(1) One K. Ranganayakamma filed a private complaint against four persons alleging that A-4 dragged her by hair, that A-2 fisted her on the back, that as she extricated herself from them and was trying to get into her house, A-1 beat her with a chappal on her left cheek and that A-3 handed over a stick to A-1 for the purpose of beating her. The learned Judicial Second Class Magistrate, Mangalagiri, took the case on his file under Sections 323, 352, 355 and 109 I.P.C. After full trial, he convicted A-1 under Sections 355 and 323 I.P.C., believing the case of the prosecution about beating and sentenced him to pay a fine of Rs. 50/- and Rs. 30/- respectively and in default to suffer rigorous imprisonment for one month on each count. He acquitted A-2, A-3 and A-4.
(2) A-1 filed Crl. Appeal No. 427/64 before the learned Sessions Judge, Guntur. The latter acquitted A-1 together. The complainant filed Crl. R.P.No. 25 of 1964 on 28-10-1964 before the learned Sessions Judge for making a reference to this Court against the judgment of the trial Court so far as it related to the acquittal of A-2, A-3 and A-4.
(3) The learned Sessions Judge, after hearing, ultimately dismissed the revision petition on 5-8-1965 on merits. Thereupon, the complainant filed this petition, Cr. M.P. No. 2036 of 1965, under Section 417(3) Cr.P.C. for special leave to appeal against the acquittal of A-2, A-3 and A-4 by the learned Magistrate.
(4) The complainant filed Crl. M.P. No. 2035 of 1965 for excusing the delay of 309 days in filing the Special Leave Petition, Crl. M.P. No. 2036 of 1965. The case of the complainant is that she was given wrong legal advice and, therefore, she filed Cr. R.P. No. 25 of 1964 on 28-10-1964 before the learned Sessions Judge and that, only subsequently, she came to know from an Advocate in Hyderabad that an appeal against the acquittal under Section 417(3) Cr. P.C. was proper legal remedy and that the period from 28-10-1964 to 5-8-1965 should be excluded under Section 5 of the Limitation Act. If the delay is excused, the appeal would be in time.
(5) Sri I. Koti Reddy, the learned Advocate for the respondents, contested Crl. M.P. No. 2035 of 1965.
(6) Sri R. Venugopala Reddy, the learned counsel for the petitioner, contends that under Section 29 of the new Limitation Act (Central Act 36 of 1963), the provisions under S. 5 of the old Act are available to the complainant. But, the learned counsel for the respondents contends that S. 29 of the new Act does not apply to the present case.
(7) Section 29 of the Limitation Act (Central Act 36 of 1963) runs as follows:
'Section 29 . ..
(a) 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
(b) for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law
(c) the provisions contained in Sections 4 - 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.'
For the purpose of convenience in discussion, I have divided the above sub-section (2) into portions (a), (b) and (c).
(8) Sri Koti Reddy, the learned counsel for the respondents, contends that portion (c) would apply only to a case where portion (a) applies and that portion (a) does not apply to the present case because the new Limitation Act does not prescribe any period of limitation for applications like the present one. He interprets portion (a) as meaning that the special law should prescribe a specific period of limitation and that the Schedule to the new Limitation Act should also prescribe a specific period of limitation and that this latter period should be different from the period prescribed for the former.
(9) In the present case, the special law namely, Section 417(3) Cr. P.C. prescribes a specific period of limitation for an application under Section 417(3) Cr.P.C. But, the schedule to the Limitation Act does not prescribe any period of limitation for such an application.
(10) In Health Inspector v. Kelappan, : AIR1965Ker31 , a question arose as to whether the provisions of Section 5 of the Limitation Act would apply to an application for special leave to appeal from an order of acquittal under sub-section (3) to Section 417(3) Cr. P.C. the learned Judge (Govinda Menon, J.) held that Section 5 applied to applications under Section 417(3) Cr. P.C. Sri Koti Reddy points out that the contention, which he has now raised before me, was not raised in that case and that the application of Section 5 of the Limitation Act was conceded and not decided after contest as seen from the following observations:-
'Learned counsel for the respondent concedes that, in view of the amendment, S. would now apply to applications under Section 417(3).'
The learned Judge also observed thus:- (at p. 32)
'Further, the extension of the provisions of Section 5 of the Limitation Act cannot be considered to be a new enactment prescribing a new period of limitation .. ..
Alterations in procedure, therefore, are always held to be retrospective unless a good reason to the contrary is forthcoming. The real test appears to me to be whether the new rule is essentially an alteration of the procedure of the Court or one of rule limitation. I am of opinion that the change really amounts to one of procedure and that there can be no vested right in it and Section 5 would apply in this case.'
(11) In Anjanabai v. Yeshwantrao, : AIR1961Bom154 (FB), the same question was considered with respect to S. 29 of the old Limitation Act (Central Act 9 of 1908) which is substantially similar to S. 29 of the new Act (Central Act 36 of 1963) so far as portion (a) is concerned. The Full Bench of the Bombay High court extracted the following passage from the decision in Canara Bank Ltd. v. Warden Insurance Co., Ltd., : AIR1953Bom35 :
'The contention of Mr. Adarkar is that sub-section (2) only applies when you find a period of limitation laid down in the first schedule and a special law alters or modifies that period, and inasmuch as the Limitation Act does not provide for a period of limitation in respect of an appeal from a special Officer to the High Court, S. 29 has no application to this particular special law. In our opinion that is not the correct interpretation to put upon the language used by the legislature, viz., 'a period of limitation different from the period prescribed therefor by the first schedule.' The period of limitation may be different under two different circumstances. It may be different if it modifies or alters a period limitation fixed by the first schedule to the limitation Act. 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. We are conscious of the fact that language used by the Legislature is perhaps not very happy but we must put upon it a construction which will reconcile the various difficulties caused by the other sections of the Limitation Act and which will give effect to the object which obviously the Legislature had in mind, because if we were to give to S. 29 the meaning which Mr. Adarkar contends for, then the result would be that even S. 3 of the Limitation Act and which will give effect to the object which obviously the Legislature had in mind, because if we were to give to S. 29 the meaning which Mr. Adarkar contends for, then the result would be that even S. 3 of the Limitation Act would not apply to this special law. The result would be that although an appeal may be barred by limitation, it would not be liable to be dismissed under section 3. If possible, we must try and avoid such a starting result and we are sure that the Legislature did not intend that such a result should come about by the language used by it. Therefore, in our opinion, it is clear that we have before us a special law which does prescribe a period of limitation different from the period prescribed therefor by the first schedule to the Limitation Act.'
This view was approved by their Lordships of the Supreme Court in Kaushalya Rani v. Gopal Singh, : 4SCR982 . In paragraph 8 of that judgment, it is observed as follows:- (at page 263)
'...... 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 Section 417(4) of the Code in respect of limitation affecting such an application....'
(12) The position is as follows. Section 417(4) Cr. P.C. prescribes a specific period of limitation for an application under Section 417(3), Cr. P.C. The schedule to the new Limitation Act does not prescribe any period of limitation for such an application. Therefore, in view of the above decisions of the Bombay High Court and the Supreme Court, there is difference between the period of limitation prescribed by the special Act and the period of limitation according to the schedule to the Limitation Act. In view of S. 29 of the Limitation Act, Section 29 of that Act applies with the result that Ss. 4 to 24 of the same Act (including S. 5) will apply to applications under S. 417(3), Cr. P.C. The provisions of S. 5 of the Limitation Act are not expressly excluded by the special law namely, Criminal Procedure Code. Therefore Section 5 of the Limitation Act applies to this case. Considering the circumstances of the case, I think this is a fit case for excusing the delay.
(13) I accordingly excuse the delay and allow Crl. M.P. No. 2035 of 1965.
(14) The prosecution case is supported by eye-witnesses including P. Ws. 2 and 3. In his judgment, the learned Magistrate observed as follows:-
'P. Ws. 2 and 3 appear to be disinterested witnesses and there is no reason why their evidence should not be accepted.'
Believing the prosecution evidence regarding the occurrence, he convicted the first accused. He also believed the prosecution evidence regarding the parts played by A-2, A-3 and A-4. In para 4 of his judgment, the learned Magistrate held as follows:-
'.....A-2 to A-4 in this case are women like PW 1. This allegation against A-4 is that she abused P.W. 1 and dragged her holding her hair and the allegation against A-2 is that she fisted her on the back. P.W. 1 swears that she had pain in the back on account of this fisting and she even informed this to the Doctor. But the Doctor has not mentioned it in the certificate nor does he refer to it in the evidence. This circumstance makes any fisting doubtful. P.W. 1 does not allege that she suffered any pain due to the dragging by A-4 nor are there any injuries which can be ascribed to be due to pulling by the hair. I, therefore, feel that the so called dragging or fisting should have been so trivial as not to cause any pain to P.W. 1 and it being not uncommon among women of the class and status of PW. 1 and A-2 and A-4 for dragging and fisting I am of opinion that the allegation against A-2 and A-4 may well be dismissed as trivial under Section 95 I.P.C. In the result, I find that the prosecution have failed to prove the offence under Section 352, I.P.C. against A-2 and A-4 and acquit them under Section 258(1), Cr. P.C. ....... In this case, there was absolutely no provocation for A-3. Being a pregnant woman she was probably just a passive witness. .. Despite the evidence of P.Ws. 1 to 3, I am doubtful about her instigation in the manner spoken by P.Ws.'
The learned Sessions Judge in his judgment held as follows:-
'So far as A-2 and A-4 are concerned, the lower Court is not specific as to the reasons for the acquittal. One reason seems to be that it is too trivial to take cognizance of the offence and applying Section 95, I.P.C. acquitted them. ... Since the Medical evidence does not support P.W. 1's evidence, on that ground A-2 and A-4 are entitled to be acquitted. What the lower Court seems to think is that even otherwise the offence is trivial and applied Section 95, I.P.C. I do not think there is any illegality, impropriety or anything wrong in the appreciation of the evidence by the lower Court. I do not find any grounds to interfere with that order.'
Section 95, I.PC. runs as follows:-
'S. 95. Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.'
The learned Magistrate believed the prosecution version that A-2 dragged the complainant by her hair and A-4 fisted on her back. Whatever be the status of the complainant and the accused, it cannot be said that, by being dragged by hair, the harm caused is so slight that a person of ordinary sense and temper would not complain of such harm when especially dragged in an aggressive manner in the course of an attack. Therefore, Section 95, I.P.C. would certainly be not applicable to a case like this. If a person was dragged by hair in an aggressive manner in the course of attack, it means that the aggressor used force of tension of the hair which was strong enough to pull the entire weight of the body of the victim and to move the body of the victim. It is certain that pain would have been caused by such force. When an aggressor fists a victim in the course of an attack, she ordinarily intends to cause pain and does cause pain unaffected by the question whether a Doctor found injury caused by the fracture. So, when the learned Magistrate believed the version of the prosecution that A-2 dragged P.W. 1 by hair and that A-4 fisted PW. 1, he was wrong in holding the acts were so trivial as not to cause pain. The acts constituted offence of causing hurt as defined in S. 319, I.P.C. and made punishable by Section 323, I.P.C. If such dragging by hair in an aggressive manner and fisting is not uncommon among the women in that particular class and status, it is the duty of Courts to make them uncommon by awarding adequate punishment and not to ignore such acts as trivial. For, the aim of the law is to see that such offences do not recur and disturb the public peace. When the prosecution witnesses have deposed that A-3 played specific part in the attack and when the learned Magistrate found P.Ws. 2 and 3 to be reliable and accepted their evidence, the ground given by the learned Magistrate for acquittal that she was probably a passive witness is not convincing. The reasoning given for the acquittal of A-2, A-3 and A-4 by the learned Magistrate is not sound. The view taken by the learned Sessions Judge that there was no illegality, impropriety or anything wrong in the appreciation of the evidence by the learned Magistrate is also not correct. But, all the same, as the occurrence is stated to have taken place on 25-6-1964, a long time of one year and eight months has elapsed and the parties had been put to considerable worry and expense over the trial and the revision. I do not, therefore, think it a fit case for granting special leave.
(15) I, therefore, dismiss Crl. M.P. No. 2036 of 1965.
(16) Special leave refused.