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Silchar Municipal Board Vs. Rakhal Chandra Roy - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantSilchar Municipal Board
RespondentRakhal Chandra Roy
Excerpt:
- - sharma), where section 12 of the limitation act in the first case and sections 4 and 12 in the second case were held to be applicable in an appeal under the representation of the people act, 1951. we are, therefore, clearly of opinion that section 5 of the limitation act will be applicable in this case under section 29(2) of the limitation act......in the code shall be deemed to be the period under the limitation act for the purpose of a special leave application and consequently section 5 shall apply as there is no express exclusion of this section in section 417 or anywhere in the code. the words 'expressly excluded' in section 29(2) mean that the special law must expressly mention the sections in order to exclude their application. express exclusion cannot mean an exclusion which can be founded by recourse to dexterous argument. our attention has been drawn to two other decisions of the supreme court in : 1970crilj1014 (lai ram v. hari ram) and : [1971]1scr8 . (d. p. misra v. k. n. sharma), where section 12 of the limitation act in the first case and sections 4 and 12 in the second case were held to be applicable in an appeal.....
Judgment:

P.K. Goswami, C.J.

1. The above application for special leave to prefer an appeal Under Section 417 (3) of the Code of Criminal Procedure was filed two days beyond time. An application for condonation of the delay Under Section 5 of the Limitation Act 1963 (Act No. 35 of 1963) was filed. This application is resisted by the respondent.

2. The question that arises for consideration is whether Section 5 of the Limitation Act can be invoked in an application for special leave Under Section 417 (3), in view of the provisions of Sub-section (4) of Section 417 of the Code of Criminal Procedure.

4, Section 417 (4) reads as follows:—

No application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.

It is submitted that Sub-section (4) is a bar to entertainment of an application for special leave Under Section 417 (3) beyond the period of sixty days. In this connection, we have to turn our attention to Section 29(2) of the Limitation Act, which may be quoted:

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.

Prior to the amendment of the Limitation Act in 1963, Section 5 was specifically excluded Under Section 29 (2) (b) of the old Act. Under Section 29 (2) of the amended Act, it appears that Sections 4 to 24 shall apply under the following conditions:

(1) where any special law prescribes a period of limitation different from that prescribed by the Limitation Act; and

(2) if the special law has not expressly excluded the application of the provisions of Sections 4 to 24 of the Limitation Act.

It is submitted on behalf of the respondent that the Limitation Act has not prescribed any period of limitation for an application for special leave to appeal and therefore there is no period therein different from that prescribed by the local law.

5. In : [1964]6SCR129 (Vidyacharan v. Khubchand), following the earlier decision in : [1964]4SCR982 (Kaushalya Rani v. Gopal Singh), the Supreme Court has held that even if there is an omission in the Limitation Act in providing a period of limitation, when the special law provides such a period, such a provision of limitation provided in the special law is a period different from that in the Limitation Act. The Supreme Court approved of the decision of the Bombay High Court in : AIR1953Bom35 (Canara Bank Ltd. v. Warden Insurance Co.), where the Court held as follows:

If the first schedule to the Limitation Act omits laying down any period of limitation for a particular appeal and the special law provides a period of limitation, then to that extent the special law is different from the Limitation Act.

There is. therefore, no doubt that the Criminal P.C. is a special law for the purpose of Section 29(2) of the Limitation Act and since it provides a different period of limitation in an application for special leave to appeal, Section 3 of the Limitation Act shall apply, which will mean that the period of limitation prescribed in the Code shall be deemed to be the period under the Limitation Act for the purpose of a special leave application and consequently Section 5 shall apply as there is no express exclusion of this Section in Section 417 or anywhere in the Code. The words 'expressly excluded' in Section 29(2) mean that the special law must expressly mention the sections in order to exclude their application. Express exclusion cannot mean an exclusion which can be founded by recourse to dexterous argument. Our attention has been drawn to two other decisions of the Supreme Court in : 1970CriLJ1014 (Lai Ram v. Hari Ram) and : [1971]1SCR8 . (D. P. Misra v. K. N. Sharma), where Section 12 of the Limitation Act in the first case and Sections 4 and 12 in the second case were held to be applicable in an appeal under the Representation of the People Act, 1951. We are, therefore, clearly of opinion that Section 5 of the Limitation Act will be applicable in this case Under Section 29(2) of the Limitation Act.

6. It is true that there are three unreported decisions of this Court in Criminal Appeal No. 28 of 1966 (Intai AH v. Haru Bhumik) disposed of on 18-6-1966; Criminal Appeal No. 96 of 1964 (Ka Kwasilla Lyngdesh v. C. Heral Swar) disposed of on 4-8-1966 and Criminal Appeal No. 2 of 1967 (Rabindra Chandra Seal v. Khagendra Seal) disposed of on 20-3-1970 where Section 417 (4) of the Code of Criminal Procedure was held as a bar to the entertainment of a special leave application after the expiry of sixty days. We however find that in none of the above three decisions the Court's attention was drawn to the Supreme Court's decision in : [1964]6SCR129 (supra) and since the above decision, we have two other decisions of the Supreme Court, as already noted, viz.. : 1970CriLJ1014 and : [1971]1SCR8 . The three unreported division bench decisions therefore stand overruled by the above decisions of the Supreme Court which have laid down the law. For that reason, it is not necessary to refer this point to a Full Bench since the law laid down by the Supreme Court is binding. 7. We have already allowed the application for condonation of the delay on 10th November, 1970 and the reasons are given now as promised on that occasion.


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