2024 (3) TMI 774 - HC - Income Tax

Bombay HC has jurisdiction to condone delay in filing leave applications against acquittal under Code of 1973

Bombay HC held that it has jurisdiction to condone delay in filing applications for leave to appeal against acquittal under the Code of 1973. Following SC ... Power to condone delay - appeal against acquittal under Section 378 Cr.P.C. - extension of time under Section 5 of the Limitation Act, 1963 - exclusion of Limitation Act by a special law under Section 29(2) of the Limitation Act, 1963 - doctrine of binding precedent of the Supreme Court - special law doctrinePower to condone delay - appeal against acquittal under Section 378 Cr.P.C. - extension of time under Section 5 of the Limitation Act, 1963 - exclusion of Limitation Act by a special law under Section 29(2) of the Limitation Act, 1963 - doctrine of binding precedent of the Supreme Court - Maintainability of an application for condonation of delay in instituting an application seeking special leave to appeal against an acquittal under Section 378 Cr.P.C. - HELD THAT: - The High Court held that it is bound by the decision of the Hon'ble Supreme Court in Mohd. Abaad Ali v. Directorate of Revenue Prosecution Intelligences, which considered and rejected contentions that Section 378 Cr.P.C. or any other provision of the Code operates as a special law excluding the applicability of Section 5 of the Limitation Act, 1963. The Court noted that Mohd. Abaad Ali examined the relationship between the old and new Codes and Limitation Acts, dealt with precedents including Kaushalya Rani, Mangu Ram, Gopal Sardar and Hukumdev Narain Yadav, and concluded that Section 5 (read with Sections 2 and 3) of the Limitation Act is available in appeals against acquittal unless a special law expressly excludes it. Reliance on the binding nature of the Supreme Court's ratio and authorities concerning stare decisis led the Court to reject attempts to revisit or distinguish that precedent on grounds that certain arguments were not earlier urged or inadequately considered. For these reasons the Court held that there is power and jurisdiction to condone delay in filing an application seeking leave to appeal against an acquittal or in entertaining an appeal against acquittal under the Code of 1973. [Paras 14, 16, 24, 27, 32]The application for condonation of delay in seeking special leave to appeal against acquittal is maintainable; the High Court will follow the Supreme Court's decision in Mohd. Abaad Ali and decline to revisit that precedent.Power to condone delay - merits of cause shown for condonation - Further disposal and remand for adjudication on merits of the condonation application - HELD THAT: - Having held the application to be maintainable, the Court refrained from adjudicating the merits of the cause shown for condonation of delay. The Single Judge is directed to proceed to consider Criminal Misc. Application No. 253 of 2019 on its merits. The High Court thus confined its decision to the jurisdictional question and remitted the matter for fact-specific and merit-based determination by the learned Single Judge. [Paras 33, 34]Reference disposed; matter remitted to the learned Single Judge to decide the condonation application on merits.Final Conclusion: The reference is disposed by holding that the High Court has the power to condone delay in instituting an application seeking special leave to appeal against an acquittal (the Court will follow Mohd. Abaad Ali). The question of maintainability is answered in favour of the applicant Department and the matter is remitted to the Single Judge to decide the condonation application on its merits. Issues Involved:1. Maintainability of the application seeking condonation of delay.2. Applicability of Sections 4 to 24 of the Limitation Act, 1963, to appeals against acquittal u/s 378(4) and (5) of Cr.P.C.3. Whether the Supreme Court's judgment in Mangu Ram v/s. Municipal Corporation of Delhi is per incuriam.4. Interpretation of the judgment in Gopal Sardar v/s. Karuna Sardar.5. Applicability of the test laid down in Hukum Dev Narain Yadav v/s. Lalit Narain Mishra.6. Maintainability of the application for condonation of delay by the applicant department.Summary:1. Maintainability of the Application Seeking Condonation of Delay:The applicant sought special leave to appeal against the order dated 07.10.2017, which dismissed its criminal complaint and acquitted the respondent. The application was filed 480 days beyond the prescribed period of limitation, leading to the filing of Criminal Misc. Application No. 253/2019 for condonation of delay. The respondent raised a preliminary objection regarding the maintainability of this application, arguing that there is no power to condone the delay in such matters.2. Applicability of Sections 4 to 24 of the Limitation Act, 1963:The learned Single Judge referred the matter to a larger bench to address the significant question of whether Sections 4 to 24 of the Limitation Act, 1963, are expressly excluded under Section 378(4) and (5) of Cr.P.C. The bench considered several decisions, including the Supreme Court's judgment in Mohd. Abaad Ali v/s. Directorate of Revenue Prosecution Intelligences, which held that the benefit of Section 5 of the Limitation Act can be availed in an appeal against acquittal u/s 378 of Cr.P.C.3. Whether Mangu Ram v/s. Municipal Corporation of Delhi is Per Incuriam:The respondent contended that the judgment in Mangu Ram is per incuriam because it did not consider the earlier judgment in Hukum Dev Narain Yadav. The Supreme Court in Mohd. Abaad Ali addressed this contention, explaining that Mangu Ram correctly distinguished Kaushalya Rani and held that Section 29(2) of the Limitation Act, 1963, does not exclude the application of Section 5.4. Interpretation of Gopal Sardar v/s. Karuna Sardar:The respondent argued that Gopal Sardar suggests that Mangu Ram is not good law. However, the Supreme Court in Mohd. Abaad Ali rejected this argument, clarifying that Gopal Sardar dealt with a different context and did not overrule Mangu Ram.5. Applicability of the Test Laid Down in Hukum Dev Narain Yadav:The bench considered whether the test laid down in Hukum Dev Narain Yadav should be applied to applications for special leave to appeal u/s 378(4) and (5) of Cr.P.C. The Supreme Court in Mohd. Abaad Ali held that the test does not exclude the applicability of Section 5 of the Limitation Act to such applications.6. Maintainability of the Application for Condonation of Delay by the Applicant Department:The Supreme Court's decision in Mohd. Abaad Ali answered all contentions raised by the respondent, affirming that the High Court has the power to condone the delay in filing an application seeking leave to appeal against an acquittal. The bench concluded that the application for condonation of delay filed by the applicant department is maintainable.Conclusion:The reference was disposed of by holding that the application for condonation of delay is maintainable. The matter was directed to be placed before the learned Single Judge to decide on the merits and demerits of the cause shown in the application.