Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 972 (MP)

State of M. P. v. Radheshyam

2015-09-14

D.K.PALIWAL, P.K.JAISWAL

body2015
ORDER : D.K. Paliwal, J. The appellant Special Police Establishment, Indore had filed an application for confiscation of the property acquired by the respondents, which were prima facie found to be disproportionate to known sources of income of the respondents. Crime No. 80/2011 under section 13(1)(e) of the Prevention of Corruption Act has been registered against the respondents. An application for confiscation of the properties has been submitted, which has been dismissed vide order dated 18-12-2014. The order was communicated on 18-12-2014. The certified copy was obtained on 20-12-2014. Thereafter, the Special Prosecutor gave his opinion on 31-12-2014 to the SPE, Indore. It is submitted that thereafter entire copies of the case were collected and the case was sent to the Head Office of Special Police Establishment (Lokayukt), Bhopal. The Lokayukt Organization on 8-1-2015 has been forwarded the same to the General Administration Department from where the proposal was sent to the Law Department on 13-2-2015 and on 13-2-2015 the Law Department decided to prefer an appeal. Thereafter, this appeal was filed. It is submitted that during the aforesaid process delay of 44 days has occurred. The said delay is not intentional and is bona fide, hence prayed for condonation of delay in filing this appeal. 2. The prayer is opposed by the learned counsel appearing on behalf of the respondents submitting the Special Courts Act, 2011 provides the limitation for every stage of the case and is a special law, therefore, the provisions of section 5 of Limitation Act are not applicable to the appeal filed under section 17 of the Special Courts Act. It is further submitted that the reasons stated by the applicant are hot sufficient or proper to condone the delay. 3. We have heard submissions of the learned counsel for the parties. The appellant/State has preferred an appeal against the order, whereby the learned trial Court has dismissed the application for confiscation of the property vide order dated 18-12-2014. Aggrieved person can prefer an appeal under section 17(1) of M.P. Vishesh Nyayalaya Adhiniyam, 2011 within thirty days from the order has been passed. 4. Learned counsel appearing on behalf of the respondents submits that there is a provision for appeal against the judgment and sentence passed by the Special Court under section 9 of the M.P. Special Courts Act. The appeal can be preferred within a period of thirty days from the date of judgment. 4. Learned counsel appearing on behalf of the respondents submits that there is a provision for appeal against the judgment and sentence passed by the Special Court under section 9 of the M.P. Special Courts Act. The appeal can be preferred within a period of thirty days from the date of judgment. However, the proviso has been added to sub-section (3) of section 9 that High Court may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied for the reasons to be recorded in writing that the appellant had sufficient cause for not preferring an appeal within the period. It is submitted that such proviso does not find place under section 17 of the Special Courts Act. Had the Legislature intended to condone the delay, there was no reason not to add a proviso in section 17 of the Special Courts Act like the proviso added in section 9 of the M.P. Special Courts Act. 5. However, the learned counsel appearing on behalf of the appellant submits that in view of the provisions of section 29(2) of the Limitation Act, this Court can condone the delay. Section 29(2) of the Limitation Act provides as under:- "29 Savings.- (1) Nothing.......(9 of 1872). (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 of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law." 6. The Hon'ble Apex Court in the case of Manguram v. Delhi Municipality, AIR 1976 SC 105 , has observed as under :- "There is an important departure made by the Limitation Act, 1963 insofar as the provision contained in section 29, sub-section (2) is concerned. The Hon'ble Apex Court in the case of Manguram v. Delhi Municipality, AIR 1976 SC 105 , has observed as under :- "There is an important departure made by the Limitation Act, 1963 insofar as the provision contained in section 29, sub-section (2) is concerned. Whereas under the Indian Limitation Act, 1963 Section 29, subsection (2), Clause (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of the Indian Limitation Act, 1908, other than those contained in sections 4, 9 to 18 and 22 shall not apply and, therefore, the applicability of section 5 was in clear and specific terms excluded. Section 29, sub-section (2) of the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in sections 4 to 24, which would include section 5, shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. Section 29, sub-section (2), clause (b) of the Indian Limitation Act, 1908 specifically excluded the applicability of section 5, while section 29, sub-section (2) of the Limitation Act, 1963 in clear and unambiguous terms provides for the applicability of section 5 and the ratio of the decision in Kaushalya Rani's case can, therefore, have no application in cases governed by the Limitation Act, 1963, since that decision proceeded on the hypothesis that the applicability of section 5 was excluded by reason of section 29(2)(b) of the Indian Limitation Act, 1908. Since under the Limitation Act, 1963 section 5 is specifically made applicable by section 29, subsection (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. It is only if the special or local law expressly excludes the applicability of section 5, that it would stand displaced. Here, as pointed out by this Court in Kaushalya Rani's case AIR 1964 SC 260 : (1964 (1) Cri.L.J. 152) the time limit of sixty days laid down in sub-section (4) of section 417 is a special law of limitation and we do not find anything, in this special law which expressly excludes the applicability of section 5. It is true that the language of sub-section (4) of section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of section 5 in order that the application may be entertained despite such bar. Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of section 5." 7. The Full Bench of this Court in the matter of Mohd. Sagir v. Bharat Heavy Electricals and others, 2004 (2) M.P.L.J. 359 , has observed as under:- "If a different period of limitation is provided under the special law and there is no express exclusion the provisions of section of Limitation Act, 1963 sections 4 to 24 (both inclusive) would apply." 8. Thus, in our opinion, in view of the aforesaid legal position and in the light of the provisions of section 29(2) and section 3 of Limitation Act, this Court can consider the prayer for condonation of delay. The appellant has filed an affidavit in support of the application. No counter affidavit has been filed. 9. The Hon'ble Apex Court in a catena of cases has held that word "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. The appellant has filed an affidavit in support of the application. No counter affidavit has been filed. 9. The Hon'ble Apex Court in a catena of cases has held that word "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In the matter of Ram Nath Sao v. Gobardhan Sao, AIR 2002 SC 1201 , the Hon'ble Apex Court has held that by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high, causing enormous loss and irreparable injury to a party against whom the lis terminates and defeating valuable right of such a party to have the decision on merits. The Courts should strike balance between the resultant effect of the order it was going to pass upon the parties either way. 10. In this view of the matter, in our opinion, sufficient cause has been shown by the appellant and the delay seems to be bona fide, hence the delay deserves to be condoned. Consequently, the application is allowed and the delay is hereby condoned.