Skip to content


The State of U.P. Vs. Hori Lal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1973CriLJ9
AppellantThe State of U.P.
RespondentHori Lal
Excerpt:
- - it provides that normally every petition of appeal or application for revision or other application in a criminal matter shall be presented in court but makes provision for exceptional circumstances where it may not be possible for the party concerned to do so......or the application for review received under sub-rule (1) be put up for order on the next working day before the court or before himself if he be authorised to deal with it.' since rule 1 of chapter xviii part iii itself envisages presentation of appeals before the registrar, if permitted by the rules, there evidently can be no inconsistency between the two rules. rule 11 of chapter xi of part ii can be made applicable to proceedings under part iii by reason of rule 38 of chapter viii part i without any adaptations or modifications. these two rules provide a complete answer to the questions referred to this bench by brother jag mohan lal sinha.11. our answer to both the questions is in the affirmative.12. our opinion will be laid before jag mohan lal sinha j, at an early date.
Judgment:

Yashoda Nandan, J.

1. This appeal by the State has been preferred against a judgment and order dated 14th November 1968, of a learned Magistrate First Class discharging the respondent Hori Lai for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act. Since the order was passed after a charge had been framed, it amounted to an acquittal and hence the appeal. The appeal was presented before the Registrar presumably after Court hours on the 20th February 1969, which was the last day of limitation. When the appeal came up for hearing before Jag Mohan Lal Sinha J. a preliminary objection was raised on behalf of the respondent that the appeal not having been presented before the Court, its presentation was improper and was consequently not maintainable. In support of this objection, reliance was placed on a decision of our brother S. Malik dismissing Government Appeal No. 2025 of 1968 State of U.P. v. Amrik Singh connected with Government Appeals Nos. 2026, 2027, 2028, 2029 and 2033 of 1968. The appeals dismissed by S. Malik. J. had been presented before the Registrar at his residence at 7.10 P.M. after Court hours on the 11th September. 1968. which was riot the last day of limitation. It was also not a day on which the Court was not sitting. In these circumstances, a preliminary objection was raised that the presentation of the appeals was illegal and they were consequently liable to be dismissed. S. Malik. J. held that the appeals not having been presented in accordance with Rule 1 of Chapter XVIII part III of the Rules of Court, they were liable to be dismissed as barred by time. Brother Jag Mohan Lal Sinha was not inclined to accept the contention that Rule 1 of Chapter XVIII Part III of the Rules of Court was exhaustive on the subject of presentation of criminal appeals. Being of the view that the decision on the preliminary objection raised was likely to affect a large number of appeals pending in this Court and that the point involved is one of considerable importance, he referred to a larger Bench for an authoritative decision the following questions:

1. Whether in view of the provisions contained in Rule 38 of Chapter VIII and Rule 11 of Chapter XI, a criminal appeal can be validly presented before the Registrar during court hours on any working day on which the judges do not sit?

2. Whether in view of the aforesaid provisions a criminal appeal can be validly presented before the Registrar on the last date of limitation beyond court hours if the appellant or his counsel was unable to present it in Court?' We shall now proceed to consider the questions posed.

2. In exercise of the powers conferred on it by Article 225 of the Constitution, this Court has framed Rules which according to Rule 2 thereof may be cited as 'Rules of Court 1952' hereinafter referred to as the 'Rules.' According to Rule 2 the Rules shall apply to proceedings and matters in the High Court commenced on or subsequent to the fifteenth September, 1952 and so far as may be also to proceedings and matters pending on that date Since the appeal before us was preferred after the 15th September 1952. It is governed by the Rules.

3. The 'Rules' consist of VIII Parts and XLI Chapters in all. Part 1 of the 'Rules' contains provisions of general application as would appear from the title given to it. It consists of VIII Chapters. Part II consists of Chapters IX to XVI and is entitled 'Civil Jurisdiction.' The Rules contained in this part, as the title thereof indicates, are applicable specifically to matters of a civil nature. Part III bears the general heading 'Criminal Jurisdiction' and consists of Chapters XVII to XX, An examination of the Rules contained in this part reveals that they are applicable exclusively to matters of a criminal nature Rule 1 of Chapter XVIII Part III is in the following terms:

Every petition of appeal or application for revision of other application in a criminal matter shall be presented in Court except where it may under these Rules or by order of the Court or the Chief Justice be filed before the Registrar or any other officer of the Court.

4. A party aggrieved by a judgment or order has a right to invoke the appellate or revisional jurisdiction of this Court, as the case might be by presenting a petition of appeal or application for revision any time till the midnight of the last date of limitation. On certain working days the Court does not sit. Moreover the sitting of the Court is confined to certain hours on every working day. It is not possible for the Court to curtail the period of limitation available to a party under the law of limitation merely because the Judges do not sit in Court on certain working days and the working hours of the Court are fixed. If it were incumbent for a party desirous of appealing to this Court or of filing an application for revision, to; present the petition of appeal or revision before the Court situations are bound to arise when the concerned party would be prevented from exercising the right even though the period of limitation has not expired. On Saturdays for instance though it is a working day Judges do not sit in Court. An appeal or revision consequently cannot be presented in Court. A similar difficulty would arise where the limitation for filing an appeal or revision expires on a working day but the party desirous of filing the appeal or revision or his counsel has not been able for some reason to complete the petition of appeal or revision before the Court rises for the day. Rule 1 to a certain extent makes provision for such exigencies. It provides that normally every petition of appeal or application for revision or other application in a criminal matter shall be presented in Court but makes provision for exceptional circumstances where it may not be possible for the party concerned to do so. It lays down that petitions of appeal or applications for revision or other application in criminal matters may also be presented before the Registrar or any other officer of the Court provided such presentation is sanctioned by the Rules or there is an order by the Court or of the learned Chief-justice in his administrative capacity to that effect. The Rule however, does not offer a solution to all the problems that might arise and we agree with Jag Mohan Lal Sinha, J. that it is not exhaustive.

5. An appeal or revision of which limitation expires on a Saturday cannot be presented, for example, on that day before the Registrar by an order of the Court because the Judges are not sitting on that day in Court. If there is no rule empowering the Registrar or any other officer of the Court to entertain an appeal on a Saturday, in such a situation the party concerned will have to approach the Chief Justice for an order authorising the presentation of the petition of appeal or application for revision or other application in original matters contemplated by the Rules before the Registrar. The learned Chief Justice cannot be expected to be available at his residence all the twenty four hours. Moreover, the number of petitions in which limitation might be expiring on a particular Saturday may be extraordinarily large and if in every such case a special order has to be obtained from the Chief Justice authorising its acceptance by the Registrar or any other officer of the Court, it would entail considerable inconvenience not only to the Chief Justice but also to the party concerned. Similar difficulties would arise where limitation for filing an appeal or revision expires on a working day but the petition of appeal or revision could not be completed before the Court has risen for the day. The framers of the Rules were not unconscious of such difficulties and have as will presently appear made ample provision to obviate them

6. An examination of Rule 1 reveals that it itself postulates the existence of a rule providing for acceptance or petitions of appeals or applications for revision or other applications in criminal matters by the Registrar in specified cases The use of the words 'where it may under these Rules.be filed before the Registrar or any other officer of the Court' would be meaningless unless there exists a rule permitting presentation of appeals before the Registrar or any other officer of the Court in given conditions.

7. We shall now proceed to consider the question as to whether there are any rules providing for presentation of appeals or application for revision or other applications in criminal matters before the Registrar or any other officer of the Court in the circumstances contemplated by the questions posed. As already stated the Rules contained in Part I are of general application and apply to all proceedings before this Court civil or criminal. On the other hand Rules in Part III apply exclusively to proceedings in the criminal jurisdiction of this Court. The Rules in Part IV apply to proceedings for enforcement of fundamental rights as is indicated by the title of that part. Similarly the Rules contained in Part V are applicable exclusively to appeals to the Supreme Court of India. Rules contained in Part VII apply exclusively to special proceedings before this Court, namely proceedings under the Income Tax Act. Indian Companies Act, Chartered Accountants Act, Trade Marks Act, the Copyright Act etc.

8. Rule 38 of Chapter VIII part I is as follows:

38 (1) Where any Rule contained in Parts III IV V or VII is inconsistent with any Rule in any other Part the former shall prevail and the latter shall, to the extent of such inconsistency, be deemed to have been modified or repealed so far as the former is concerned.

(2) Subject to the provisions of Sub-rule (1) the Rules contained in part II shall, so far as may be and with necessary modifications and adaptations, also apply to proceedings under the said parts.

Sub-rule (1) of Rule 38 merely gives statutory recognition to the maxim 'generalia specialibus non derogant', i.e. general provisions will not abrogate the special provisions. It provides that if there is a rule in existence dealing with a particular situation in Parts III, IV, V or VII and it is inconsistent with any rule dealing with the same situation in any other part of the Rules, the rules contained in parts III, IV, V or VII as the case may be. shall prevail and apply to proceedings under those parts in preference to the rule contained in any other part. It provides that in respect of proceedings under Parts III IV, V or VII, as might be the case, to the extent of such inconsistency as might exist, the Rules in any other part shall be deemed to have been modified or repealed as may be required in the peculiar circumstances of the case. Sub-rule (2) of Rule 38 lays down that if there is a Rule in Parts III, IV, V or VII dealing with a particular situation and there is also a Rule applicable to a similar situation to be found in Part II and there is inconsistency in the two rules, the rule contained in Parts III, IV, V and VIL as the case maybe, shall prevail aver the Rule in part II in its application to proceedings under those parts. This sub-rule further provides that if there is no inconsistency between a rule in part It and the rules in parts III IV V or the rule in part II shall with necessary modifications and adaptations supplement the rules in Parts III, IV, V or VII.

9. This leads to an enquiry as to whether there is in Part II of the rules any rule which with necessary modifications and adaptations may be applicable to proceedings under Part III enabling the presentation of an appeal or memorandum of revision before the Registrar during Court hours on working day on which the Judges do not sit in Court and on the 1st day of limitation beyond court hours if the appellant or his counsel was unable to present it in Court.

10. We are in complete agreement with Jag Mohan Lal Sinha J, that Rule 11 of Chapter XI Part II is applicable by reason of Rule 38 of Chapter VIII Part I to proceedings under Part III and provides for presentation of criminal appeals before the Registrar in the contingencies mentioned in the questions referred to this Bench. Rule 11 of Chapter XI Part II as amended upto date is in the following terms:

11 (1) On any working day on which Judges are not sitting a memorandum of appeal or objections or an application for revision or review may be presented before the Registrar during Court hours. On the last day of limitation the Registrar may receive a memorandum of appeal or objections or an application for revision or review even after Court hours where the appellant or applicant was unable to present it in Court.

Provided that the Registrar may not receive such memorandum or application if it is not in order.

(2) The Registrar shall direct that the memorandum of appeal or objections or the application for review received under Sub-rule (1) be put up for order on the next working day before the Court or before himself if he be authorised to deal with it.' Since Rule 1 of Chapter XVIII part III itself envisages presentation of appeals before the Registrar, if permitted by the rules, there evidently can be no inconsistency between the two rules. Rule 11 of Chapter XI of part II can be made applicable to proceedings under Part III by reason of Rule 38 of Chapter VIII part I without any adaptations or modifications. These two rules provide a complete answer to the questions referred to this Bench by brother Jag Mohan Lal Sinha.

11. Our answer to both the questions is in the affirmative.

12. Our opinion will be laid before Jag Mohan Lal Sinha J, at an early date.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //