Harbir Singh vs Ali Hasan and Others

Satish Chandra, J.—This is an application u/s 5 of the Limitation Act It prays that the delay in filing the petition for Special leave to appeal u/s 417(3), Code of Criminal Procedure be condoned.

Learned Counsel for the opposite parties has contended that Section 5 of the Limitation Act is inapplicable to a petition for leave u/s 417(3), Code of Criminal Procedure and as such the application is not maintainable.

Under the Limitation Act of 1908 there was a difference of opinion in the various High Courts as to the interpretation of Section 29(2) of that Limitation Act. Some High Courts including the majority of a Full Bench of this High Court took the view that the Code of Criminal Procedure was not a local or special law within the meaning of Section 29 of the Limitation Act. Other High Courts held to the contrary. The Supreme Court in Kaushalya Rani v. Gopal Singh 1964 AWR 454, settled the controversy and held that Section 417(3) and (4) of the Code of Criminal Procedure was a special law and that Section 29(2) did apply to petitions for leave to appeal u/s 417(3), Code of Criminal Procedure. The provisions of Section 29 of the new Limitation Act No. 36 of 1963 are, from this point of view similar to the corresponding provisions of the earlier Act. The same interpretaion would be applicable to it.

The second point which was the centre of controversy amongst the various High Courts related to the interpretation of the word "different" in the opening part of Section 29(2), the material part whereof runs as follows:

Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule....

One set of authorities held that the word "different" covers a situation only where the Limitation Act does perscribe a period of limitation for the particular appeal or matter and the special or local law prescribes a different period therefor.

A second series of authorities lay down that in a situation where the Limitation Act does not prescribe any time limit, but the special law does prescribe a time limit to it, the special law will be deemed to be providing for a different period. The Supreme Court has settled this controversy as well. In Vidyacharan Shukla Vs. Khubchand Baghel and Others, , the majority of opinion upheld the latter view; per B.P. Sinha, C.J. and Ayyangar, J. (Paragraph 5) and Subba Rao, J. (paragraphs 23 and 24). It was held that Section 29(2) would apply even to a case where a difference between the special law and the Limitation Act arose by an omission to provide for a period of limitation to a particular proceeding, in the Limitation Act.

Learned Counsel for the opposite parties next submitted that the applicability of Section 5 of the Limitation Act is "expressly excluded." Section 29(2) of the current Limitation Act states that 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. The learned Counsel urges that Section 417(4) Code of Criminal Procedure which is the special law expressly excludes the applicability of Sections 4 to 24, Limitation Act. He urges that in Section 417(4) there is a clear mandate that no application for 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; and that this provision amounts to a direct prohibition. By condoning the delay u/s 5 the Court shall be entertaining the application after the expiry of the prescribed period and be contravening this mandatory provision. In this sense the application of Section 5 Limitation Act is said to be "expressly" excluded. The argument thus presented is, no doubt, attractive but must be negatived. In Kaushalya Rani''s case (supra) the Supreme Court held that Section 29(2) would apply to an application for special leave to appeals u/s 417(3) Code of Criminal Procedure. This decision implies that their Lordships did not countenance this interpretation of the phrase "expressly excluded."

In Commissioners of Pabna Municipality and Another Vs. Nirode Sundari Dasya Basak and Another, the words ''and not afterwards'' in Section 535(2), Bengal Municipal Act, were held not to amount to ''express exclusion'' and Section 15(2), Limitation Act was he d to be applicable. The provision in Section 167, Bombay District Municipality Act 3 of 1901 that no suit shall be commenced without one month''s previous notice in writing nor after six months of the date of the act complained of, was not held to amount to ''express exclusion''; Section 15(2) of the Limitation Act was held to be applicable. See Chhaganlal Sakerlal Vs. The Municipality of Thana, .

The expression "expressly excluded" is clear enough. It signifies exclusion by words. It will not mean exclusion by a process of construction or reasoning. In Vidyacharan''s case (supra) Subba Rao, J. observed in paragraph 27 that Section 29 speaks of express exclusion and that though Section 116-A of the Representation of the People Act 1951 provides a period of limitation for an appeal and also the circumstance under which the delay can be excused, yet it does not amount to an express exclusion within the meaning of Section 29 of the Limitation Act.

In Raja Pande v. Sheopujan Pande AIR 1942 All 429, Iqbal Ahmad C.J. speaking for the majority of the Full Bench, held that where the special or local law was a self-contained Code in the matter of limitation the applicability of Section 29(2) is excluded. That was a case under the Provincial Insolvency Act. Sections 63 and 75 of the Provincial Insolvency Act prescribe periods of limitation for various applications and appeals under that Act. Section 78 makes provisions of Sections 5 and 12 of the Limitation Act applicable to appeals and applications under the Provincial Insolvency Act. His Lordship observed:

"It is, therefore, manifest that unlike many other "special or local law", the Provincial Insolvency Act does not stop short at merely prescribing periods of limitation, but also makes provisions for the computation of such periods and for exclusion of certain time in such computations. This, I feel, is a strong indication of the fact that the Legislature intended to make the Act a self-contained Act in the matter of "limitation" for proceedings contemplated by the Act. If the Legislature had intended that, apart from Sections 5 and 12, Limitation Act, other sections of that Act should apply to proceedings under the Provincial Insolvency Act, one would have expected the Legislature to enumerate those sections of the Limitation Act also in Section 78. When one finds that the Legislature, in a particular statute has made provisions about the applicability of certain sections of the Limitation Act to proceedings under that statute, the conclusion is irresistible that the Legislature intended only the enumerated sections and no other sections of that Act to apply to proceedings under that statute.

This observation distinguishes the Full Bench case from the instant case. Section 417, Code of Criminal Procedure provides a period of limitation for applications for special leave to appeal by a complainant. It does not speak at all of the applicability of any of the sections of the Limitation Act. It does not lay down any rules for the computation of the period of limitation. It does not provide for exclusion of time in the computation of period of limitation. This provision of the Code, therefore, cannot be characterised as a self-contained Code in the matter of limitation. Consequently no intention of excluding the application of the various provisions mentioned in Section 29(2), Limitation Act can be gathered.

Section 29(2) of the Limitation Act 1908 did not make the provisions of Section 5 thereof applicable. In this respect the new Limitation Act is different. It does make Section 5 applicable for purposes of determining the period of limitation prescribed by any special or local law. Section 417(3), Code of Criminal Procedure being such a special law the period of limitation prescribed by it can be determined with the aid and assistance of Section 5, Limitation Act.

The preliminary objection is overruled.

On the merits, the facts stated in the affidavit accompanying the petition u/s 5, Limitation Act have not been controverted by any counter-affidavit. On the face of it they make out a sufficient cause for condoning the delay.

The petition is allowed. The delay in filing the application for special leave u/s 417(3), Code of Criminal Procedure is condoned.