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Sita Ram and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 691 of 1959
Judge
Reported inAIR1961All151; 1961CriLJ338; [1961(2)FLR332]; (1961)IILLJ1All
ActsFactories Act, 1948 - Sections 106; Limitation Act, 1908 - Sections 12, 29 and 29(2)
AppellantSita Ram and anr.
RespondentState
Appellant AdvocateJ. Swarup, Adv.
Respondent AdvocateAsstt. Govt. Adv.
DispositionRevision dismissed
Excerpt:
limitation - complaint made - section 106 of the factories act, 1948 and section 12 of limitation act,1908 - three months prescribed period of limitation for filing complaint - held, the date of knowledge of offence being committed should be excluded. - .....not prescribe for a complaint, i.e., an application, a period of limitation different from the period prescribed therefor by the first schedule. there is no period of limitation prescribed for complaints by the first schedule. but for section 106 of the factories act, there would have been no period of limitation within which a complaint must be filed. because no period of limitation in prescribed for an application under section 106, it was argued that the first limb does not apply.the first limb applies whenever a local or special act prescribes a period of limitation different from that prescribed for it by the first schedule. it is not essential that some period of limitation must be prescribed by the first schedule before a period of limitation prescribed by a special or local.....
Judgment:
ORDER

M.C. Desai, J.

1. The simple question raised in this revision application is whether the complaint filed on 30-4-1958 for an offence under the Factories Act, 1948, the commission of which came to the notice of the Inspector on 31-1-1958, was 'withinthree months of' the latter date or not. Under Section 106 of the Factories Act no court can take cognizance of an, offence punishable under the Act unless complaint thereof is made 'within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector.'

If the period of three months is computed after excluding 31-1-1958, it is admittedly within three months, but if 31-1-1958 is taken to be the first day of the period of three months the complaint is admittedly not within three months. In B. P. Thakur v. State, 1959 All LJ 317 : (AIR 1959 All 787), I took the view that Section 12 of the Limitation Act applies, that consequently the date on which the offence came to the notice of the Inspector is to be excluded in computing the period, of three months and that even apart from Section 12 under the common law that day is to be excluded. Sri Jagdish Sarup asked me to reconsider the view taken by me; I have heard him but I am not persuaded to hold that the view is incorrect.

2. Sri Jagdish Sarup contended that Section 29 (2), Limitation Act, refers to a period of limitation prescribed for 'any suit, appeal or application' and that a complaint such as that referred to in Section 106, Factories Act, is not a 'suit, appeal or application'. It may be granted that a complaint is not a suit or appeal but I see no reason to hold that it is not even an application. The word 'application' has not been defined anywhere and has no technical meaning.

It is defined in Shorter Oxford English Dictionary to mean 'the action of making an appeal, request or petition to a person.' A complaint is nothing but a petition or request to a Magistrate to take notice of an offence committed by a certain person and to punish him after a trial. It is simply an application requesting a Magistrate to take certain action. Merely because the basis on which action is sought against a person is an accusation against him, a complaint does not cease to be an application.

3. The next argument of Sri Jagdish Sarup was that the first limb of Sub-section (2) of Section 29 has no application in the present case because Section 106, Factories Act does not prescribe for a complaint, i.e., an application, a period of limitation different from the period prescribed therefor by the First Schedule. There is no period of limitation prescribed for complaints by the First Schedule. But for Section 106 of the Factories Act, there would have been no period of limitation within which a complaint must be filed. Because no period of limitation in prescribed for an application under Section 106, it was argued that the first limb does not apply.

The first limb applies whenever a local or special Act prescribes a period of limitation different from that prescribed for it by the First Schedule. It is not essential that some period of limitation must be prescribed by the First Schedule before a period of limitation prescribed by a special or local Act can be held to be different. If no period for an application is prescribed by the First Schedule, any period prescribed by a special or local Act must necessarily be different. Any period oflimitation that is not the same as the period prescribed by the First Schedule must be different.

If a period other than of three months is prescribed for a complaint by the First Schedule, the period of three months prescribed by Section 106 must be held to be different. Similarly if no period is prescribed for a complaint by the First Schedule the period prescribed by Section 106 must-be held to be different and the first limb of Sub-section (2) must be applied. If no period of limitation for a complaint is prescribed by the First Schedule it means that there is unlimited period and the moment some period is prescribed for a complaint it becomes different from that prescribed therefor by the First Schedule.

4. Really it is immaterial whether the first limb of Sub-section (2) applies or not; what is material as whether the second limb applies or not. It lays down that for the purpose of determining any period of limitation prescribed for any application by any special law the provisions contained in Section 12 shall apply (in so far as and to the extent to which they are not expressly excluded by the special law). Sri Jagdish Sarup contended that this second limb applies only in a case governed by the first limb; I do not agree. Barring the word 'and' there is no connection whatsoever between the two limbs. Unless some words are imported one cannot say what connection there is between the two-limbs.

It would not suffice merely to say that the two limbs are connected with each other; one would, have to ascertain in what manner they are connected, i.e., how the second limb is dependent upon the first lirnb. The only connection that can be imagined between the two limbs is that the second limb applies only when the first limb applies, i.e., when a special law prescribes for any application a period of limitation different from that prescribed by the First Schedule for the purpose of computing the period, the provisions contained in Section 12 shall apply. In other words the provisions of Section 12 are not to apply if a special law does not prescribe for an application a period of limitation different from that prescribed therefor by the First Schedule. There is nothing in the language used in the second limb to support this contention.

But, on the contrary, the repetition of the words 'by any special or local Act' indicates that the second limb is not at all dependent upon the first limb and is an independent provision. A special law may prescribe for an application a period of limitation which is either the same as, or is different from, that prescribed therefor by the First Schedule; the first limb governs the second alternative but the second limb may govern both the alternatives and contains nothing to suggest that it governs only the second alternative. If it was intended to govern only the second alternative one would have expected it to be worded differently. It would have been enough for the Legislature simply to say

'and for the purpose of determining such period'',

and it would not have said,

'for the purpose of determining any period oflimitation prescribed for any suit, appeal or application by any special or local law.'

The repetition of the words 'period of limitation prescribed for any suit, appeal or application'' and of the words 'any special or local law' show that the second limb was intended to be of general application and not confined to a case governed by the first limb. The Legislature had to provide for computation of period of limitation prescribed by a special law, because Section 3 of Limitation Act and Sections 4 to 25 which control it, apply only to the computation of a period of limitation prescribed by the First Schedule.

Section 3 itself is in two parts, one laying down that every application made after the period of limitation prescribed therefor by the First. Schedule shall be dismissed and the other part is that this provision is subject to the provisions contained in Sections 4 to 25. In the case of a period of limitation prescribed by a special law the Legislature had to make provision for both the parts covered by Section 3. Accordingly, for the first part it enacted the first limb of Section 29(2) and for the second part it enacted the second limb.

Even in the case of a special law prescribing for an application the same period Of limitation as that prescribed therefor by the First Schedule, the Legislature had to provide for the application or non-application of Sees. 4 to 25 and the second limb contains the Legislature's decision on this point. I am, therefore, of the opinion that the second limb is of general application, i.e., it applies in every case in which a special law prescribes any period of limitation for an application. Consequently even if the question whether the period of limitation prescribed by Section 106 of the Factories Act is different from the period prescribed therefor by the First Schedule is answered in the negative, Section 12 Limitation Act will apply because it has not been expressly excluded by the Factories Act.

5. It was not contested that if Section 12, Limitation Act applies the complaint was within time.

6. Even if this case were not governed by Section 29 (2) and, therefore, Section 12 did not apply, under the common law the date 31-1-1958 must be excluded when computing the period of three months. 'Within three months' means within the whole course of three months, i.e., before the end of the last day of three months. Anything that is done on the last day of the three months in 'within three months'. It is stated in Stroud's Judicial Dictionary, Third Edition, Volume 4, page 3320 that 'where something is to be done within' a stated time' it means that it is to be done at some time during the course of the stated time. 'Within three months of the date' means 'within three months after the date'. 'Of is the equivalent of 'after'. 'Within 21 days of the execution' means 'within 21 days after the execution'. See Stroud's Judicial Dictionary, Volume 3, page 1964. Therefore 'within three months of 31-1-1958' means 'within three months after 31-1-1958' and 30th April, 1958 is within that period it being the last day of it. Reference may also be made to paragraph 207 of Halsbury's Laws, of England, SecondEdition, Volume 32, page 142 which lays down the general rule that

'in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him.'

7. I find that the complaint was within timeNo other question was raised before me and theapplication is dismissed.


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