KAUSHALYA RANI v. GOPAL SINGH
Citation: [1964] 4 S.C.R. 982; 1963 INSC 198
Court: Supreme Court of India
Bench: BHUVNESHWAR PRASAD SINHA , J.C. SHAH, N. RAJAGOPALA AYYANGAR
Judgment date:
Case summary
1963 INSC 198. Supreme Court of India judgment dated 1963-09-20. KAUSHALYA RANI v. GOPAL SINGH. Read the judgment and case details on LawSphereX.
Judgment text
982 SUPREME COURT REPORTS [1%4] KAUSHALYA RANI v. GOPAL SINGH (B. P. SINHA, C; J. , J. C. SHAH AND N. RAJAGOPALA AYYAN- GAR, JJ. ) Code of Criminal Procedure, s. 417(3), (4)-Accused acquitted by Additional Sessions Judge-/lpplication for special leave to appeal to High Court against acquittal filed after 60 days of order-Provisions of Limitation Act, s. 5, whether applicable-Spe-dal law-Limitation Act (9 of 1908) s. 29(2). The respondent was committed to the Court of Sessions to stan -section (5), 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.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (XXXV of 1946), the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal. (3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (4) No application under sub-section (3) for the grant of special leave to appeal from the order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.
(5) If, in any case, the application under sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1 ). " 83-2 s. c. India/64 It will appear that the section, which was recast by Act XXVI of 1955, for the first time made provision for an appeal by a private complainant from an order of acquittal, if he obtained special leave to appeal from the High Court. Previous to the Amending Act aforesaid, it was only the State Government which could come up in appeal from an order of acquittal. The section, thus, provides for an appeal by the State Government, as also by the complainant in a case instituted upon a complaint, provided that special leave of the Court is obtained. So far as appeal by the State Government is concerned, s. 417 itself does no~ provide for any period of limitation. The period of limitation for · such an appeal is laid down in Art. 157 of the Limitation Act.
Previous to the amend-ment of 1955, the period of limitation for such an appeal by the State Government was six months, which was reduced to three months by the Act XXVI of 1955 with effect from January 1, 1956. Hence, so far ·as ·an appeal by the State Government is concerned, the perii:ld of· limitation thus reduced is a part of the general law of limitation and is amenable to the operation of s. 5 of the Limitation Act. But the provisions of sub-s. (3) and (4) of s. 417 are in the nature of 'special provisions' introduced for the first time by the Amending Act XXVI of 1955. Sub-section ( 4), in terms, is very precise and mandatory, prohibiting the High Court from entertaining any application for special leave to appeal from an order of acquittal after the expiry of 60 days from the date of such an order.
On a perusal of the bare provisions of the section and the history of the law on the subject, two things are clear; namely, (1) that the legislature thought it expedient in the interest of justice and public policy that the period of six months allowed to the State Government to appeal from an order of acquittal should be curtailed by half, thus evincing its clear intention to cut short the dura-tion of the litigation which had already resulted in an order of acquittal; and (2) that in certain· cases the High Court should have the power of granting special leave to a complainant, as distinguished from the State Government, to come up in appeal from an order of acquittal, but at the same time indicating in clear and unambiguous : terms that such an application must be made within 60 . ' day;fr. ;;i die· da,te of the nrder of acquittal.
This rule of 60 days bar of time has been specifically pr9yided for in the section itself, 'μnlike the general ru1 f that kind of re- 64-2 S C India164 [1964] lationship. A 'special law', therefore, means a law enacted for special cases, in special circumstances, in contradis-tir:ction to the general rules of the law laid down, as applicable generally to all cases with which the general law ~eals. In that sense, the Code is a general law regulating the procedure for the trial of criminal cases, generally; but if it lays down any bar of time in respect of special cases in special circumstances like those contemplated by s. 417(3) & (4), read together, it will be a special law contained within the general law. As the Limitation Act has not defined 'special law', it is neither necessary nor expedient to attempt a definition.
Thus, the Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act; but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of limitation. For example, rules framed under Defence of India Act, vide S. M. Thakur v. The State of Bihar('); Canara Bank Ltd. v. The Warden Insurance Co. (') dealing with the special rule of limitation laid down in the Bombay Land Requisition Act (Bom. XXXIII of 1948). These are mere instances of special laws within the meaning of s. 29(2) of the Limitation Act. Once it is held that the special rule of limitation laid down in sub-s. ( 4) of s. 417 of the Code is a 'special law' of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the conclusion that s. 5 of the Limitation Act is wholly out of the way, in view of s. 29(2) (b) of the Limitation Act.
But the question is whether it can be said that even though- the provisions of s. 417(4) are a 'special law', they prescribe a different period of limitation from that prescribed by the First Schedule of the Limitation Act, because s. 29(2) applies where there is a difference between the period prescribed by the Limitation Act and that prescribed by the special law. It is said that the Limitation Act does not prescribe any period of limitation for an application for special leave to appeal from an order of acquittal at the instance of a private prosecutor. In the first instance, the Limitation Act, Art. 157, has pres. cribed the rule of limitation { ) I. L. R. 30 Pat. 126. ( ) I. LR. [1952] Born. 1083. in respect of appeals against acquittal at the instance of the State. Hence, it may be said that there is no limitation prescribed by the Limitation Act for an appeal against an order of acquittal at the instance of a private prosecutor.
Thus, there is a difference between the Limitation Act and the rnle laid down in s. 417(4) of the code in respect of limitation affecting such an application. Section 29(2) is supplemental in its character in so far as it provides for the application of s. 3 to such cases as would not come within its purview but for this provision. And for the purposes of determining any period of limitation prescribed by any special law, it has made the provisious of the Limitation Act, referred in cl. (a) of sub-section (2) of section 29 applicable to such cases to the extent to which they are not expressly excluded by such special or local law, and cl. (b) of that sub-section expressly lays it down that the remaining provisions of the Limitation Act shall not apply to cases governed by any special or local law. In our opinion, therefore, the provi~ions of the Code, supplemented by the provisions of s. 29(2) of the Limitation Act, make it dear that s.
5 of the Limitation Act would not apply to an application for special leave to appeal under s. 417(3) of the Code. That is our conclusion based on the interpretation of the statutes in question. But the High Courts of Allahabad, Andhra Pradesh and Madras have taken the contrary view. On the other hand, earlier decisions of the Allahabad High Court and the Bombay High Court, to be presently noticed, have taken the view that what we have indicated is the correct view of the legal position. A Division Bench of the Allahabad High Court, in the case of Mohammad Ibrahim v. Gopi Lal (1) had taken the view that the words of sub. s. (4) of s. 417 make it clear that the application under sub. s. (3) must be made within 60 days of the order of acquittal, and that the High Court had no power to extend the period of limitation, and s. 5 of the Limitation Act did not apply to such cases. They based their conclusion entirely on the wording of sub. ss. (3) and ( 4) of s. 417 of the Code.
That Bench decision of the Allahabad High Court was overrnled by a Full Bench of that Court in Rajjan Lei v. State('). The three Hon'ble Judges con- (1) A. LR. (1958 All 691). ( ) I. L. R. [1960) 2 All. 761. stituting the full bench, in separate but concurring judg-ments, took the view that the Code was not a local or a special law and that s. 5 of the Limitation Act was applicable to an application under s. 417(3) of the Code. In the Andhra Pradesh High Court a Division Bench was of the same opinion as had been held by the Full Bench of the Allahabad High Court, but the decision was obiter because the Court dismissed the petition on the ground that the order of acquittal had been passed before the Amending Act XXVI of 1955 came into force, so that the order of acquittal was not amenable to an appeal at the instance of the private prosecutor. A Single Judge of the Andhra Pradesh High Court took the view that s. 5 was applicable to applications for special leave under s. 417(4). .
In the Madras High Court, a Single Judge decided the case of Viswanathan Chettiar. in re (1) and held that "section 1, sub-section (2) of the Criminal Procedure Code makes all laws applicable to Criminal Procedure Code including the Law of Limitation and nothing could prevent the appellant from taking advantage of section 5 of the Limitation Act. " He also held that there was no difference between the period prescribed by the law of limitation and the Criminal Procedure Code. Both these observations do· not appear to be correct. Another Single Judge of the Madras High Court decided in the case of Coimbatore Municipality v. K. L. 2 Narayanan( ) that s. 5 of the Limitation Act could be availed of by the private prosecutor, but the learned Judge did not base his decision on the reasoning of the previom judgment of that Court but preferred to follow the reasoning adopted by the Andhra Pradesh High Court in P. V. 3 Subbareddi v. D. Papireddi( ) and in re Parchuri Adeshamma(').
In our opinion, the view taken by the Full Bench of the Bombay High Court in the case of Anjanabai v. Yeshwantrao Daulatrao Dudhe(°) is the correct one. In that case it wai held that the provisiom of s. 417(4) were a 'special law' within the meaning of s. 29(2) of the Limitation Act. In that case, the High Court has dealt with the decisions of the different High Courts on the question and with the reason-ings for those decisions. As we agree with the conclusions of the High Court of Bombay, we do not think it necessary to repeat the observations made therein, bearing on the reasons given by the High Courts of Albhaba<l, Andhra Pradesh and Madras for coming to contrary conclusions. (1) (1957) 1 M. L. ). 150. 2 ( ) A. LR. [1958] Mad. 416. 3 ( ) A. LR. [1957] And. Pra. 406. 4 ( ) A. LR. [1958] An<l. Pra. 230. (5) I. LR. [1961] Born. 135. For the reasons given above, we hold that the view taken by the High Court of Punjab is entirely correct. The appeal is accordingly dismissed.
Appelll dismismJ. AFZAL ULLAH "· THE STATE OF UTTAR PRADESH (P. B. GAJENDRAGADKAR, K. SuBBA RAO, K. N. WAN"cHoo, J. C. SHAH AND RAGHTJBAR DAYAL, JJ. ) U•ited Provinces Municipalities Act, 1916 (No. II of 1916), ss. 298. 299(1) and bye-law cl. 3(a)--.! 'Markd' meaning of- 1-V! tether bye-lau1 ultra vires. The appellant-accused was charged \Vith committing the off~nu under s. 299(1) of the United Provinces Municipalities Act, read with cl. 3(a) of the relevant bye-laws framed by Respondent No. 2. The case against the appellant was that he was running a n1arket \Vithin the municipal area in which Yegetables, fruit•, fish and grains were sold. It was alleged that he was bound to take a licence for the aforesaid market under cl. 3(a) of the rdevant bye-laws and since he had failed to do so, he had committed • breach of the said bye-laws. He was tried by the Tchsildar of Tanda on the said charge. The Tehsildar acquitted him.
The Tehsildar held that he was running only a grain market and Respondent No. 2 (the Municipality) had no power to make bye-laws for the running of a purely grain market and so the in1pugned bye~ laws were ultrQ vireJ', On appeal, the High Court set a~ide- the order of acquittal and com·icted the appellant under s. 299( I) of the Act read with cl. 3(a) of the relevant byo-laws, It has ~ 65-2 S C lndia/64
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