N.K. Kartkikeyan vs A.G. Ravindran and Others

M.M. Parted Pillay, J.—This is a petition to condone delay in filing the Crl. M. C. The Magistrate dismissed the complaint on 1-11-1990 on the ground that the petitioner (complainant) was not present when the case was called for. Against that order petitioner filed Crl. R. P. 21 of 1991 before the Sessions Court, Trichur. The Session Judge dismissed the revision petition on the ground that it is not maintainable. It is thereafter that the above Crl.M. C. has been filed. Contention of the petitioner is that there was no intentional delay or laches on his part and the delay occurred on account of the wrong filing of the Criminal Revision Petition before the Sessions Court, Trichur and also en account of his Illness. To prove the Illness, petitioner has produced Annexure-I medical certificate.

2 Counsel for the respondents opposed the application mainly on the ground that Section 5 of the Limitation Act cannot have any application in a case coming u/s 378 (S) of the Cr. P. C. He argued that the Code of Criminal Procedure specifically provides 60 days as the period of limitation and that being so, Section 5 of the Limitation Act cannot be invoked by the petitioner.

The question that arises for consideration is whether in an application u/s 378 (5) of the Cr. P. C. delay in presentation can be sought to be condoned u/s 5 of the Limitation Act. Section 29(2) of the Limitation Act provides that 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. Thus, from a reading of Section 29(2) of the Limitation Act it is apparent that Sections 4 to 24 will apply when they are not expressly excluded by any special or local law. Section 29(2) makes an important departure from Section 29(2) of the old Limitation Act (190&Act). u/s 29(2) of the present Act (Limitation Act, 1963) Section 5 is made applicable. As Section 5is thus made applicable, it is open to a party to avail of it for the purpose of extending the period of limitation so long as the special or local law does not expressly exclude the applicability of Section 5. In a case where special or. local law expressly excludes applicability of Section 5, It would not certainly be open to a party to invoke its aid. The time limit specified u/s 378 (5)Cr. P. C. for filing application for grant of special leave to appeal from an order of acquittal is six months where the complainant is a public servant and sixty days in every other case. Period has to be computed from the date of order of acquittal. Merely because the time limit Is specified u/s 378 (5) of Cr, P. C. it is not possible to hold that Section 3 of the Limitation Act cannot be invoked as there is nothing in the Criminal Procedure Code which expressly excludes the applicability of Section 5. In Mangu Ram Vs. Municipal Corporation of Delhi, the Supreme Court held that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would, be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the limit of sixty days prescribed In Section 417 (4), the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. The Supreme Court was considering Section 417 of the old Code which corresponds to Section 378 of the present Code with certain alterations. As the Criminal Procedure Code does not specifically exclude the application of Section 5 of the Limitation Act and as Section 29(2) of the Limitation Act makes the position clear that Section 5 can be invoked for condonation of delay, contention of the second respondent that Section 5 cannot be availed of by the petitioner is untenable.

Considering the averments in the affidavit in support of the A petition, I find that sufficient grounds have been made out to condone the delay. Delay is condoned. Petition stands allowed.