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Municipal Board, Lucknow Vs. Bhagwan Das - Court Judgment

LegalCrystal Citation
SubjectCriminal;Limitation
CourtAllahabad High Court
Decided On
Case NumberCriminal Appeal No. 528 of 1956
Judge
Reported inAIR1959All500; 1959CriLJ930
ActsLimitation Act, 1908 - Sections 4 to 25, 29 and 29(2); Code of Criminal Procedure (CrPC) , 1898 - Sections 417(4); Prevention of Food Adulteration Act, 1954 - Sections 2(1) and 7
AppellantMunicipal Board, Lucknow
RespondentBhagwan Das
Appellant AdvocateIqbal Ahmed, ;K.S. Verma and ;B.L. Kaul, Advs.
Respondent AdvocateG.H. Naqvi and ;Govt. Adv.
DispositionApplication dismissed
Excerpt:
.....of limitation act, 1908 - period taken for obtaining copy of judgment will be excluded from the time of limitation - held, can be excluded. - - section 12(2) of the limitation act runs as follows :in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was-pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded,'the contention firstly is that there are no rules making it necessary for the applicant to file copies of the judgments of the trial court and of the sessions judge and, therefore, the time taken in obtaining such copies is not to be excluded under section..........local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law -- (a) the provisions contained in sections 4, 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law and(b) the remaining provisions of this act shall not apply.' it is said that since this particular period of limitation prescribed under section 417 (4) of the code of criminal procedure cannot be taken to be a period of.....
Judgment:

Gurtu, J.

1. One Bhagwan Das was convicted under Section 7, of the Prevention of Food Adulteration Act, 1954 (Act No. XXXVII of 1954) and sentenced under Si 16 thereof to pay a fine of Rs. 200/- or to undergo simple imprisonment for a period of two months, the case against him being that he had sold adulterated 'Kali Mirch' to Sri B. C. Dass, Food Inspector, appointed under the said Act.

2. Bhagwan Dass appealed to the learned Ses-sions judge who by his order dated 10-8-1956 allowed the appeal and set aside the conviction and sentence of Bhagwan Dass. The Municipal Board through its Medical Officer of Health and the Administrator who was complainant in the case preferred an application under Section 417(3), Cr. P.C. for special leave to appeal from the order of acquittal. This application was made on 17-10-1956. Along with the application were filed copies of the judgments of the learned Magistrate and of the learned Sessions Judge.

When this application for leave was taken upbefore us learned counsel for the opposite partycontended that the application was filed beyond theperiod of limitation of 60 days from the date ofthe order of acquittal of the Sessions Judge as prescribed by Section 417 (4) of the Code of Criminal Procedure and it was urged that the application shouldbe dismissed on the ground of limitation. It, there-fore, becomes necessary to deal with this questionof limitation.

3. On behalf of the complainant it is contended that if the time requisite for obtaining ther copies of the judgments of the Courts below is taken into account for computation of the period of limitation the application for leave to appeal is within time. This is accepted that if the time taken in obtaining the said copies is excluded in computing the period of limitation prescribed for the making of the application for leave to appeal then the application would be within limitation. It is necessary to quote Section 417(4) of the Code of Criminal Procedure. It runs as follows :

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

It is contended on behalf of the opposite party that this period of sixty days is an absolute period and that the benefit or Section 12(2) of the Limitation Act is not available to the applicant. Section 12(2) of the Limitation Act runs as follows :

'In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was-pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded,'

The contention firstly is that there are no rules making it necessary for the applicant to file copies of the judgments of the trial Court and of the Sessions Judge and, therefore, the time taken in obtaining such copies is not to be excluded under Section 12(2) of the Limitation Act. In regard to this contention it is true that there are no rules prescribing that a copy of the judgment of acquittal should be filed but inasmuch as an applicant cannot be expected to draw up his application without a copy of the judgment of acquittal the time necessary for obtaining such a copy must be considered to be time requisite within the meaning of Section 12(2) of the Limitation Act.

This view is supported by the decision reported in Jijibhoy N. Surly v. T. S. Chettyar Firm AIR 1928 PC 103. There it was pointed out that the word 'requisite' is a strong word and it may be regarded as meaning something more than the word required. It means 'properly required.' The Privy Council case was a case where it was not necessary on appeal to the appellate side that the memorandum of appeal should have annexed to it certified copies of the decree or order against which the appeal was made or the judgment on which such a decree or order was founded, nonetheless the time taken in obtaining the said copies was excluded. Their Lordships observed :

'The decree may be complicated, and it may fee open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal. As to the judgment, no doubt, when the case does not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he lias well con-eidered it.'

This view has the support of a decision of our own Court reported in Keshar Sugar Works, Bombav v. R. C. Sharma : AIR1951All122 . In that case although it was not necessary under the rules to file a copy of the decree along with the application for leave to appeal to the Privy Council Section 12 was applied and the time requisite for obtaining a copy of the decree appealed from was excluded. We are, therefore, of the view that the time necessary for obtaining the copy of the judgment of acquittal was time requisite. Now if Section 12(2) of the Limitation Act applies then that time has to be excluded in computing the period of limitation.

But it is argued that Section 12(2) applies only in cases of limitations prescribed in Schedule I of the Limitation Act. It is pointed that the period of limitation of 60 days prescribed by Section 417(4), Cr. P. C. is not a period of limitation which is contained in the First Schedule to the Limitation Act. It is also contended that the Criminal Procedure Code is not a special or local law and, therefore, the period of limitation prescribed by Section 417(4) can-toot be deemed to have been prescribed by the First Schedule by the application of Section 29 of the Indian Limitation Act either.

4. Section 3 of the Limitation Act runs as follows :

'Subject to the provisions contained in Sections 4 to 25 (inclusive) every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence.'

Section 29(2) of the Limitation Act runs as follows :

'Where any special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law --

(a) the provisions contained in Sections 4, 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by Such special or local law and

(b) the remaining provisions of this Act shall not apply.'

It is said that since this particular period of limitation prescribed under Section 417 (4) of the Code of Criminal Procedure cannot be taken to be a period of limitation prescribed in the First Schedule therefore Sections 4 to 25 of the Limitation Act cannot be availed of in the present case because, according to file contention or the learned counsel, those sections can only be availed of in a case where the period of limitation is prescribed in the First Schedule either directly or is deemed to be prescribed because of the application of Section 29 of the Limitation Act.

5. In our view this contention is not correct. Sections 4 to 25 are applicable even in a case where the period of limitation which is being applied is not entered in the First Schedule of the Limitation Act either directly or deemed to be entered by the help of Section 29 of the said Act. Sectional 4 to 25 are independent sections and whether the period of limitation is prescribed or not prescribed in the Schedule those sections are applicable. Each of these sections is an independent section by itself. They apply also to cases in which periods of limitation are prescribed outside the First Schedule. This has been held in a large number of cases with reference to Section 15 of the Limitation Act which prescribes that time during which proceedings are suspended should be excluded.

6. In Durag Pal Singh v. Pancham Singh : AIR1939All403 , it was stated :

'The general provisions of Section 15, Limitation Act, are intended to apply to periods of limitation prescribed in the Civil Procedure Code and are not confined in their operation to periods prescribed by the Limitation Act or by Schedule I. Section 48, Civil Procedure Code, does prescribe a period of limitation. Hence Section 48 of the Code is not uncontrolled by the provisions of Section 15, Limitation Act. In other words Section 48 of the Code does not impose a complete bar to the execution of a decree after the expiry of the period of 12 years irrespective of the provisions of Section 15 of the Limitation Act,'

It was further held that

'the rules as to computation of period of limitation laid down in Part III of the Act are intended by the Legislature to apply only to periods of limitation prescribed by the Schedule but apply also to periods of limitations provided for by other enactments.'

It was explained in this case that

'the enactment of Section 29 of the present Act in its present form was rendered necessary not because the word 'prescribed' in Part III of the Act did not mean prescribed by any law for the time being in force but because certain Courts had held that the application of the general provisions of the Limitation Act laid down in Part III to special and local Acts did 'affect or alter' the periods of limitation prescribed by those Acts and the Legislature disapproved of those decisions.'

7. In Amarendra Lal Khan v. Manindra Nath Roy : AIR1955Cal269 , it was held that Section 15 of the. Indian Limitation Act governs Section 48 of the Code of Civil Procedure. It was held :

'When the words used, as in Section 15 of the Limitation Act, axe 'the period of limitation prescribed' without stating 'prescribed In the first schedule' as in Section 3 of the Act, they refer to any period of limitation prescribed either in the Limitation Act or in any other Law.'

8. Likewise in Kandaswami Pillai v. Kannappa Chetty : AIR1952Mad186 it was held that

'the expression 'prescribed' in Section 15 (1) of the Limitation Act does not mean 'prescribed by the First Schedule' to the Act. It would include a case where a period of limitation is prescribed by any general statute like the Civil Procedure Code. Even if it be understood in the strictest sense, the period fixed by Section 48 of the Code must be deemed to have become a part of the Limitation Act by a process of incorporation in Articles 181 and 182.'

It was observed that

'whether the word 'prescribed' in Section 15 (1) would apply to periods of limitation provided by other statutes or not, it is clearly indicated by Article 181 that the period fixed by Section 48 is in 'pari materia' with the periods of limitation provided in the schedule to the Limitation Act.'

It was indicated that column 1 of Article 182 further supported this view and that the very fact that Section 48 of the Code operates in curtailment of the period provided by Article 182 conclusively shows that Section 48 also prescribed a period of Limitation.

9. It will thus be observed that in order to get the benefit of Section 15 and to have the time during which proceedings are suspended excluded it is not necessary that the period of limitation should be prescribed in the First Schedule. No doubt, the rulings referred to deal with cases of limitation under Section 48 of the Civil Procedure Code but the basis of these decisions seems to be that Sections 4 to 25 of the Limitation Act are independent of and not really controlled by Section 3 of the Limitation Act. The argument which has been used with reference to Section 15 is clearly applicable also to Section 12 of the Limitation Act.

That section is also in Part III which deals with computation of periods of limitation. The language of Section 12(2) has already been quoted and it will appear that that language is in general terms and the language is not restricted to limitations prescribed by the First Schedule of the Limitation Act. Section 3 of the Limitation Act could without doing violence to its language be read as not prohibiting the application of the other sections of the Act to periods of limitations not provided in Schedule I. The language used in Sections 4 to 25 is such that it is open to interpret these sections as of general application.

There seems no reason therefore why Section 12(2) of the Limitation Act should not be applied to the limitation prescribed by Section 417(4), Cr. P. C. The application of Section 12(2) in this way would make it possible for an applicant making an application for leave to file an appeal to properly present his objections to the judgment of acquittal. It is obvious that even though the applicant might have been present at the time at which the said judgment waa delivered he would not be able to retain the contents of the judgment in his memory and therefore to enable him to properly draw up his grounds of objection the possession of a copy of the judgment would be necessary.

It is to be noted that Section 29 of the Limitation Act extends the benefit of Sections 4, 9 to 18 and 22 of the said Act to special and local laws. The interpretation that we are giving would likewise extend the benefit of the relevant section of the Limitation Act to periods of limitation not prescribed by the First Schedule of that Act. If an interpretation which would place all periods of limitation on so far as possible the same basis of advantage without doing violence to the language of the Limitation Act which is being construed, then it is clearly desirable that such an interpretation should be given in order to bring about an equality so far as possible of rights.

10. Therefore it would appear that once it was held, as has been held, that the obtaining of the copy of the judgment of acquittal was requisite the time taken in obtaining it would be excluded in computing the period of limitation prescribed for the making of the application for leave to appeal under Section 417 (4), Cr. P. C.

11. Our attention has been invited to a judgment of a Division Bench or this Court given in Mohd. Ibrahim v. Gopi Lal, Criminal Misc. : AIR1958All691 . It was held by the Division Bench that Section 5 of the Limitation Act was not applicable to an application under Section 417 (3) or the Criminal Procedure Code. In arriving at that conclusion the learned Judges laid emphasis on the special words of Clause (4) of that section that 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 the order of acquittal. In the opinion of the Division Bench these words clearly showed the intention of the legislature. In the case of Parchuri Adeshamma AIR 1958 And-Pra 230, it has been laid down as follows :

'The Code of Criminal Procedure is not a special law but is a general law relating to procedure. Therefore Section 5 of the Limitation Act applies to an application for special leave made after the period prescribed by Sub-section (4) of Section 417 of the Criminal Procedure Code and the High Court can, in an appropriate case, extend that period.'

12. In our view Mohd. Ibrahim's case : AIR1958All691 , may require further consideration, but inasmuch as we are not concerned with Section 5 of the Limitation Act directly but with Section 12(2) it is not necessary to refer the matter to a fuller Bench,

13. Therefore, in our view this application for leave is competent and is within limitation.

14. Inasmuch as this is an application for leave to appeal from an acquittal we should not grant this application unless we are convinced that the conclusion of the court below that Bhagwan Dass was entitled to an acquittal could not be justified at all.

15. The facts of this case are that a purchase was made from Bhagwan Dass by the Food Inspector of pepper weighing half a Pao for which Bhagwan Dass was paid three annas. The case of the complainant was that the pepper was adulterated and therefore, in selling the same Bhagwan Dass had contravened the provision of Section 7 of the Act and that, therefore he had made himself liable to punishment. Now Section 2(i)(a) states that an article of food shall be deemed to be adulterated if the article sold by the vendor is not of the nature, substance or quality demanded by purchaser and is to his prejudice or is not of the nature, substance or quality which it purports or is represented to be. It is said that the Food Inspector asked for 'Kali Mirch' of good quality and that the 'Kali Mirch' supplied did not answer to that description.

The Public Analyst in his report on the sample of a part of the 'Kali Mirch' purchased which was sent gave his opinion that the sample contains about 50 per cent of hollow empty shells of pepper and that the sample was not of standard quality. It was admitted before us that no standard had been prescribed for 'Kali Mirch' under any rules made under the Act or under any law. Therefore the opinion of the Govt. Analyst that the sample is not of the Standard quality is a mere opinion. He had no touchstone whereby to test whether the pepper sent to him was of a standard quality or not. He was not examined as a witness and so his qualifications as an expert on the standard and quality of 'Kali Mirch' could not be tested.

His certificate no doubt is there. In regard to his analysis of the sample it is true that he states that 50 per cent of the sample consists of empty shells of pepper but it is clear that there was no adulteration in the sense of the introduction of any foreign material in the pepper. Under Section 2(i)(a) the article sold must be proved not only not to be of the nature, substance or quality demanded by the purchaser but it has also to be proved to be to his prejudice or must be proved to be not of the nature, substance or quality which it purports or is represented to be. There is no evidence that this admixture of empty shells of pepper could have any injurious effect when consumed. It is said that the Food Inspector asked for good pepper and that the pepper supplied was not good pepper.

There is no evidence to show what is considered to be good pepper. Pepper may be good though it may not be best quality pepper. Moreover, the goodness of the pepper would have to be co-related to the price which was demanded for it. The accused in his statement has stated that there is another type of pepper which is sold at Rs. 2/- a seer. The pepper which he sold was sold at Rs. 1/8 per seer. In our view, therefore before it could be said that Bhagwan Dass did not sell pepper which ans4 wered to the description of 'good' some evidence was necessary in order to establish what was considered to be good pepper in the market and what the price of the good pepper in the market was. In the absence of any fixed standards we are at best left merely with the opinion of Sri B. C. Dass, Food Inspector, that this pepper was not good pepper, We think, therefore, that it cannot be said that it is established in this case beyond doubt that the article sold was not of the nature, substance or quality demanded by the purchaser or was to his) prejudice or was not of the nature, substance or quality which it purported or was represented to be Merely because the pepper had broken grains does not in our view establish that it was not of the quality which was capable of being described as good pepper.

It is to be noted that Sri B. C. Dass in his cross-examination has admitted that at the time when he made the purchase he had no suspicion that what was offered to him was not of the quality demanded. In all these circumstances we are of the view that it cannot be said beyond reasonable doubt that adulterated food within the meaning of Section 2(i)(a) of Act 37 of 1954 was sold by Bhagwan Dass.

16. In view of what we have said in regard to the merits of the matter it is not necessary to discuss a further point which was raised on behalf of Bhagwan Dass. We may, however, mention that the contention was raised on his behalf that the Food Inspector who took the sample was not appointed under the Prevention of Food Adulteration Act, 1954. It was contended that since he was ap-pointed by a notification under the rules and regulations framed under the U. P. Pure Food Act, 1950 (U. P. Act No. XXXII of 1950) that appointment under the said Act ended with the coming into force of the Prevention of Food Adulteration Act, 1954 (Act 37 of 1954) and that he was also not a person empowered to take a sample from Bhagwan Dass under the powers given to Food Inspectors under Act No. XXXVII of 1954. This contention, as indicated, need not be considered.

17. Accordingly we dismiss the applicationfor leave to appeal against the order of acquittalpassed by the learned Sessions Judge.


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