9911796707
TMI Blog1963 (9) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent was committed to the Court of Sessions to stand his trial under s. 493, or in the alternative under S. 495, of the Indian Penal Code, on the charge that he had, by deceit, caused the appellant who was not lawfully married to him to believe that she was so married and in that belief had sexual intercourse with her. In the alternative, it was alleged that he married the appellant after concealing the fact that he was already married. The prosecution was launched by a petition of complaint filed by the appellant before the Magistrate. The respondent was tried by the Additional Sessions judge, Gurdaspur, who by his judgment dated December 31, 1959, acquitted him on the ground that the prosecution had failed to prove that there was a marriage between the ,complainant and the accused. The appellant filed an ap- application on April 22, 1960, very much later than 60 days from the date of the order of acquittal, for special leave to appeal from that order, under s. 417(3) of the Code. In a note appended to the application it was stated that the time in filing the present petition might be excluded in view of the fact that the District Magistrate, Gurdaspur, moved the Advocate-Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act could not be available to the appellant for condonation of the delay in filing the application for special leave under sub-s. (3) of s. 417 of the Code. Before we refer to the different decisions of the High Courts, taking conflicting views on the only question now before us, we would examine the relevant provisions of the Code and the Limitation Act. Section 417 of the Code is in these terms : - 417(1) Subject to the provisions of subsection (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. (2)If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (XXXV of 1946), the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal. (3)If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed to the State Government to appeal from an order of acquittal should be curtailed by half, thus evincing its clear intention to cut short the duration of the litigation which had already resulted in an order of acquittal; and (2) that in certain cases the High Court should have the power of granting special leave to a complainant, as distinguished from the State Government, to come up in appeal from an order of acquittal, but at the same time indicating in clear and unambiguous terms that such an application must be made within 60 days from the date of the order of acquittal. This rule of 60 days bar of time has been specifically provided for in the section itself, unlike the general rule of limitation applicable to an appeal against acquittal, at the instance of the State Government. In our opinion, therefore, the position is clear that so far as appeal by the State Government is concerned, the law of limitation is the general law laid down in the Limitation Act (Art. 157) to which s. 5 would apply by its own force. But in so far as an appeal by a private prosecutor is concerned, the legislature was astute to specifically lay down that the foundation for such an appeal shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 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 statutes, though not dealing generally with the law of limitation. For example, rules framed under Defence of India Act, vide S. M. Thakur v. The State of Bihar I.L.R. 30 Pat. 126; Canara Bank Ltd. v. The Warden Insurance Co. I.I.R. [1952] Bom. 1083 dealing with the special rule of limitation laid down in the Bombay Land Requisition Act (Bom. XXXIII of 1948). These arc mere instances of special laws within the meaning of s. 29(2) of the Limitation Act. Once it is held that the special rule of limitation laid down in sub-s. (4) of s. 417 of the Code is a special law of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the conclusion that s. 5 of the Limitation Act is wholly out of the way, in view of s. 29(2) (b) of the Limitation Act. But the question is whether it can be said that even though the provisions of s. 417(4) are a special law , they prescribe a different period of limitation from that prescribed by the First Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of acquittal, and that the High Court had no power to extend the period of limitation, and 5. 5 of the Limitation Act did not apply to such cases. They based their conclusion entirely on the wording of sub. ss. (3) and (4) of s. 417 of the Code. That Bench decision of the Allahabad High Court was overruled by a Full Bench of that Court in Rajjan Lel v. State I.L.R. [1960] 2 All. 761. The three Hon ble judges constituting the full bench, in separate but concurring judgments, took the view that the Code was not a local or a special law and that s. 5 of the Limitation Act was applicable to an application under s. 417(3) of the Code. In the Andhra Pradesh High Court a Division Bench was of the same opinion as had been held by the Full Bench of the Allahabad High Court, but the decision was obiter because the Court dismissed the petition on the ground that the order of acquittal had been passed before the Amending Act XXVI of 1955 came into force, so that the order of acquittal was not amenable to an appeal at the instance of the private prosecutor. A Single Judge of the Andhra Pradesh High Court took the view that s. 5 was applicable to applications for special leave under s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
