WHETHER TIME LIMIT TO GRANT SPECIAL LEAVE TO APPEAL CAN BE EXTENDED BY SECTION 5 OF LIMITATION ACT, 1963
By M. Karunanithi, B.Sc., B.L., Advocate,
Madurai Bench of Madras High Court
An appeal against acquittal has been provided in Section 378(1) to (6) of Code of Criminal Procedure. Proviso 4 to 6 of Section 378 of Cr.P.C., speaks about the grant of special leave. In order to have better appreciation the relevant provision of law is extracted hereunder.
378 Appeal in case of acquittal – (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 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 be under Sub-section (1) or under Section (2).
As per sub-section (5) of Section 378 Cr.P.C., Special Leave has to be obtained from the date of order of acquittal within sixty days, in a case instituted by private complainant like complaint under Section 138(A) of N.I. Act.
Now, the vital question is whether the period of sixty days for the grant of special leave can be extended by application under Section 5 of Limitation Act. To what extent Limitation Act shall apply?
An Act to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith, Parliament enacted “The Limitation Act, 1963 and came into force with effect from 1.1.1964”.
Section 29(2) of the Limitation Act 1963, is governing the field, hence same is given below.
Section 29 – Savings - (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 in the purpose of determining any period of limitation prescribed for any suit, appeal, application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only so far as, and to the extend to which they are not expressly excluded by such special or local law.
If sub-section (5) of Section 378 Cr.P.C., is a special law as contemplated under Section 29(2) of Limitation Act, then the limitation of 60 days as coined in 378(5) Cr.P.C., can not be extended. So, we have to analyze whether the two conditions mentioned in Section 29(2) are satisfied by Section 378(5) Cr.P.C. The two essential ingredients of Section 29(2) of the Limitation Act are
(1) There must be a provision for period of limitation under any special law a local law in connection with any suit, appeal or application.
(2) The said period of Limitation under special or local law should be different from the period prescribed by the Schedule to the Limitation Act. If above two points are satisfied then Section 29(2) will be applicable as decided in AIR 1995 SC 2272 Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobaker.
Let us see Section 378(5) Cr.P.C. is satisfies Section 29(2) of Limitation Act
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Limitation under Section 378(5) Cr.P.C.
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Limitation as per Schedule in Limitation Act
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60 days from the date of acquittal
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Second Division appeals. Art. 114. Appeal from an order of acquittal.
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(a)
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Under Sub-section (1) or Sub-section (2) of Section 417 of Cr.P.C., 1898 - Ninety days – The date of the order appealed from (Time from which period begins to run)
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(b)
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Under Sub-section (3) of Section 417 of Cr.P.C. – Thirty days - The date of the grant of special leave (Time from which period begins to run)
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Thus, (1) Section 378 (5) Cr.P.C. prescribes period of Limitation and it substantially differs from Art. 114 of the Limitation Act, 1963. Hence, Section 29(2) of the Limitation Act will be applicable to Section 378(5) Cr.P.C. Thus, it is very clear that an appeal against acquittal in a complaint case can be filed within 60 days from the date of order of acquittal.
Analysis on the basis of the case laws:
(1) AIR 1970 SC 1093 – Lala Ram Vs. Hariram – The above case was decided by Three Judges Bench of the Hon’ble Supreme Court. In para 8, the Full Bench decision of Hon’ble Bombay High Court in Anjana Bai Vs. Yeshwantrao Daulatrao reported in AIR 1961 Bombay 154 was approved and thereby Section 5 of Limitation Act is not applicable.
(2) AIR 1971 SC 1115 – The Assistant Registrar of Companies, West Bengal, Calcutta Vs. Standard Pain Works (Pvt) Ltd., and others – In the above case the application of Section 417(4) Cr.P.C., (1898) was discussed and held that without obtaining special leave within time prescribed by Section 417(4) Cr.P.C., is incompetent and barred by limitation. Section 417(4) Cr.P.C., (1898) is similar to Section 378(5) Cr.P.C., 1973
(3) (2013) 2 SCC 17 – Subhash Chand Vs. State (Delhi Administration) – In the above case, legal position has to pre and post 2005 amendment were compared and decided with regard to appeal against acquittal.
(4) AIR 1976 SC Page 105 – Mangaram and another Vs. Municipal Corporation of Delhi. – The above case was decided by the Two Judges Bench of Hon’ble Supreme Court and held that Section 5 of Limitation Act is applicable to Section 378(5) Cr.P.C.
(5) In earlier decision reported in AIR 1964 SC 260 – Kaushalya Rani Vs. Gopal Singh - It has been held that Section 5 of the Limitation Act does not apply to Section 417(4) of Cr.P.C. It has been decided by Three Judges Bench of Hon’ble Supreme Court.
Since, the law laid down by the larger Bench has to be followed as per the law of precedents the law laid down in Kaushalya Rani Vs. Gopal Singh is the law governing the field as on today and the same has not been overruled by the Hon’ble Apex Court.
Thus, Section 5 of Limitation Act has no application. One can argue that there is conflict between law and equity and on applying equity period of Limitation as mentioned in Section 378(5) Cr.P.C. has to be extended. But in a case of conflict between law and equity; it is the law which has to prevail, in accordance with the Latin maxim “duna lex sed lex”, which means “the law is hard, but it is the law”. Equity can only supplement the law, but is can not override it. This has been decided in the following case law.
2007 (2) SCC 230 – Raghunath Rai Bareja vs. Punjab National Bank.
Hence, it is crystal clear that the period of sixty days for obtaining special leave to appeal against acquittal in a complaint case can not be extended with an aid of Section 5 of Limitation Act, 1963.