Benefit of Sec.5 of Limitation Act, 1963 can be availed in an appeal against acquittal; No exclusionary provision exists u/s 378 of CrPC: Supreme Court
Justices Sudhanshu Dhulia & Prasanna Bhalachandra Varale [20-02-2024]

Read Order: MOHD ABAAD ALI & ANR v. DIRECTORATE OF REVENUE PROSECUTION INTELLIGENCE [SC- CRIMINAL APPEAL NO. 1056 OF 2024]

Tulip Kanth

New Delhi, February 22, 2024: Expounding on the law relating to limitation, the Supreme Court has clarified that Section 5 of the old Limitation Act, 1908 will not apply when the period of limitation is given in special Acts whereas 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.

The present appellant, before the Top Court, was one of the four accused in a case instituted under Section 135(1)(b) of Customs Act, 1962. He faced trial where he was ultimately acquitted by the Additional Sessions Judge, North, Delhi vide an order passed in 2012.

Against the order of acquittal, the Directorate of Revenue Intelligence filed an appeal before the High Court under Section 378 of CrPC and the same 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.

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, had been prescribed u/s 378(5) of CrPC itself, where there is no provision for condonation of delay. By an order of 2017, the Delhi High Court dismissed the application for recall filed by the appellant, although no reasons were assigned while dismissing the application under Section 482.

This order was challenged before the Supreme Court the grounds that the High Court 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. It was stated that 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 an appeal against acquittal. In support of the arguments, the appellant relied upon the judgment in Kaushalya Rani v. Gopal Singh [LQ/SC/1963/222].

Referring to Section 29(2) of the old Limitation Act, the Division Bench of Justice Sudhanshu Dhulia and Justice Prasanna Bhalachandra Varale opined 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. Section 5 of the old Act was expressly excluded in cases where special law or local law provides for a period of limitation.

The Bench took note of the fact that subsequent to the decision of this Court in Kaushalya Rani (supra), this Court in Mangu Ram v. Municipal Corporation of Delhi, [LQ/SC/1975/412] 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, it added.

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.

“There can be no quarrel with the argument that where a special law prescribes a period of limitation, Section 5 of the Limitation Act would have no application, subject only to the language used in the special statute. The language prescribing a period of limitation is an important factor as well”, the Bench noted.

The Top Court also referred to Gopal Sardar v. Karuna Sardar  [LQ/SC/2004/317] wherein it was opined 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. According to the Bench, Neither Hukumdev Narain Yadav v. Lalit Narain Mishra nor Gopal Sardar(Supra) 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 Bench concluded the matter by further observing, “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.”

Thus, vacating the interim order, the Bench directed the Registry to apprise these proceedings to the Delhi High Court so that the matter may continue.