1. The point that arises for determination is whether when there is a delay beyond' 60 days in preferring under Section 417 (4), CrIPC an application for granting special leave to appeal the provisions of Section 5 of the Limitation Act will apply. Section 29 (2) of the Limitation Act runs as follows:
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 to 18, and S- 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.
This question has been the subject-matter of a decision in this Court by Basheer Ahmed Sayeed J. and in two decisions of the Andhra Pradesb High Court by Umamaheswaram J- and a Bench of that Court composed of the learned Chief Justice and Basi Reddy J.
2. Basheer Ahmed Sayeed J. in In re Viswanathan Chefctair : AIR1957Mad300 , held that Section 5of the Limitation Act would apply to applications of this nature on the ground that only where there is difference between the period prescribed by the Limitation Act and' the period prescribed by the special law, Section 29 (2) would be applicable and S- 5 would not be available, and that in the case of special leave against acquittal the schedule to the Limitation Act not prescribing any period and thereby no difference between the period prescribed by the schedule and the period prescribed by the special law, Section 29 (2) of the Limitation Act would not be applicable. Therefore, ho held that Section 5 can be applied.
3. I do not wish to express my disagreement with this view, but we are on stronger ground on the basis of which this application of Section 5 has been rested by the Andhra Pradesh High Court. In Venkata Subbareddi v. Duwuru Papireddi (S) A.I.R. 1957 Andh Pra 406 (B), Umamaheswaram J, held that the Criminal Procedure Code is a general law relating to procedure and not a special law within the meaning of Section 29 of the Limitation Act. As Section 5 of the Limitation Act applies to appeals, it equally applies to all applications for leave to appeal whether provided' under Schedule 1 of the Limitation Act or not. It is only in respect of applications other than applications for leave to appeal or for review of judgment that the terms of Section 5 should be specially made applicable. Hence the terms of Section 5 are applicable to applications for special leave under the new Section 417 (4) Cri. P, O. It is permissible to adopt a beneficent construction of a rule of limitation if alternative constructions are possible. For this purpose Public Prosecutor v. K. M. Vedantam : AIR1952Mad183 was relied on.
4. This decision of Umamaheswaram J. has been followed by the Bench of the Andhra Pradesh High Court composed of Subba Rao C.J. and Basi Reddy J. in In re Parchuri Ada-seshamma 1958 1 Andh WR 75 : A.I.R. 1958 Andh Pra 230 (D). The Bench also held that the Code of Criminal Procedure is not a special law but is a general law relating to procedure, and that therefore Section 5 of the Limitation Act applies to, an application for special leave made after the period prescribed by sub-s. 4 of Section 417, CrIPC' a side that the High Court, in an appropriate case, extend that period.
5. Therefore, there are no impediments in] granting leave to appeal, provided there are (merits in regard to the reasons put forward for, excusing the delay of 31 days in filing the appeal. I heard the learned Advocates on both sides and I find the affidavit filed by the applicant-Municipality in support of the application) shows sufficient reasons for excusing the delay. The application for excusing the delay is allowed and this appeal is directed to be taken on file and disposed of according to law.