IMPORTANT POINT
The main legal point established in the judgment is that the language of Section 378(5) of the CrPC did not expressly exclude the applicability of Section 5 of the Limitation Act, and thus, the court decided to condone the delay in filing the special leave petitions.

JUDGMENT :

Bibhas Ranjan De, J.

1. Whether Section 5 of the Limitation Act, is applicable to an application with a prayer for special leave to appeal under Section 378 (5) of the Criminal Procedure Code (for short CrPC) is the question that needs to be decided in the aforesaid three applications for special leave to appeal. Initially, CRMSPL 27 of 2023 was heard by me at length and judgement was reserved. Subsequently, two other applications, namely, CRMSPL 52 of 2023 and CRMSPL 35 of 2023 came up for hearing before me in which identical question was involved.

2. Ld. advocate, appearing for the petitioner in the subsequent two applications argued the matter and I had to reserve subsequent two CRMSPL applications with a view to dispose of all three applications having identical question of law by a common judement. That is why, all three applications are being disposed of by this common judgement.

3. Accordingly, I proceed to decide the said question of law, referred to hereinabove first, before taking up for decision of each of the applications for special leave to appeal, on merits.

4. At the outset, I am dealing with an application for condonation of delay for 247 days (IA No. CRAN 1 of 2023) with CRMSPL 27 of 2023 in filing the special leave to appeal petition assailing the judgment and order of acquittal under Section 255(1) CrPC passed by Learned Metropolitan Magistrate, 4th Court, Calcutta in connection with Case no. C-638/2012 under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as NI Act).

5. Ld. Advocate, Mr. Dipta Dipak Banerjee, appearing on behalf of the petitioner submitted that against the judgment and order of acquittal passed by Ld. Magistrate, 4th Court, Calcutta one appeal has been preferred before the Court of Ld. Chief Judge, City Sessions Court, Calcutta which, in turn was transferred to Additional Sessions Judge, Fast Track Court-II for disposal. In the mean time, a Co-ordinate Bench of this Court held inter alia that an appeal against acquittal in a case under Section138 of the NI Act would lie to the High Court not before the City Sessions Court. Therefore, according to Mr. Banerjee, the time taken in a proceeding before wrong forum is liable to be excluded from the period of limitation prescribed therefor. In support of his contention he relied on a case of Mangu Ram Vs Municipal Corporation of Delhi reported in AIR 1976 SCC 105 as well as Kaushalya Rani Vs. Gopal Singh reported in AIR 1964 Supreme Court 260.

6. Per contra, Ld. Advocate, Mr. Anirban Tarafdar, appearing on behalf of the respondent no. 1, raised the issue of applicability of Section 5 of the Limitation Act as well as grounds for condonation of delay in terms of Section 378 of the CrPC.

7. Mr. Tarafdar has submitted that under the Provision of Section 378 (5) of the CrPC delay in filing special leave petition cannot be condoned by the High Court. According to him, applicability of Section 5 has been excluded by codifying the Provision of Section 378(5) of the CrPC by the legislature.

8. In support of his contention, Mr. Tarafdar relied on a case of Hukumdev Narain Yadav Vs. Lalit Narain Mishra reported in AIR 1974 Supreme Court 480 and Gopal Sardar Vs. Karuna Sardar reported in AIR 2004 Supreme Court 3068.

9. On the issue of explanation of delay, Mr. Tarafdar has submitted that the time wasted before any wrong forum cannot be condoned from the period of limitation on the principle of “ ignorance of law is no excuse”. In support of his contention Mr. Tarafdar relied on a case of The Swadeshi Cotton Mills Co. Ltd. Vs. The Government of U.P. and Ors. Reported in 1975(4) SCC 378 as well as observation of a Co-ordinate Bench of this Court in connection with C.O No. 2203 of 2019.

10. Mr. Tarafdar further distinguished the principle laid down in the case of Mangu Ram (supra) by submitting that in Mangu Ram principle laid down in Hukumdev (supra) by larger bench has not been referred to.

11. In CRMSPL 52 of 2023, petit