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State Vs. Pyare Lal Nehru - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 25 of 1975 and Criminal Miscellaneous Appeal No. 32 of 1975
Judge
Reported in1976CriLJ81; 1975RLR474
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 378
AppellantState
RespondentPyare Lal Nehru
Advocates: Charanjit Talwar and; S.N. Chowdri, Advs
Excerpt:
the case examined the limitation for appeal in regard with those cases which were not instituted upon a complaint - it was held that such appeals were governed by the provisions of limitation act, 1963 and the period of limitation for such appeals was 90 days from the date of the order on appeal. - .....378 of the new code also permits the complainant in a case instituted upon complaint to apply for special leave to appeal from an order of acquittal passed in such a case and on the special leave to appeal being granted to present an appeal to the high court. under article 114 [b] of the schedule to the limitation act the limitation for presenting the appeal is thirty days from the grant of special leave. (7) under sub-section [4] of section 417 of the old code an application by the complainant for grant of special leave to appeal could not be entertained after the expiry of sixty days from the date of the order of acquittal. in sub-section [5] of section 378 of the new code the period after which an application for grant of special leave to appeal cannot be entertained has been.....
Judgment:

Jagitt Singh, J.

(1) Pyare Lal Nehru and Satya Narain Gupta were committed to the Court of Session, on charges under sections 408, 467, 471 and 477-A read with section 34 of the Indian Penal Code, and trial against them was commenced by an Additional Sessions Judge. During the trial Satya Narain Gupta died. After trying Pyare Lal Nehru be was acquitted of all the charges on August 27, 1974. From the order of acquittal an appeal was presented in this Court on behalf of State. On December 17, 1974, along with an application under section 378[3] of the Code of Criminal Procedure, 1973 [hereinafter referred to as 'the New Code'] for the appeal being entertained. The said application was allowed on January 22, 1975 and the leave asked for was granted.

(2) On March 25, 1975 Pyare Lal Nehru, the respondent in the appeal, submitted a petition for revoking the order by which leave to appeal was granted. It was stated in the petition that the application under sub-section [3] of section 378 of the New Code was filed beyond limitation so the leave granted by the Court on January 22, 1975 may be withdrawn. [In paras 3 & 4, S. 378 of New Code and S. 417 of Old Code are reproduced].

(3) The contention raised by the learned counsel for the respondent is that sub-section [1] of section 378 of the New Code being subject to the provisions of sub-sections [3] and [5] of that section and as sub-section [5] provides a limitation of sixty days in every case other than a case where the complainant is a public servant, so the application under sub-section [3] could not be entertained after the expiry of sixty days computed from the date of the order of acquittal. It was further urged that the words ''in every other case', as appearing in sub-section [5] of section 378, even cover cases not instituted upon complaint. As the application under sub-section [3] of section 378 was made, excluding the time requisite for obtaining a copy of the order of acquittal, on the eighty ninth day it was stated to have been presented after the limitation had expired.

(4) Admittedly the order of acquittal from which the present appeal was filed was not passed in a case instituted upon complaint. The case out of which the appeal arises was taken cognizance of on a police report.

(5) It would be noticed that subject to the provisions of sub-sections [3] and [5] of section 378 of the New Code, under sub-section [1] of that section the State Government may, in any case, direct the public prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court. Sub-section [3], inter alia, provides that no appeal under sub- section [1] shall be entertained except with the leave of the High Court. Thus when in any case an appeal is presented under sub-section [1] of section 378 from an order of acquittal then with the appeal an application for leave has also to be submitted. It is only on leave being granted under sub-section [3] that the appeal presented under sub-section [1] is regarded to have been entertained. Further as under article ll4 [a] of the Schedule to the Limitation Act, 1963 the limitation for an appeal from an order of acquittal under sub- section [1] of section 417 of the Old Code (corresponding to sub-section [1] of section 378 of the New Code) is ninety days from the date of the order appealed against, so to be within limitation an appeal under sub-section [1] of section 378 of the New Code has to be presented with an application for leave in not more than ninety days from the date of the order appealed from. Of course in computing the period of ninety days the day from which the period is to be reckoned and the time requisite for obtaining a copy of the order appealed from have to be excluded, as provided by section 12 of the Limitation Act.

(6) SUB-SECTION [4] of section 378 of the New Code also permits the complainant in a case instituted upon complaint to apply for special leave to appeal from an order of acquittal passed in such a case and on the special leave to appeal being granted to present an appeal to the High Court. Under article 114 [b] of the Schedule to the Limitation Act the limitation for presenting the appeal is thirty days from the grant of special leave.

(7) Under sub-section [4] of section 417 of the Old Code an application by the complainant for grant of special leave to appeal could not be entertained after the expiry of sixty days from the date of the order of acquittal. In sub-section [5] of section 378 of the New Code the period after which an application for grant of special leave to appeal cannot be entertained has been specified to be six months where the complainant applying for special leave to appeal is a public servant and sixty days in every other case, computed from the date of the order of acquittal. The words 'in every other case' also refer to cases instituted upon complaint but in which the complainant applying for special leave to appeal is not a public servant. In other words sub section [5] of section 378 of the New Code provides separate periods for the entertainment of applications for special leave to appeal in cases instituted upon complaint, when the complainant so applying is a public servant and where the complainant making the application is not a public servant. If the complainant is a public servant the period is six months and for a complainant applying for grant of special leave to appeal in every other case the period is sixty days.

(8) We do not agree that the words 'in every other case', as used in sub section (5) of section 378 of the New Code, even cover cases not instituted upon complaint. Sub-sections (4) and (.5) of section 378 have to be read together and these are confined in their application to cases instituted upon complaint and in which application for grant of special leave to appeal is made by the complainants The period of six months or sixty days referred to in sub-section (5) of section 372 has no relevance to an application under sub-section [3] of that section. For an application under sub section [3] of section 378 no period was necessary to be prescribed as the object of such an application is that the ap'eal presented under sub-section [1] of section 378 may be entertained. For presenting an appeal under sub section [I] the limitation is ninety days from the date of the order appealed from vide Article 114[a] of the Limitation Act.

(9) It is true that sub-section [1] of section 378 of the New Code is also subject to to the provisions of sub-section [5] of that section. As stated earlier sub-section [5] prescribes the periods after the expiry of which an application under sub section [4] made by a complainant, for grant of special leave to appeal, is not to be entertained. Further sub section [6] provides that if in any case the application under sub-section [4] is refused no appeal from that order of acquittal shall lie under sub-section [I]. It follows that on an appeal under sub-section [l] of section 378 which has not arisen from a case instituted upon complaint sub-section [5] will have no effect. The effect of sub section [5] on an appeal under sub-section [1] of section 378 which has arisen from a case instituted upon complaint need not be considered in the present case

(10) The appeal in the present case, which was under sub-section [1] of section 378 of the New Code,was presented within the period of, limitation of ninety days along with an application under sub-section [3] of section 378. On leave being granted the appeal came to be duly entertained.

(11) The contention that the application under sub-section [3] of section 378 of the New Code could not be entertained after sixty days computed from the date of the order of acquittal is not supported by the plain language of that section. The provision that after the expiry of sixty days period an application by a complainant other than a public servant for grant of special leave to appeal in a case instituted on complaint cannot be entertained does not apply to an application under sub section [3] of section 378. There is a clear distinction between an application by a complainant in cases instituted on complaint for grant of special leave to appeal under sub section [4] and an application for leave under sub-section [3].

(12) The appeal in the present case having been presented under sub-section [1] of section 378 of the New Code and sub-section [1] being subject to the provisions of sub-section [3] of that section, an application for leave was also submitted under sub-section [3] with the appeal. For presenting the appeal the limitation was ninety days. The appeal and the accompanying application under sub-section [3] of section 378 of the New Code having been presented within ninety days from the date of the order appealed from the objections raised on behalf of the respondent are not legally tenable. The petition of the respondent challenging the validity of the order granting leave to appeal and entertainment of the appeal is, thereforee, dismissed.


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