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Parsano Vs. Hazara Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Misc. No. 719 of 1967
Judge
Reported inAIR1968P& H352; 1968CriLJ1119
ActsLimitation Act, 1963 - Sections 5 and 29; Code of Criminal Procedure (CrPC) - Sections 5, 29(2) and 417(3)
AppellantParsano
RespondentHazara Singh
Appellant Advocate H.S. Gujral, Adv.
Respondent Advocate D.N. Rampal, Asst. Adv.-General,; J.L. Gupta and; R.L. S
DispositionPetition dismissed
Cases Referred and Kaushalya Rani v. Gopal Singh
Excerpt:
.....right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders..........even to applications under local and special laws including petition under section 417 (3) of the code of criminal procedure. he has referred to the affidavit of his client, smt. parsano wherein she has sworn that he had obtained a copy of the trial courts judgment on 22nd february (march) 1967. she misplaced the copy and was labouring under a wrong impression that the said copy was in the brief of the lawyer. when she had to start for chandigarh on 1stmay 1967, she detected the mistake and continued to search for the said copy. eventually, it was found in the papers of her husband, surjan singh, mixed up with the papers regarding their son, gian singh. it was found out on the morning of 16th may, 1967, whereafter the papers were completed to file the appeal.4. we are inclined to agree.....
Judgment:

Sarkaria, J.

1. This is a petition under Section 417 (8) or the Code of Criminal Procedure for grant of special leave to appeal from an order dated 28th February, 1967, of the Additional Sessions Judge, Amritsar, acquitting the respondent of the charges under Section 406, Indian Penal Code. Notice of this petition was issued to the respondent under order, dated 16th August, 1967 by Gurdev Singh and Jindra Lal, JJ.

2. The first objection taken by the respondent to this petition is that it is time-barred. He first argued that the provisions of Section 29 of the Limitation Act do not empower this Government to extend limitation and condone the delay by the application of Section 5 of the Act. In support of his contention, Mr. Jawahar Lal Gupta has cited Koshalya Rani v. Gopal Singh, AIR 1963 Punj 145 and Kaushalya Rani v. Gopal Singh, AIR 1964 SC 260. In the alternative, he contends that even if Section 5 of the Act is applicable, then also no sufficient cause has been shown as to why the petitioner delayed the making of this petition for fourteen days after the expiry of the limitation.

3. In reply, Mr. Harbans Singh Gujral, learned counsel for the petitioner, contends that these rulings of the Punjab and the Supreme Court were given under the old Limitation Act of 1908, which has since been repealed and under Section 29 of the new Limitation Act of 1963, the provisions of Section 5 are applicable even to applications under local and special laws including petition under Section 417 (3) of the Code of Criminal Procedure. He has referred to the affidavit of his client, Smt. Parsano wherein she has sworn that he had obtained a copy of the trial Courts judgment on 22nd February (March) 1967. She misplaced the copy and was labouring under a wrong impression that the said copy was in the brief of the lawyer. When she had to start for Chandigarh on 1stMay 1967, she detected the mistake and continued to search for the said copy. Eventually, it was found in the papers of her husband, Surjan Singh, mixed up with the papers regarding their son, Gian Singh. It was found out on the morning of 16th May, 1967, whereafter the papers were completed to file the appeal.

4. We are inclined to agree with Mr. Gujral that Section 5 of the Limitation Act, 1963, now would apply to applications made under Section 417 (3) of the Code of Criminal Procedure. Sub-section (2) of the new Section 29 reads as follows:--

'29(2). 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.'

This sub-section is based on the maxim generalia specialibus non derogant (the general does not derogate from the special). Sub-section (2) accordingly provides mat where a special or local law prescribes for any application, etc., a period different from the period prescribed therefor by the Schedule, the provisions of the Limitation Act will not apply except to the extent expressly specified in this section. Now the first question, therefore, that falls for determination is whether the Code of Criminal Procedure prescribes for an application under Section 417 (3) a period of Limitation 'different from the period prescribed by the Schedule' to the Limitation Act. This would cover two types of cases: firstly, it may expressly modify or alter the period mentioned in the Schedule to the Limitation Act. Secondly, it contemplates those cases in which the Schedule omits laying down any period of limitation, but the special or local law provides a period.

In the present case, the Limitation Act does not prescribe any period of limitation for a petition under Section 417 (3) of the Code of Criminal Procedure. But the Code, which is a special law does provide a period of sixty days' limitation within which such a petition is required to be made. To that extent, the special law is different from the Limitation Act. Further, there is nothing in the Code of Criminal Procedure which expressly excludes the application of Section 5 of the Limitation Act to such petitions for leave to appeal. Under the above-quoted Sub-section (2) of Section 29, therefore, a petitioner can claim the indulgence of Section 5 of the Limitation Act and get the delay condoned by satisfying the Court that he or she had sufficient cause for not making the petition within the prescribed period of sixty days.

In the instant case, the impugned order of acquittal was made on 28th February, 1967. The petition was made on 17th May, 1967. It first came before the Division Bench on 16thAugust, 1967. The affidavit of the complainant accompanying the application for condonation of the delay is vague and general. It is well settled that a cause for delay, which by due care and attention a party could have avoided, cannot be sufficient cause. Ordinarily, the test for determining whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention. The mere impression of the petitioner that the copy of the trial Court's judgment was lying in the brief of the case, when it was actually lying elsewhere, is not a 'sufficient cause'. At best, it shows remissness and negligence on her part. The provisions of Section 5 cannot be used to put a premium on avoidable delay and laxity on the part of litigants. Moreover, the petitioner was bound togive satisfactory explanation of each day's delay beyond the period of limitation. No such explanation is coming forth. The petition under Section 417 (3) of the Code of Criminal Procedure, therefore, deserves dismissal on the score of limitation alone.

5. On merits also, we find no force in this petition. We have gone through the judgment of the Courts below. The complainant-petitioner's case was that she had entrusted a huge Sum of Rs. 14,200/- along with certain ornaments weighing 151/2 tolas to Hazara Singh respondent on the understanding that he would return the amount and the ornaments at once, whenever demanded. The whole affair was oral. It took place in village Dabipur Kartar Singh Sarpanch, Karam Singh Panch of village Dabipur, Kartar Singh Lambardar and Sadha Singh Panch of another village were cited as witnesses by the complainant. Kartar Singh Sarpanch and Karam Singh Panch of Dabipur were not examined. Only Kartar Singh Lambardar and Sahda Singh of village Mastgarh were examined.

The learned Additional Sessions Judge has given cogent reasons for not accepting the ipse dixit of me complainant and her witnesses. The learned Additional Sessions Judge has observed that firstly it was very improbable that the complainant would entrust such a big amount to the respondent without getting any document executed. Secondly, there was no occasion for the entrustment because the brother-in-laws and son of the complainant were living in the same village, with whom she had good relations. There was no necessity or reason for making this entrustment to the respondent. It was said that there was some recital in a mortgage deed in the possession of one Surjan Singh about this entrustment. This mortgage deed was never tendered in evidence. Taking into account all the circumstances the learned Additional Sessions Judge concluded that the case was not free from doubt. By no stretch of imagination, it can be said that the reasons advanced by the learned Additional Sessions Judge are manifestly untenable or erroneous.

6. In the light of the above discussion, we have no hesitation in dismissing this petition.

7. Bedi, J.

I agree.


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