Judgment :- The complainant in S.T.No.4168/1999, filed under Sections 341 and 323 read with S.34 of the Indian Penal Code, was absent when the case was called before the Judicial First Class Magistrate, Thiruvananthapuram. All the seven accused in the case were present. The application of the complainant filed by the concerned counsel was rejected. The accused were acquitted under Section 351(3) Cr.P.C. 2. The petitioner came up before this court by filing the above application for condoning the delay of 1026 days in preferring the Special leave Petition under Section 5 of the Limitation Act. 3. The respondents/accused appeared. They have filed a counter. The main contentions are two fold, viz; Section 378(5) of the Code of Criminal Procedure Code being a self contained provision, Sections of the Limitation Act is inapplicable and the facts pleaded in the affidavit of the Advocate alone cannot be accepted and acted upon to condone the very long delay of 1026 days. 4. Learned counsel for the petitioner submitted that because the Clerk, who was working with him, had left the office and also due to repeated catastrophe in his family life, he was unable to file the Special Leave petition in time, that caused the delay, that the Criminal Procedure Code is not expressly excluding the application of Section 5 of the Limitation Act and hence the same may be applied and the delay condoned. 5. Learned counsel for the petitioner had relied on Mukri Gopalan v. C.P. Aboobacker (AIR 1995 S.C. 2272) and argued that though the Criminal Procedure Code is a special provision, there being no express exclusion of the application of Section 5 read with Section 29(2) of the Limitation Act, as amended in 1963, Section 5 may be applied and delay condoned. Mukri Gopalan’s case was based on Kerala Building (Lease and Rent Control) Act. Section 18 of the Rent Control Act was in question. The High Court of Kerala held that the appellate authority being a persons designate, under the Rent Control Act, Section 5 of the Limitation Act is inapplicable. That position had been overruled by the Apex Court. Accordingly, Section 5 had been made applicable even to the Kerala Rent Control Act. 6. The learned counsel for the respondent/accused had placed reliance on Kaushalya Rani v. Gopal Singh (AIR) 1964 S.C. 260). That position had been overruled by the Apex Court. Accordingly, Section 5 had been made applicable even to the Kerala Rent Control Act. 6. The learned counsel for the respondent/accused had placed reliance on Kaushalya Rani v. Gopal Singh (AIR) 1964 S.C. 260). After discussing about the General Law, Special law and application of Section 5 of the Limitation Act to Special Leave Petitions under Code of Criminal Procedure, the court held that: “…… It is a general law in the sense that it lays down the general rule governing such relationship, but it may contain special provisions relating to bar of time, in specified cases different from the general law of limitation. Such a law will be a ‘special law’ with reference to the law generally governing the subject matter of the kind of relationship. A special law therefore, means a law enacted for special cases, in special circumstances, in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. In that sense, the Code is a general law regulating the procedure for the trial of criminal cases, generally; but if it lays down any bar of time in respect of special cases in special circumstances like those contemplated by S.417(3) and (4), read together, it will be special law, it is neither necessary nor expedient to attempt a definition. Thus the Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act, but there may be instances of a special law of limitation laid down in other status, though not dealing generally with the law of limitation……….” In paragraph 8 the Apex Court concluded thus: “…… In our opinion, therefore, the provisions of the Code supplemented by the provisions of S.29(2) of the Limitation Act, make it clear that section 5 of the Limitation Act would not apply to an application for special leave to appeal under Section 417(3) of the Code.” 7. After considering the different views expressed by various High Courts in India, the Apex court agreed with the conclusion of the High Court of Bombay that S.417 (4) Crl.P.C.(old) was a ‘special law’ within the meaning of S.29(2) of the Limitation Act. 8. After considering the different views expressed by various High Courts in India, the Apex court agreed with the conclusion of the High Court of Bombay that S.417 (4) Crl.P.C.(old) was a ‘special law’ within the meaning of S.29(2) of the Limitation Act. 8. Further the decision, Mangu Ram v. Municipal Corporation of Delhi [(1976) 1 S.C.C. 392] was relied on by the counsel for the respondents. The Apex court considered the principles laid down in Kaushalya rani’s case cited and discussed above and after distinguishing the same held that because of the application of Section 29, sub-section (2) of the Limitation Act, 1963, the ratio of the decision of Kaushalya Rani’s case above have no application in cases governed by Section 29(2)(b) of the Limitation Act. Further the Court also held that since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29, sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law, if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. The Apex Court, therefore, concluded that ‘in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it’. 9. The decision in Hukumdev Narain Yadav v. Lalit Narain Mishra [(1974) 2 S.C.C. 133] was also placed before me. That was a case under Representation of the People Act, 1951 where Section 81 of the limitation Act together with Section 5 of the Limitation Act came up for discussion. 9. The decision in Hukumdev Narain Yadav v. Lalit Narain Mishra [(1974) 2 S.C.C. 133] was also placed before me. That was a case under Representation of the People Act, 1951 where Section 81 of the limitation Act together with Section 5 of the Limitation Act came up for discussion. In paragraph 17, the Apex Court observed as follows: “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 a 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 of the nature of the subject matter and scheme of the special law exclude their operation.” 10. Gopal Sardar v. Karuna Sardar [(2004) 4 SCC 252] is a case related to West Bengal Land Reforms Act. Section 8 of the said Act together with Section 5 of the Limitation Act was considered. In paragraph 14, it was held as follows: “The decision in Mangu Ram V. Municipal Corpn. of Delhi is cited in support of the submission that in the absence of express exclusion of application of Section 5 of the Limitation Act in the special law, benefit of Section 5 of the Limitation Act could be availed. In that case, special leave petitions were filed in this Court against the condonation of delay to the application for the grant of special leave under Section 417 Cr.P.C., against acquittal of the petitioners by the trial court in spite of the mandatory period of limitation provided in sub-section (4) of Section 417. The question that arose in that case was whether the decision of this Court in Kaushalya Rani v. Gopal Singh in which it was held that Section 417 Cr.P.C. excluded application of Section 5 of the Limitation Act on a construction of Section 29(2)(b) of the old Limitation Act of 1908 could be applied under the corresponding provisions of the Limitation Act, 1963. The decision of that case turned upon the facts of that case in criminal appeals by comparison of the provision of the old Limitation Act to the provision of the new Limitation Act. The Division bench of the Calcutta High Court in Serish Maji case, referring to the observation made in Mangu Ram case said that “mere provision of a period of limitation in howsoever pre-emptory or imperative language is not sufficient to displace the applicability of Section 5”. In para 11 of the judgment, the Court 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 question”. 11. In State of Kerala v. Sreekumar [2001] (1) K.L.J. 791], a Division Bench of this High Court had accepted the Mangu Ram’s case cited (supra) and held that application under Section 5 of the Limitation Act would be available for condonation of delay in respect of Section 378 (4) and (5) of the Code of Criminal Procedure. 11. In State of Kerala v. Sreekumar [2001] (1) K.L.J. 791], a Division Bench of this High Court had accepted the Mangu Ram’s case cited (supra) and held that application under Section 5 of the Limitation Act would be available for condonation of delay in respect of Section 378 (4) and (5) of the Code of Criminal Procedure. Learned counsel for the petitioner gave much emphasis to this authority. Gopal Sardar case and Mukri Gopalan’s case, referred above, had been distinguished quoting the decision of the Calcutta High Court. It was held that, as Section 5 of the Limitation Act was not excluded from the provisions of the application of the Kerala Rent Control Act, the decision of the Mukri Gopalan’s case is separate and will have no bearing in the application of Section 378(4) and (5) of the Criminal Procedure Code. 12. In the case at hand, the counsel for the petitioner filed an affidavit setting in detail the reasons for the delay. His mother-in-law was hospitalized due to Kidney failure and his wife was hospitalized for serious illness. Though he had prepared the appeal and handed over the same to his Clerk he did not file the appeal. The Advocate also had no opportunity to closely follow up with the matter as he was not regular in his office. There had been many faults which had been caused by the Clerk for Advocate and finally he was sent out of the office. All these mishaps had caused the delay of 1026 days in filing the special leave petition under S.378(5) of the Code. As discussed earlier, though the Criminal Procedure Code is a complete procedure, yet there must be an express mention in the procedure which is necessary for exclusion of Section 5 of the Limitation Act. No such express exclusion could be seen under Section 378(5) of the Criminal Procedure Code. Hence, I am of the view that Section 5 of the Limitation Act, 1963 could be applied in condoning the delay caused in filing the Special Leave Petition. 13. In view of the above discussions on the principles of law as well as on facts, I hold that the delay caused in filing the special leave petition be condoned. This Criminal M.A. is allowed accordingly. Number the Special Leave Petition.