STATE OF U P Vs. BHURA

JUDGEMENT

(1.) The State has moved this application under S.378 of the Cr.P.C. on Ist Jan. 1983 for leave to appeal against the order of acquittal passed on 24th June 82. The Stamp Reporter has reported that the application as well as appeal were within time up to 22nd Sept. 82 and are thus beyond time by 101 days. The learned counsel for the State has made a two-fold submission. His first contention is that the application and appeal are within time because the appeal arises out of a case instituted upon a complaint by a public servant, so the period of limitation prescribed, is six months and thus the appeal is within time. His second submission is that in case the period of limitation is taken to be sixty days then the delay is explained by the affidavit filed in support of the application under S.5 of Limitation Act and the same should be condoned.

(2.) The application for leave to appeal as well as the memorandum of appeal have been filed on 1st June 1983 when the court reopened after the winter vacations. It would, therefore, be just in time in case the period of limitation is taken to be six months. The key question which arises for determination, therefore, is whether the order of acquittal has been passed in a case instituted upon complaint by a public servant.

(3.) The respondents in the instant case have been prosecuted under S.3 of the Railway Property (Unlawful Possession) Act 1966 on the basis of complaint Exh. Ka. 17 lodged by Sri Mana Singh S.I., R.P.F., Manipur. It has been contended by the learned counsel for the State that in view of the nature of the provisions of Railway Property Unlawful Possession Act 1966, cases instituted thereunder are not on a police report but on a complaint by a public servant attracting S.378(5) Cr.P.C. and as such the period of limitation is six months. It would be fruitful at this stage to reproduce sub-sec.(5) of S.378 Cr.P.C. It reads as below :-