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PETITIONER: KAUSHALYA RANI

       Vs.

RESPONDENT: GOPAL SINGH

DATE OF JUDGMENT: 19/09/1963

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C. AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR  260            1964 SCR  (1) 982  CITATOR INFO :  R          1964 SC1099  (5,23)  R          1970 SC1093  (7)  D          1974 SC 480  (15)  D          1976 SC 105  (5,6,7)  R          1979 SC 984  (12)

ACT: Code of Criminal Procedure, s. 417(3), (4)-Accused acquitted by  Additional Sessions judge-Application for special  leave to  appeal  to High Court against acquittal filed  after  60 days  of order-Provisions of Limitation Act, s.  5,  whether applicable-Special law-Limitation Act (9 of 1908) s. 29(2).

HEADNOTE: The  respondent  was committed to the Court of  Sessions  to stand   his  trial.   However,  he  was  acquitted  by   the Additional  Sessions  Judge  on  December  31,  1959.    The appellant  filed on April 22, 1960, an application under  s. 417(3)  of the Code of Criminal Procedure in the High  Court for Special Leave to appeal from the order of the Additional Sessions Judge.  The High Court dismissed the appeal on  the ground that the application for special leave to appeal  was barred  by  time.   It was held that the  provisions  of  s. 417(4) of the Code of Criminal Procedure were in the  nature of  a  special  law  and  the provisions  of  s.  5  of  the Limitation  Act were not applicable.  The appellant came  to this Court after getting a certificate of fitness to  appeal to this Court.  Dismissing the appeal, HELD  : (i) The special rule of limitation laid down  in  s. 417(4) of the Code of Criminal Procedure is a special law of limitation Governing appeals by private prosecutors and s. 5 of the Limitation Act does not apply in view of s.  29(2)(b) of.  the Limitation Act.  A special law means a law  enacted for  special  cases, in special  circumstances,  in  contra- distinction  to  the  general  rule  of  law  laid  down  as applicable  generally  to all cases with which  general  law deals.   In that sense, the Code of Criminal Procedure is  a general  law  regulating  the procedure  for  the  trial  of criminal cases Generally.  When it lays down the bar of time in respect of special cases, in special circumstances,  like those contemplated by s. 417(3) and (4), it is a special law

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contained  within the general law. likewise, the  Limitation Act is a general law laying down 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. S.M Thakur v. The State of Bihar, 30 Pat. 126; Canara Bank Ltd.  v. The Warden Insurance Co., I.L.R. [1952] Bom.  1083; Mohammad Ibrahim v. Gopi Lal, A.I.R. (1958) All. 691; Rajjan Lal v. State I.L.R. [1960] 2 All. 761; Viswanathan Chettiar, in re. (1957) 1 M.L.). 150; Coimbatore Municipality v. K. L. Narayanan  A.I.R. (1958) Mad. 416; P. F. Subbareddi,  V.  D. Papireddi, 983 A.I.R.  (1957)  Andh.  Pra. 406; In re  Parchuri  Adeshamma, A.I.R.  (1958)  Andh.  Pra. 230; Anjanabai’  v.  Yeshwantrao Daulatrao Dudhe, I.L.R. [1961] Bom. 135, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION Criminal Appeal No. 126  of 1962. Appeal from the judgment and order dated October 31, 1961 of the Punjab High Court in Criminal Appeal No. 825 of 1960. Vidya Dhar Mahajan, for the appellant. The Judgment of the Court was delivered by SINHA,  C.  J.-In this appeal, on a certificate  of  fitness granted  by  the Punjab High Court, the  only  question  for determination  is  whether  the provisions of S.  5  of  the Limitation  Act  (9  of 1908) apply to  an  application  for special  leave to appeal, from an order of acquittal,  under sub-s.  of S. 417 of the Code of Criminal Procedure  (to  be hereinafter  referred to as the Code).  The certificate  was granted  by the High Court "because there is a  considerable conflict of opinion in the various High Courts". In this case we are not concerned with the factual aspect of the controversy between the parties.  It is not,  therefore, necessary  to  set  out  in any detail  the  facts  of  that controversy.  It is enough to state that the respondent  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- 984 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-General in filing the appeal  under  s. 417,  Criminal  Procedure Code, which if  filed  would  have obviated  the necessity of filing this petition.  But.,  the

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State Government declined to file appeal and the  intimation to this effect was received on April 1, 1960.  The  original letter  is attached herewith; from this date, it  is  within time."  On  this application, a Division Bench of  the  High Court  passed  the order "Admitted", on September  1,  1960. When  the appeal was placed for hearing before  Falshaw  and Grover, JJ, a preliminary objection was raised on behalf  of the  respondent that the appeal was out of time.   While  it was admitted on behalf of the appellant that the appeal  was filed long after the period prescribed by sub. s. (4) of  s. 417  of  the  Code, it was argued that the  delay  could  be condoned  under  s. 5 of the Limitation Act,  and  that  the delay had been so condoned by the Bench when the appeal  was admitted. The  Bench  pointed  out  that  as  a  matter  of  fact   no application had been made by the appellant for extension  of the period of limitation for filing the petition for special leave.   The Bench further held that it could not accede  to the contention that the Bench while admitting the appeal had condoned the delay.  The Court, on an elaborate  examination of  the provisions of the Code, and of the  Limitation  Act, came  -to the conclusion that the bar of time prescribed  by sub-s. (4) of s. 417 was a ’special law’ within the  meaning of s. 29(2) of the Limitation Act, and that, therefore, s. 5 of  the  Limitation  Act  would  not  be  available  to  the appellant  for  condoning the admitted delay in  filing  the application  for  special leave.  The High Court  noticed  a number  of  decisions  of  the  different  High  Courts  and preferred to accept the view that the provisions of sub.  s. (4)  of s. 417 of the Code were in the nature of a  ’special law’ though the Code as a whole was a general law.  In  that view  of the matter, the High Court dismissed the appeal  on the ground that the application for 985 special  leave to appeal was barred by time.  The  appellant applied  to  the  High  Court  and  obtained  the  necessary certificate  of  fitness and has come up to  this  Court  on appeal  from that order of the High Court.  The  High  Court ,naturally did not go into the merits of the controversy. We have,  therefore,  to consider whether the High  Court.  was right  in  coming  to  the  conclusion  that  s.  5  of  the Limitation  Act could not be available to the appellant  for condonation of the delay in filing the application for  spe- cial 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  sub-               section (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 special leave to appeal from the order of  acquittal,

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the  complainant  may  present such an appeal  to  the  High Court. (4)No  application under sub-section (3) for the grant  of special leave to appeal from the order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. (5)  If, in any Case, the application under sub-section (3)  for the grant of special leave to appeal from an  order of,  acquittal  is  refused, no appeal from  that  order  of acquittal  shall  lit  under sub-section (1)." 63-2  S.  C.  India/64 986 It  will  appear that the section, which was recast  by  Act XXVI  of  1955,  for the first time made  provision  for  an appeal by a private complainant from an order of  acquittal, if he obtained special leave to appeal from the High  Court. Previous  to  the Amending Act aforesaid, it  was  only  the State Government which could come up in appeal from an order of acquittal.  The section, thus, provides for an appeal  by the  State Government, as also by the complainant in a  cast instituted upon a complaint, provided that special leave  of the  Court  is  obtained.  So far as  appeal  by  the  State Government is concerned, s. 417 itself does not provide  for any period of limitation.  The period of limitation for such an  appeal is laid down in Art. 157 of the  Limitation  Act. Previous to the amendment of 1955, the period of  limitation for  such an appeal by the State Government was six  months, which  was reduced to three months by the Act XXVI  of  1955 with  effect  from  January 1, 1956.  Hence, so  far  as  an appeal  by the State Government is concerned, the period  of limitation  thus  reduced is a part of the  general  law  of limitation  and is amenable to the operation of s. 5 of  the Limitation Act.  But the provisions of sub-s. (3) and (4) of s. 417 arc in the nature of ’special provisions’  introduced for  the first time by the Amending Act XXVI of 1955.   Sub- section  (4),  in  terms, is  very  precise  and  mandatory, prohibiting the High Court from entertaining any application for special leave to appeal from an order of acquittal after the expiry of 60 days from the date of such an order.  On  a perusal  of  the  bare provisions of  the  section  and  the history  of  the law on the subject, two things  are  clear; namely, (1) that the legislature thought it expedient in the interest of justice and public policy that the period of six months  allowed  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 60 987 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

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foundation for such an appeal should be laid within 60  days from  the  date of the order of acquittal.  In  that  sense, this rule of 60 days bar is a special law, that is to say, a rule  of limitation which is specially provided for  in  the Code itself, which does not ordinarily provide for a  period of  limitation  for  appeals or  applications.   It  is  the general  law of limitation, as laid down in  the  Limitation Act,  which governs appeals ordinarily preferable under  the Code, vide Arts. 150, 154, 155 and 157.  To such appeals the provisions of s.    5 would apply. It  has  been observed in some of the cases decided  by  the High  Courts that the Code is not a special or a  local  law within  the meaning of s. 29(2) of the Limitation Act,  that is  to say, so far as the entire Code is concerned,  because it is a general law laying down procedure, gene- rally,  for the trial of criminal cases.  But  the  specific question  with  which we are here concerned is  whether  the provision  contained in s. 417(4) of the Code is  a  special law.  The whole Code is indeed a general law regulating  the procedure  in criminal trials generally, but it may  contain provisions specifying a bar of time for particular class  of cases which are of a special character.  For example, a Land Revenue   Code   may  be  a  general  law   regulating   the relationship  between  the revenue-payer  and  the  revenue- receiver  or the rent-payer and the rent-receiver.  It is  a general law in the sense that it lays down the general  rule governing  such  relationship, but it  may  contain  special provisions  relating  to bar of time,  in  specified  cases, different  from the general law of limitation.  Such  a  law will be a ’special law’ with reference to the law  generally governing the subject-matter of that kind of re- 64-2 S C  India/64 988 lationship.  A ’special law’, therefore, means a law enacted for  special cases, in special circumstances, in  contradis- tinction  to the general rules of the law laid down, as  ap- plicable  generally to all cases with which the general  law deals.  In that sense, the Code is a general law  regulating the  procedure for the trial of criminal  cases,  generally; but  if it lays down any bar of time in respect  of  special cases in special circumstances like those contemplated by s. 417(3)  &  (4),  read together, it will  be  a  special  law contained within the general law.  As the Limitation Act has not  defined  ’special  law’, it is  neither  necessary  nor expedient to attempt a definition.  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(1); Canara Bank Ltd. v. The Warden Insurance Co.(2) 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 Schedule of  the  Limitation  Act,

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because s. 29(2) applies where there is a difference between the  period  prescribed  by  the  Limitation  Act  and  that prescribed  by  the  special  law.   It  is  said  that  the Limitation  Act does not prescribe any period of  limitation for an application for special leave to appeal from an order of  acquittal at the instance of a private  prosecutor.   In the  first  instance,  the Limitation  Act,  Art.  157,  has prescribed the rule of limitation (1) I.L.R. 30 Pat. 126. (2)  I.I.R. [1952] Bom. 1083. 989 in  respect of appeals against acquittal at the instance  of the  State.   Hence,  it  may  be  said  that  there  is  no limitation  prescribed by the Limitation Act for  an  appeal against  an order of acquittal at the instance of a  private prosecutor.   Thus,  there  is  a  difference  between   the Limitation  Act  and the rule laid down in s.417(4)  of  the code in respect of limitation affecting such an application. Section 29(2) is supplemental in its character in so far  as it  provides  for the application of s. 3 to such  cases  as would  not come within its purview but for  this  provision. And for the purposes of determining any period of limitation prescribed by any special law, it has made the provisions of the  Limitation Act, referred in cl. (a) of sub-section  (2) of  section  29 applicable to such cases to  the  extent  to which  they  are not expressly excluded by such  special  or local law, and cl. (b) of that subsection expressly lays  it down  that  the remaining provisions of the  Limitation  Act shall  not apply to cases governed by any special  or  local law.  In our opinion, therefore, the provisions of the Code, supplemented by the provisions of s. 29(2) of the Limitation Act, make it clear that s. 5 of the Limitation Act would not apply to an application for special leave to appeal under s. 417(3) of the Code. That  is our conclusion based on the interpretation  of  the statutes  in  question.  But the High Courts  of  Allahabad, Andhra Pradesh and Madras have taken the contrary view.   On the  other  hand, earlier decisions of  the  Allahabad  High Court at-id the Bombay High Court, to be presently  noticed, have  taken  the  view that what we have  indicated  is  the correct view of the legal position. A Division Bench of the Allahabad High Court, in the case of Mohammad Ibrahim v. Gopi Lal (1) bad taKen the view that the words  of  sub.s.  (4)  of s. 417 make  it  clear  that  the application under sub.s. (3) must be made within 60 days  of the 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(2).  The three Hon’ble  judges con- (1) A.I.R. (1958 All 691). (2)  I.L.R. [1960] 2 All. 761. 990 stituting  the full bench, in separate but concurring  judg- ments,  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

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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. 417(4). In the Madras High Court, a Single Judge decided the case of Viswanathan  Chettiar. in re (1) and held that  "section  1, sub-section  (2)  of the Criminal Procedure Code  makes  all laws applicable to Criminal Procedure Code including the Law of  Limitation and nothing could prevent the appellant  from taking  advantage  of section 5 of the Limitation  Act."  He also  held that there was no difference between  the  period prescribed  by  the  law  of  limitation  and  the  Criminal Procedure Code.  Both these observations do not appear to be correct. Another Single Judge of the Madras High Court decided in the case  of Coimbatore Municipality v. K. L. Narayanan(2)  that s.  5  of  the Limitation Act could be  availed  of  by  the private  prosecutor, but the learned judge did not base  his decision  on the reasoning of the previous judgment of  that Court  but preferred to follow the reasoning adopted by  the Andhra  Pradesh  High  Court  in  P.  F.  Subbareddi  v.  D. Papireddi(3) and in re Parchuri Adeshamma(4). In  our  opinion, the view taken by the Full  Bench  of  the Bombay  High Court in the case of Anjanabai  v.  Yeshwantrao Daulatrao Dudhe(5) is the correct one.  In that case it  was (1)(1957) 1 M.L.J 150. (2)  A.I.R. [1958] Mad. 416. (3)  A.T.R. [1957] And.  Pra. 406. (4) A.I.R. [1958] And.  Pra. 230. (5) I.L.R. [1961] Bom. 135. 991 held  that the provisions of s. 417(4) were a ’special  law’ within  the meaning of s. 29(2) of the Limitation  Act.   In that  cast" the High Court has dealt with the  decisions  of the  different  High  courts on the question  and  with  the reasonings  for  those  decisions.  As  we  agree  with  the conclusions of the High Court of Bombay, we do not think  it necessary  to repeat the observations made therein,  bearing on the reasons given by the High Courts of Allahabad, Andhra Pradesh and Madras for coming to contrary conclusions. For the reasons given above, We hold that the view taken  by the High Court of Punjab is entirely correct.  The appeal is accordingly dismissed, Appeal dismissed.