TaxTMI 
TaxTMI 
2009 (1) TMI 931
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....rocedure, 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 ....
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....ub-section 5 of section 378 of the said Code which reads thus :- "378. Appeal in case of acquittal :- (1) ... ... (2) &nb....
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....ection 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 Kaushala 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 ....
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....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 th....
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....vation 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 judgement, 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 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....
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....tended 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....