* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ Criminal Appeal Nos.683 and 684 of 2014
%15.09.2014
Crl.A.No.683 of 2014
Between:
K. Somasekhar Reddy and others. ....
Appellants AND The State, Rep. by Spl.P.P, High Court at Hyderabad. …. Respondent ^ Counsel for Appellant : Sri Vedula Srinivas ! Counsel for Respondent : Sri Ghani A Musa Spl. Public Prosecutor for ACB
Crl.A.No.684 of 2014
Between:
K. Somasekhar Reddy and others. ....
Appellants AND The State, Rep. by Spl.P.P, High Court at Hyderabad. …. Respondent ^ Counsel for Appellant : Sri Vedula Srinivas ! Counsel for Respondent : Sri Ghani A Musa Spl. Public Prosecutor for ACB < Gist:
> Head Note:
? Cases referred:
1) 2014 Crl.L.J 1444 (SC) = 2014 (2) ALT Crl. 2003 (AP)
2) AIR 1969 SC 872
3) (1995) 5 SCC 5
4) AIR 1953 Bombay 35
5) 2014 (9) SCALE 273 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO CRIMINAL APPEAL Nos.683 and 684 of 2014
COMMON JUDGMENT:
Aggrieved by the common order dated 06.06.2014 in Crl.M.P.Nos.123 of 2014 and 124 of 2014 in Crime No.9/RCA-TCD/ 2011 passed by the learned Judge, Special Court for trial of ACB cases in Rayalaseema Region at Kurnool, the respondents preferred the instant Criminal Appeals.
2) The factual matrix of the case is thus:
a) Appellant No.2 is the wife and appellant Nos.3 and 4 are the children of the appellant No.1. In Cr.No.9/RCA- TCD/2011, appellant No.1 is charged for the offences under Section 13(2) r/w 13 (e) of Prevention of Corruption Act, 1988 (for short “P.C. Act, 1988”) for acquiring assets disproportionate to his known sources of income. Whileso, the Investigating Officer (I.O) filed Crl.M.P.No.173 of 2013 (Crl.M.P.No.12 of 2012) under the provisions of Section 3 of Criminal Law (Amendment) Ordinance, 1944 (for short “Ordinance 1944”) seeking interim attachment of the properties belonging to all the appellants shown in the Annexures to the petition. The trial Court in its order dated 11.01.2012 issued ad interim attachment and ordered notice to the appellants under Section 4 of Ordinance 1944. The appellants, it appears, filed their objections against the said attachment.
b) Whileso, as per Section 10 of Ordinance 1944 the order of attachment of properties made under Section 4(1) of the said Ordinance shall continue in force for a period of one year from the date of aforesaid order unless cognizance of the offence is taken in the meanwhile or unless the Court on application by the agent of the State Government passes an extension order. Admittedly, neither was done in this case within one year. However, subsequently the I.O filed two petitions i.e, Crl.M.P.No.123 of 2014 under Section 5 of Limitation Act to condone the delay of 464 days in filing the extension petition and Crl.M.P.No.124 of 2014 under Section 10 (a) of Ordinance, 1944 seeking extension of interim attachment. The appellants filed their counter in those applications. The trial court by a common order dated 06.06.2014 allowed those two petitions and condoned the delay of 464 days and extended the interim attachment for one more year from the date of its common order.
Hence, the two Criminal Appeals i.e. Crl.A.No.683 of 2014 against the order in Crl.M.P.No.124 of 2014 and Crl.A.No.684 of 2014 against the order in Crl.M.P.No.123 of 2014.
3 ) Heard arguments of Sri Vedula Srinivas, learned counsel for appellants and Sri Ghani A Musa, learned Special Public Prosecutor for ACB in both the appeals.
4) The main contention of learned counsel for appellants is that Limitation Act particularly Section 5 of the said Act will have no application to the proceedings before the Criminal Courts. Further, the Limitation Act and Section 5 of the said Act will have no application to the proceedings under the Criminal Law (Amendment) Ordinance, 1944 since the said Ordinance is a special law and it has not conferred power on Court to condone the delay in filing extension petition either under the provisions of the said Ordinance or under Section 5 of Limitation Act. It was argued that inspite of raising those crucial objections before the trial Court, it did not consider them but allowed the two petitions in its impugned order by relying upon the decision of the Apex Court reported in State
[1]
of Tamil Nadu vs. N.Suresh Rajan which has no relevance to the context. He thus prayed to allow the two appeals and set aside the common order.
5 ) Per contra, learned Spl.P.P while supporting the impugned order argued that provisions of Limitation Act particularly Section 5, are very much applicable to the petition filed by the I.O and the trial Court rightly passed the common order and the two criminal appeals are not maintainable either on facts or on law.
6 ) In the light of above arguments, the points for determination in these appeals are:
1) Whether the provisions of Limitation Act are applicable to the proceedings before a Criminal Court?
2) Whether the provisions of Limitation Act, particularly Section 5, are applicable to the Criminal Law (Amendment) Ordinance, 1944 which is a special law?
3) Whether the common order dated 06.06.2014 passed by the trial Court is factually and legally sustainable?
7) POINT No.1: The first argument is that the provisions of Limitation Act have no application to the proceedings before a Criminal Court. I am afraid this argument is not correct. It is one thing to say that the Limitation Act has only limited application to the proceedings before a Criminal Court and another thing to say that the Limitation Act has altogether no application. When the preamble and scheme of the Act are read together, they depict that the Act intends to consolidate and amend the law for laying suits and other proceedings and the provisions of the Act are legislated to sub-serve this object. The prime-ordeal object of the Limitation Act is to serve a caveat that law will help those who recognise their rights and seek redressal in a court of law within a specified time but not those who slumber over their rights and knock the doors of justice at their will. Inordinate delay either wantonly or unwittingly in institution of proceedings, create adverse situations like non-availability of evidence both oral and documentary, efface of memory of oral witnesses, physical changes of the subject property due to natural vagaries etc. Hence, time limitation has been prescribed for laying suits and other proceedings before a court of law through the Limitation Act.
a) Then the scheme of the Act would show that the Act contains 32 Sections and one Schedule. The Schedule contains 137 Articles prescribing different periods of limitation to different proceedings. The sections will help to know the method of computation of period of limitation for different proceedings as prescribed in the Schedule. The words “suits, proceedings and other purposes connected therewith” appearing in the preamble of the Limitation Act though predominantly refer to civil matters in civil courts, but not excluded the operation of the Act altogether to the proceedings before Criminal Courts. The provisions of the Act would rather show their application in a limited sphere to the criminal proceedings before Criminal Courts. Certain express provisions laid down in the Limitation Act would avouch the same. For instance, Article 114 of Limitation Act prescribes the period of limitation for carrying out an appeal against an order of acquittal, whereas Article 115 lays down the period for filing an appeal against conviction under Cr.P.C. Article 131 prescribes period of limitation for filing revision both under C.P.C. and Cr.P.C. Article 132 prescribes limitation for High Court to grant certificate of fitness to appeal to Supreme Court. Article 133 applies to application to the Supreme Court for Special Leave to Appeal. Thus, the above provisions narrate the applicability of Limitation Act though in a narrow compass to the proceedings in a Criminal Court. This has been reiterated by Apex Court in K.Venkeswara Rao and another v. Bekkam
[2]
Narasimha Reddi and others thus:
“xx xx xx… The Indian Limitation Act of 1968 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a Court of law unless the application thereof has been excluded by any enactment; the extent of such application is governed by Section 29(2) of the Limitation Act.”
So, there can be no demur regarding the application of Limitation Act to the proceedings in Criminal Court. This point is answered accordingly.
8 ) POINT No.2: The impugned attachment order was passed by the trial Court under the provisions of Criminal Law Amendment Ordinance, 1944. It is a special law itself. This Ordinance XXXVIII of 1944 was promulgated by the Governor General of India in exercise of powers conferred by Sec.72 of Government of India Act, 1935 as set out in the 9th Schedule of the said Act with an avowed object of preventing the disposal or concealment of property procured by means of certain offences listed in the schedule.
a) This Ordinance was couched in 15 Sections and one Schedule. Section 1 relates to extent, operation and commencement of the Ordinance. Section 2 is an interpretative section. It narrates apart from the other terms, the schedule offence “which means an offence specified in the schedule appended to the ordinance”. In the schedule two types of offences are specified for the purpose of this Ordinance. First type are the offences under Sections 406, 408, 409, 411, 414, 417 and 420 of IPC and second type are the offences punishable under P.C Act, 1988. Any conspiracy to commit or any attempt to commit or any abetment of above two types of offences is also included in the schedule. Section 3 deals with the power of State/Central Government to authorise its Agent to move an application before the concerned District Judge for attachment of money/property procured by a person by means of committing schedule offence. Section 4 deals with the power of District Judge to pass the ad-interim attachment order and to issue notice to the person whose money or property is being attached. Then Section 5 lays down the power of the District Judge in making an-interim order of attachment either absolute or varying with or withdrawing the same after investigating into the objections raised against attachment. Section 6 deals with the power of the District Judge to order attachment of money/property in the hands of transferee from the person who committed schedule offence. Section 8 facilitates offering security by the person whose properties were attached in lieu of attachment. Section 9 lays down the procedure for administration of attached property which includes the power of District Judge to appoint a Receiver to manage the attached property. Section 9A deals with the effect on attachment order passed by a District Judge prior to 15.08.1947 and his seizure of territorial jurisdiction subsequently. Then Section 10 deals with duration of attachment ordered by a District Judge. Section 11 lays down about the provision of appeals against the order of District Judge. Section 12 deals with the duty of the Criminal Court to evaluate the property procured by committing schedule offences. Section 13 deals with the method of disposal of attached property upon termination of criminal proceedings. Section 14 relates to barring of other proceedings. Section 15 deals with protection of action done in good faith.
b) So, when the scheme of the Ordinance is intensely tested, it will not leave slightest room for doubt that the Ordinance, 1944 is a special law inasmuch as it was legislated to cover specific properties procured by a person by committing specific offences listed in the schedule of the Ordinance.
9) Be that it may, Section 10 of the Ordinance which describes the duration of attachment ordered by the District Judge and which is important for our discussion, reads thus:
“10. Duration of attachment:— An order of attachment of property under this Ordinance shall, unless it is withdrawn earlier in accordance with the provisions of this ordinance, continue in force:
(a) Where no Court has taken cognizance of the alleged scheduled offence at the time when the order is applied for, for one year from the date of the order under sub-section (1) of Section 4 of sub-section(2) of Section 6 as the case may be, unless cognizance of such offence is in the meantime so taken or unless the District Judge on application by the agent of the State Government or as the case may be, the Central Government thinks it proper and just that the period should be extended and passes an order accordingly; or
(b) Where a Court has taken cognizance of the alleged scheduled offence whether before or after the time when the order was applied for until orders are passed by the District Judge in accordance with the provisions of this Ordinance after the termination of the criminal proceedings.”
Thus, Section 10 lays down that the order of attachment shall remain in force for a period of one year only unless in the meanwhile, the Court has either taken cognizance of the alleged schedule offence or upon the application of Agent of the concerned Government, passed an order of extension of attachment. In the instant case, admittedly, neither cognizance was taken nor a petition for extension of attachment was filed within one year but such petition was filed belatedly along with delay condoning petition under Section 5 of Limitation Act. Hence, the point is whether the provisions of Limitation Act, particularly Section 5, have application to special law like Ordinance, 1944. To answer this query it is imperative to study Section 29 of Limitation Act which reads thus:
“Section 29 – Savings:
(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (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 prescribed by the Schedule and for the purpose of determining any 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 in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend.”
a) I n Mukri Gopalan vs. Cheppilat Puthanpuravil
[3]
Aboobacker th e Apex Court succinctly narrated the requirements for operation of Section 29 as follows:
"Para 8: xx xx xx… A mere look at the aforesaid provision shows for its applicability to the facts of a given case and for importing the machinery of the provisions containing Sections 4 to 24 of the Limitation Act the following two requirements have to be satisfied by the authority invoking the said provision:
(i) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application.
(ii) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the schedule to the Limitation Act.
Para 9: If the aforesaid two requirements are satisfied the consequences contemplated by Section 29(2) would automatically follow. These consequences are as under:
(i) In such a case Section 3 of the Limitation Act would apply as if the period prescribed by the special or local law was the period prescribed by the schedule.
(ii) For determining any period of limitation prescribed by such special or local law for a suit, appeal or application all the provisions containing Sections 4 to 24 (inclusive) would apply insofar as and to the extent to which they are not expressly excluded by such special or local law."
10) So, when the case on hand is tested on the anvil of requirements prescribed for application of Section 29, it can be said that those requirements are satisfied inasmuch as Ordinance, 1944 which is a special law prescribed the duration of the attachment i.e. one year within which a petition for extension need to be filed and this prescription of duration by the special law is different from the period prescribed by the schedule to the Limitation Act, since the schedule has not prescribed any period of limitation on the matter in issue.
a) Here, from the language in Section 29 viz. “a period of limitation different from the period prescribed by schedule”, one may argue, it is only when schedule to the general law of limitation prescribed certain period of limitation and special law prescribed a different period of limitation then only Section 29 may come into operation but not in a situation where Limitation Act omits to prescribe any period of limitation and only special law provides certain period of limitation. By this interpretation, the provisions of Limitation Act stay outside the sphere of special law though such a special law did not exclude the operation of Limitation Act either expressly or by necessary implication. For example, a special law legislated after Limitation Act came into force, prescribes a particular period of limitation for institution of proceedings under that Act before a Court. Naturally, the Limitation Act will not contain any period of limitation for such proceedings since the special law was enacted subsequent to the Limitation Act. In such a case, if the above interpretation is applied, Sections 4 to 24 of Limitation Act which help compute period of limitation will not apply to such special law even though special law has not expressly barred operation of Limitation Act, resulting in chaotic situation. Needless to emphasise that interpretation shall advance the intention and object of the legislators. Hence, in my view, plain and un-pliant meaning of the word ‘different’ is that, it applies to the situation not only when two different sets of limitations are prescribed by Limitation Act and special law but also when Limitation Act prescribes no period of limitation and only special law prescribes. My view gets support from the observation of Bombay High Court in its decision in Canara Bank vs. Warden Insurance Company
[4]
Limited wherein it was held thus:
“xx xx If the first schedule to the Limitation Act omits laying down any period of limitation for a particular appeal and the special law provides a period of limitation, then to that extent the special law is different from the Limitation Act.”
Hence, in the instant case, it can be said that requirements mentioned in Mukri Gopalan’s case (3 supra) for application of Section 29 are satisfied. It must also be mentioned here that in Ordinance, 1944 the operation of Sections 4 to 24 of Limitation Act is not excluded either expressly or implied. Consequently the Limitation Act applies to Ordinance, 1944.
b) In a similar situation, the Honourable Apex Court in its
[5]
recent judgment in State of M.P. v. Anshuman Shukla observed thus:
“Section 19 of the Act of 1983 (‘special law’ Emphasis supplied) prescribes a period of limitation of three months. This limitation period finds no mention in the schedule to the Limitation Act. Further, Section 19 does not expressly exclude the application of Sections 4 to 24 of the Limitation Act, 1963.”
With the above observation, the Apex Court held that Section 5 of Limitation Act is applicable to aforesaid special law.
Therefore, in my considered view, the provisions of Limitation Act particularly Sections 4 to 24 including Section 5 will be applicable to the special law i.e. Ordinance, 1944. This point is answered accordingly.
11) POINT NO.3: In view of the findings under above points, it can be said that the trial Court was right in applying Section
5 of Limitation Act to the delay condoning petition in Crl.M.P.No.123 of 2014 though the cited decision in Suresh Rajan’s case (1 supra) relied upon by the trial Court has no application.
a) Then on factual side, the trial Court considering the facts that his Court was newly established a year back and it took about six months to secure case bundles and properties and commence the trial and that the Spl.P.P. was appointed newly, has rightly condoned the delay of 464 days in filing attachment extension petition. To that extent the trial Court’s order was right. Consequently, Crl.A.No.684 of 2014 filed against Crl.M.P.No.123 of 2014 is liable to be dismissed.
b) Then coming to Crl.A.No.683 of 2014 which is filed against the orders in Crl.M.P.No.124 of 2014, I find force in the argument of the appellants that the trial Court having condoned the delay has straightaway extended attachment for one more year without considering the counter— objections filed by the appellants. It must be said in the common order the trial Court has not discussed about the validity or otherwise of the counter—objections raised by the appellants for extension of attachment. Since there is no reasoned order in this regard, the order of trial court is liable to be set aside with a direction to hear arguments of both sides on the issue of extension of interim attachment order and pass an order on merits afresh.
13) In the result, both the Criminal appeals are disposed of and ordered as follows:
(i) Crl.A.No.684 of 2014 is dismissed.
(ii) Crl.A.No.683 of 2014 is allowed and common order dated 06.06.2014 of the trial Court insofar as Crl.M.P.No.124 of 2014 is set aside with a direction to the trial Court to hear arguments of both sides on the issue of extension of interim attachment order and pass an order on merits afresh. In the meanwhile, the interim attachment extension order passed by the trial Court shall be in force and merge with the order to be passed by the trial Court.
As a sequel, miscellaneous applications pending, if any shall stand closed.
U. DURGA PRASAD RAO, J Date: 15.09.2014
Note: L.R Copy to be marked: Yes/ No
Scs/Murthy
[1] 2014 Crl.L.J 1444 (SC) = 2014 (2) ALT Crl. 2003 (AP)
[2] AIR 1969 SC 872
[3] (1995) 5 SCC 5
[4] AIR 1953 Bombay 35
[5] 2014 (9) SCALE 273