1. The first point raised in this petition is whether the Lower Appellate Court had jurisdiction to admit a criminal appeal which was out of time, that Court itself finding that the appellant had not shown convincing reasons for not presenting it in time. The provision of law applicable is Section 5 of the Indian Limitation Act, and under that provision the Court cannot extend the time unless it is satisfied that the appellant had sufficient cause for not preferring the appeal in time. The Lower Appellate Court was not so satisfied and therefore had no authority to extend the period and admit the appeal. Its proper procedure would have been to move this Court to exercise its powers of revision.
2. As to whether we should now interfere and reverse the acquittal, it is a question of whether there has been any gross miscarriage of justice which ought to be remedied. I cannot hold that there is any such question. The appellant had been convicted of theft for removing earth from a village site, said to belong to the Zamindar of South Vallur Estate. The village site is an open vacant place, used as a latrine, not very obviously in the physical possession of any one. To say that the site belongs to the Zamindar as village site is not the same thing as saying that the earth in it is all his private perquisite, which he can dispose of for his own private profit. The intention to cause wrongful loss to the Zamindar, or the contention that wrongful loss has been in fact caused to the Zamindar, has not been clearly made out. The matter is more of a civil nature than criminal.
3. I would therefore refuse to interfere and dismiss this petition.
Madhavan Nair, J.
4. I agree that this petition should be dismissed. I would like to add that, in view of Section 5 of the Limitation Act, it cannot be contended that the Appellate Magistrate has no power to excuse the delay and admit the time-barred criminal appeal. A criminal appeal filed after the expiry of the prescribed period of limitation may be admitted if the Court is satisfied that the appellant had sufficient reason for not preferring the appeal within the period of limitation [see Surta Singh v. The Crown ILR (1920) Lah 508 and Rahman v. The Crown (1923) 5 LLJ 477]. In the case before us the Lower Appellate Court was not satisfied from the appellant's affidavit that there was sufficient reason to excuse the delay. It had, therefore, no power to extend the period and admit the appeal. As pointed out by my learned brother, its proper procedure would have been to move this Court to exercise its powers of revision.