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Balakrishnan Nambiar Vs. Gopalan Nambiar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberCriminal Misc. Petn. No. 277 of 1959
Judge
Reported inAIR1961Ker48; 1961CriLJ263a
ActsLimitation Act, 1908 - Sections 3, 5 and 29(2); Code of Criminal Procedure (CrPC) - Sections 417(4)
AppellantBalakrishnan Nambiar
RespondentGopalan Nambiar
Appellant Advocate V. Bhaskaran Nambiar, Adv.
Respondent AdvocatePublic Prosecutor
DispositionPetition allowed
Cases ReferredLucknow v. Bhagwan Das
Excerpt:
limitation - interpretation - section 5 of limitation act, 1908 and section 417 (4) of criminal procedure code, 1898 - applicability of section 5 to special leave appeal under section 417 - held, section 5 applicable to special leave appeal. - - in our judgment, the first condition being not satisfied, there is no need to consider the second. include a case where a period of limitation is prescribed by any general statute like the civil procedure code. 5. thus, on a construction of the relevant statutory provisions as well as on the weight of authority, we feel no hesitation in coming to the conclusion that section 5 of the act is applicable to applications for special leave to appeal under section 417(4), crl......law prescribes 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 section 4, sections 9 - 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'. the effect of this provision is, that where a special or local law prescribes a period of limitation different from that prescribed by the first schedule in the act, section 5 cannot apply so as to extend the.....
Judgment:
ORDER

S. Velu Pillai, J.

1. Crl. M. P. 271 of 1959 is an application under Section 417(3), Crl. P. C. for special leave to appeal from an order of acquittal, and there having been a delay of two days in making it, Crl. M. P. 277 of 1959 was filed under Section 5 of the Indian Limitation Act, or shortly the Act, to condone the delay. The latter has been referred to a Division Bench for decision, raising the question : 'Whether Section 5 of the Act can apply to an application under Section 417(3)'.

2. Section 417(4), Crl. P. C. provides 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 that order of acquittal'.

The material part of Section 5 of the Act may also be quoted below :

'Any appeal or application ........ for leaveto appeal or any other application to which this section may be made applicable ...... may beadmitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period'.

Thus, Section 5 applies in terms, to an application for leave to appeal, and on comparing it with Section 3 of the Act, it is clear, that it is not restricted in its application, as Section 3 is, to the period's of limitation prescribed by the First Schedule of the Act, but can apply to periods prescribed by other enactments. There is nothing in the express language of Section 417(4), Crl. P. C. to exclude the operation of Section 5 of the Act. Section 29(2)(a) of the Act which has some relevancy may also be quoted :

Section 29(2): 'Where any special or local law prescribes 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 Section 4, Sections 9 - 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'.

The effect of this provision is, that where a special or local law prescribes a period of limitation different from that prescribed by the First Schedule in the Act, Section 5 cannot apply so as to extend the former period. But, as the learned counsel for the petitioner has contended, the two conditions which must co-exist in order to attract Section 29, are, that the period of limitation must be prescribed by a special or local law, and that such period must be different from that under the Act.

Obviously, the 'Criminal Procedure Code is not a local law; it is not a special law either, as it constitutes the general law of procedure in criminal cases, in the same way as the Civil Procedure Codehas been held by a Full Bench of the Madras High Court in Kandaswami Pillai v. Kannappa Chetty, AIR 1952 Mad 186 to constitute the general law of procedure in civil cases. The second condition was found against by Basheer Ahmed Sayeed J. in In re, Viswanathan Chettiar, AIR 1957 Mad 300 when a similar question arose before him; but Rama-swami J. in Coimbatore Municipality v. Narayanan, AIR 1958 Mad 416, preferred to exclude the operation of Section 29(2) of the Act, on the other ground. In our judgment, the first condition being not satisfied, there is no need to consider the second.

3. It may now be considered, whether Section 417(4), Criminal' P. C. at least impliedly, if not expressly, excludes the operation of Section 5 of the Act. A cursory reading of Section 417(4), Crl. P. C. may perhaps suggest, that no application for special leave to appeal can ever be entertained, after the expiry of sixty days from the date of the order of acquittal. So too, the language of Section 48 of the Civil Procedure Code appears to exclude the operation of the provisions of the Act extending the period of limitation, because it enacts that

'No order for the execution of the same decree shall he made upon any fresh application prescribed after the expiration of 12 years'

from the dates specified therein; but the Full Bench of the Madras High Court in the case cited, has held, that the Civil Procedure Code and the Limitation Act

'are statutes relating to procedure and they are in pari materia, and therefore to be taken and construed together as one system as explanatory of each other'

and that accordingly

'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.'

By parity of reasoning, the term 'prescribed' in Section 5 of the Act has to be similarly interpreted, with reference to Section 417(4) of the Criminal Procedure Code, and this view was adopted by Umamaheshwaram J. in Venkata Subbareddi v. D. Papireddi, (S) AIR 1957 Andh Pra 406, in order to hold, that Section 5 of the Act applies to Section 417(4), Crl. P. C. This case was followed by a Division Bench of the same court consisting of K. Subba Rao C. J. (as he then was) and Basi Reddy J. in In re, Parchuri Adeshamma, AIR 1958 Andh Pra 230.

The anomaly in holding that similar provisions' of the Act do not apply to an application under Section 417(4), has been illustrated) in (S) AIR 1957 Andh Pra 406, where Umamaheshwaram J. has posed the question as to what would happen if the period of sixty days expires on a day on which the court is closed; but for Section 4 of the Act, the application would have to be rejected. Similarly, without the application of Section 12(2) of the Act, the time taken for obtaining a copy of the order, which in a given case, may exceed sixty days, would not be excluded from computation.

4. The only decision which has taken a contrary view, to which our attention was drawn in Mahammad Ibrahim v. Gopi Lah AIR 1958 All 691,in which the learned Judges seemed to think, that the words of Section 417(4) were by themselves sufficient to exclude the operation of Section 5 of the Act, but they did not consider the ambit of Section 5, as applicable also to applications for leave to appeal, or the scope of Section 29(2) of the Act as not excluding the operation of Section 5. In Municipal) Board, Lucknow v. Bhagwan Das, AIR 1959 All 500, decided by a Division Bench of the same Court, it was observed that the view taken earlier may require further consideration.

5. Thus, on a construction of the relevant statutory provisions as well as on the weight of authority, we feel no hesitation in coming to the conclusion that Section 5 of the Act is applicable to applications for special leave to appeal under Section 417(4), Crl. P. C. In his affidavit, the petitioner has explained, that he could not come to Emakulam on the due date for making the application, for what appears to us to be a valid reason, and had entrusted the papers to his brother, who however, was held up in connection with a litigation in the Taliparamba Munsiff's Court, in which he was concerned, and readied Ernakulam late.

We consider, that the delay may be condoned.Crl. M. P. No. 277 of 1959 is therefore granted. Wedirect that Cri. M. P. 271 of 1959 will be postedin due course.


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