against judgment and order of acquittal dated 31.05.2022
passed by Ld. Metropolitan Magistrate, 4th Court, Calcutta in
connection with CS No. 638/2012 under Section 138 of the
Negotiable Instrument Act, 1881.
Peruse the judgement.
Leave is granted.
Petitioner is directed to file appeal within statutory period.
34. Thus, CRMSPL No. 27 of 2023 stands disposed of.
In Re. CRMSPL 52 of 2023
35. The leave petition is filed seeking leave to file appeal
against judgment and order of acquittal dated 10.11.2022
passed by Ld. Judge, Fast Track Court, City Sessions Court,
in connection with Appeal No. 221/2019.
Peruse the judgement.
Leave is granted.
Petitioner is directed to file appeal within statutory period.
36. Thus, CRMSPL No. 52 of 2023 stands disposed of.
In Re. CRMSPL 35 of 2023
37. The leave petition is filed seeking leave to file appeal
against judgment and order of acquittal dated 20.04.2023
passed by Ld. Judge, 1st Fast Track Court, City Bichar
Bhawan, in connection with Appeal No. 250/2022.
Peruse the judgement.
Leave is granted.
Petitioner is directed to file appeal within statutory period.
38. Thus, CRMSPL No. 35 of 2023 stands disposed of.
39. All parties to three applications shall act on the server
copy of this order downloaded from the official website of this
Court.
40. Urgent Photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
[BIBHAS RANJAN DE, J.]
