Whether the delay occurred in preferring an appeal against the acquittal can be condoned under Section 5 of the Limitation Act, 1963?

The Bench of the Supreme Court comprising Justices Sudhanshu Dhulia and P.B. Varale Supreme Court recently held in case titled as Mohd Abaad Ali & Anr. Versus Directorate of Revenue Prosecution Intelligence | Crl.A. No. 001056 / 2024 that if there is a delay in filing an appeal against the acquittal of the accused then the delay can be condoned under Section 5 of the Limitation Act, 1963.

The court also observed that although the limitation period in preferring an appeal is mentioned under Section 378 of Cr.P.C., the said provision doesn't contain any exclusionary provision to exclude the application of the Limitation Act.

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Brief facts of the case:

The accused was acquitted by the Trial Court for the offence under the Customs Act of 1962. The Directorate of Revenue Intelligence (“DRI”) filed an appeal under Section 378 of Cr.P.C. before the High Court against the acquittal and filed an application of condonation of delay since the appeal was belated by 72 days. The Delhi High Court allowed the application. The accused then filed a recall application before the High Court seeking recall of its order allowing the delay condonation application of the DRI. The recall application was dismissed. Against this dismissal of the recall application, the accused preferred a criminal appeal before the Supreme Court.

The appellant-accused contended that the High Court had no power to allow the delay condonation application as the delay occurred in filing the appeal against the acquittal cannot be condoned under the Limitation Act. It was further contended that Section 378 of Cr.P.C. was a self-contained code within itself prescribing the limitation period in filing an appeal against the acquittal, therefore, the special law such as the Limitation Act would have no application while preferring an appeal against the acquittal under Section 378 of Cr.P.C.

The appellant-accused relied on the Supreme Court Judgment of Kaushalya Rani v. Gopal Singh to support  his contention.

On the contrary, the Respondent-DRI argued that the delay occurred in preferring an appeal against the acquittal can be condoned by the court under the Limitation Act as Section 378 of Cr.P.C. doesn't exclude the applicability of Section 5 of the Limitation Act.

Observation of the Supreme Court

The Supreme Court held that the Kaushalya Rani case dealt with the old Cr.P.C. and old Limitation Act, 1908, and as such cannot be applied in present case.

The Supreme  Court based its decision on the ratio laid down in the case of Mangu Ram v. Municipal Corporation of Delhi AIR 1976 SUPREME COURT 105,

 It was held in above case that 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. Since under the Limitation Act, 1963 S. 5 is specifically made applicable by S. 29(2) it could 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 S. 5 that it stands displaced.

Section 29(2) (b) of the Limitation Act, 1908 specifically excluded the applicability of S. 5 while S. 29(2) of the 1963 Act in a clear and unambiguous terms provides for applicability of S. 5

The court observed as “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.”