STATE Vs. HARI SHANKAR

JUDGEMENT

(1.) THE following question has been referred to this Full Bench for its opinion by K. N. Srivastava arid Hari Swarup, JJ:

(2.) THE material facts giving rise to this-reference are that the respondent Hari Shankar was convicted under Section 125 (91 of the Defence of India Rules and sentenced to undergo six months' rigorous imprisonment by the City Magistrate, Bareill v. Hari Shankar appealed against his conviction and sentence. The learned Additional Sessions Judge, Bareilly, allowed the appeal and set aside the conviction and sentence of the respondent. The State Government did not apply for a certified copy of the judgment. The respondent, however, procured a certified copy of the appellate judgment by which his conviction and Sentence had been set aside. He submitted it to the Regional Food Controller. Lucknow, along with an application for restoration of his licence under the U. P. Foddgrains (Control. Requisition and Distribution) Order. 1963, which had been cancelled consequent on his conviction by the learned City Magistrate. The State Government preferred an appeal to this Court under Section 417. Criminal P. C. against the judgment of the court below. The requirements of Section 419, Criminal P. C. were complied with by the State Government by its filing along with the petition of appeal the certified copy of the judgment which had been obtained by Hari Shankar and submitted to the Regional Food Controller. After exclusion of the time taken by the respondent in obtaining the certified copy of the judgment of the learned Additional Sessions Judge, the appeal filed by the State Government was within time. The office reported that the appeal was within, limitation. It was consequently admitted to hearing. When the appeal was posted for hearing before K. N. Srivastava and Hari Swarup JJ. , an affidavit was filed by Hari Shankar stating that the State Government had not applied for a certified copy of the judgment appealed against at all and that the copy of the judgment accompanying the memorandum of appeal was the one obtained by him and sent to the Regional Food Controller in-support of his claim for restoration of his licence. No counter-affidavit denying the allegations made in Hari Shankar's affidavit was filed on behalf of the State. A preliminary objection was taken at the hearing of the appeal to the effect that it was barred by time on the date of its presentation, because the State was not entitled to exclusion of the time taken by Hari Shankar in obtaining the certified copy of the judgment appealed against. The preliminary objection was contested by the State and it appears to have been contended that for the application of Section 12 (2) of the Indian Limitation Act (hereinafter referred to as the Act), it was immaterial as to who had obtained the certified Copy of the impugned judgment and for what purpose it had been obtained. Reliance in support of the contention was placed by the State on the Division Bench decision of this Court in Ram Kishan Shastri v. Kashi Bai (1907) ILR 29 All 264 : 4 All LJ 152. The Division Bench before which the appeal by the State came UP for hearing appears to have been of the view that the decision in (1907) ILR 29 All 264 : 4 All LJ 152, (supra) has a bearing, on the preliminary objection with regard to the applicability. of Section 12 (2) of the Act to the facts of the present case and consequently was impelled' to refer the question quoted in an earlier part of this order to a Full Bench for its opinion.

(3.) BEFORE we proceed to consider the question referred to this Bench, we might state that the facts of Ram Kishan Shastri' case (1907) ILR 29 All 264 : 4 All LJ 152 (supra) were entirely different from those of the instant case and the decision has no application to it In Ram Kishan Shastri's case, the trial court passed a decree against the defendant, who left it to her counsel to obtain certified copies of the decree and judgment. The counsel in his turn left the matter in the hands of his clerk to apply for and obtain certified copies of the decree and the judgment. Kashi Bai presented an appeal before the lower appellate court, the memorandum of appeal being accompanied by the certified copies obtained by the clerk of her counsel. The appeal was within time if the time taken in obtaining the certified copies was taken into consideration. The lower appellate court in computing the limitation refused to take into account this time. It held that the appellant would have been entitled to the exclusion of time taken in preparing the copy of the decree only if it had been applied for either by herself or on her behalf by some recognised agent. Since the clerk of her counsel was not her recognised agent, the lower appellate court dismissed the appeal of Kashi Bai as barred by time. She appealed to this Court. Knox, J. allowed the appeal, set aside the decree of the court below and remanded the case with a direction to readmit the appeal to its original number of pending appeals. Aggrieved by the order of the learned single Judge, the plaintiff Ram Kishan appealed under Section 10 of the then Letters Patent of this Court. The Bench consisting of Stanley. C. J. and Burkitt. J. on an interpretation of Section 12 of the Limitation Act of 1877 held as follows: We think that it would be unduly restricting the language of Section 12 of the Limitation Act if we were to hold as did the lower court, that the application for a copy of the judgment must necessarily be by the appellant or somebody proved to have been acting in the matter as her agent. The appeal under the Letters Patent was dismissed. The certified copies filed along with the memorandum of appeal in Ram Kishan Shastri's case (1907) ILR 29 All 264 : 4 All LJ 152 (supra) had been obtained, though not on the basis of an application made by the party appealing or her duly authorised agent, but undoubtedly on an application by one who had implied authority to act on her behalf. The certified copies had been obtained for her benefit and she unquestionably had authority to utilise them. We are in the present case not concerned with the question as to whether the benefit of Section 1. 2 (2) of the Act can be availed of by a party only on the basis of certified copies applied for and obtained by himself or his duly authorised agent or also if applied for on his behalf and for his benefit by an implied agent. In the case before us, while the State was interested in impeaching the judgment of the court below. Hari Shankar's interest lay in no appeal being preferred against his acquittal. The interest of the respondent was manifestly adverse to that of the State. The respondent had property rights in the certified copy obtained by him and had submitted it to the Regional Food Controller only to establish that he had been found innocent; of the crime, which had led to the cancellation of his licence and was consequently entitled to its restoration. The certified copy submitted by him was in trust with the Regional Food Controller and Hari Shankar had not authorised either explicitly or impliedly the use of it by the State for the purpose, of filing an appeal Against him. The limited question which we are consequently called upon to answer in the present reference is as to whether the State is entitled to the exclusion of time spent in obtaining a copy of the judgment appealed against, by a party whose interest as far as the appeal is concerned is adverse to that of the State and who can in no sense be considered to have obtained it for the benefit of the State.