NAGAR PALIKA RAE BARELI Vs. JANKI

JUDGEMENT

(1.) NAGAR Palika Rae Bareli filed an appeal against an order of Sub-Divisional Magistrate Dalmau, Rae Bareli, dated September 21, 1972, on the basis of which he had acquitted the respondent and had dismissed the complaint under Section 247 of the Code of Criminal Procedure. A complaint was moved by NAGAR Palika Rae Bareli, through the Executive Officer, NAGAR Palika Rae Bareli in the court of the Magistrate on March 21, 1972, with a prayer that the respondent may be charged under Sections 186, 211 and 307 of the U. P. Municipalities Act. Three persons were mentioned in the complaint as witnesses, Ram Krishna Srivastava Overseer Ashraf Khan Safai Hawaldar and Engineer Incharge Rohtak and Hissar Company Rae Bareli. A notice, dated July 16. 1971, was also mentioned as documentary evidence. The Magistrate took cognizance of this complaint and summoned the accused for April 24, 1972. The accused moved an application on June 9, 1972, with a prayer that he may be given another date for appearance as he was medically unfit. He filed a medical certificate in that behalf. The exemption was allowed till July 12, 1972. On July 12, 1972 again the accused moved for exemption and prayed for another date for appearance on the ground of illness which was backed by certificate. The Magistrate gave twenty days to the accused. On August 9, 1972 again the accused respondend moved an application that he may be permitted to appear on August 30, 1972 and this prayer was allowed. On August 30, 1972 an application was moved by Krishanpal Singh, Land Management Clerk, that he had been authorised to appear for NAGAR Palika. The Magistrate ordered that a copy of the authority letter should be placed on record. It appears that the next date fixed for appearance of the accused was September 6, 1972, the case having been transferred to the court of Sub-Divisional Magistrate, Dalmau. On this date the NAGAR Palika was represented by a counsel. Some arguments were heard and the case was fixed for September 18, 1972 for orders. On September 18, 1972 the counsel for the NAGAR Palika as well as the Pairokar were present so was the accused. September 21, 1972 was fixed for orders, On this date the learned Magistrate passed the impugned order primarily on the ground that since the complainant was absent on the earlier date, the complaint had to be dismissed and the accused had to be acquitted. A preliminary objection was taken up before me by the learned counsel appearing for the respondent that the present appeal was barred by limitation and that the learned judge who had condoned the delay had no jurisdiction to condone the delay inasmuch as provisions of Sections 5, 14 and 15 of the Limitation Act did not apply to this special provision contained in the Code of Criminal Procedure wherein such an application for leave to appeal has to be moved within sixty days. I think this preliminary objection is untenable. The Indian Limitation Act was amended in 1963 and Section 29 sub section (2) was enacted as follows : "(2) Where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed by the Schedule the provision" of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law." Previously before amendment Section 29, clause (2) (a) and (b) read as follows: "(2) 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 Section 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." It is, therefore, clear that previous to this amendment Section 5 was excluded from application to a period of limitation that was prescribed to a special or local law for moving an application. The change in law was noticed by the Supreme Court in the case of Vidyacharan Shukla v. Khubchand Baghel and Others (AIR 1964 SC 1099.), The Majority view discussed at page 1111 was that : "This observation clearly supports the proposition that section 29 (2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for a limitation to a particular proceeding under the Limitation Act." I, therefore hold that in the instant case the Act provides a period of limitation different from that prescribed theirfor bv the First Schedule to the Limitation Act and, therefore, it is governed by Section 29(2) of the said Act : Even if my view on the construction of the first limb of Section 29 of the Limitation Act were wrong it would not help the appellant, for this case squarely falls within the scope of the second limb of the section. For convenience f restate the relevant part of the section : ...and for the purpose of determining any period of Limitation prescribed for any cuit appeal or application by any special or local law." Similarly in another case of Lain Ram v. Hari Ram (AIR 1970 SC 1093.2), the Supreme Court holds note of the case Kawhalya Rani v. Gopal Singh(AIR 1964 SG 260.), as well as the Full Bench decision of the Bom. High Court reported in Anjanhai v. Yash wantrao (AIR 1961 Bom. 154), then observed at page 1094 : "It is quite clear that the Full Bench of the Bombay High Court and this Court proceeded on the assumption that Section 417(4) of the Criminal Procedure Code prescribes a period of limitation. The learned counsel, however, contends that there was no discussion of this aspect. Be that as it may seem to us that Section 417(4) itself prescribes a period of limitation for an application to be made under Section 417(3). It was not necessary for the legislature to have amended the Limitation Act and to have inserted an article dealing with applications under Section 417 (3), Criminal Procedure Code it was open to it to prescribe a period of limitation in the Code itself." The learned counsel also suggests that the word "entertain" which occurs in Section 417 (4) means to deal with or hear and in this connection he relies on the judgment of this court in Lakshmi Rattan Engineering Works v. Asstt. Commissioner Sales Tax (AIR 1968 SC 488) It seems to us that in this context "entertain" means filed or received by the court and it has no reference to the actual hearing of the application for leave to appeal otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put for hearing before the High Court within 60 days of the order of acquittal In the result we hold that the application under Section 417 (3) to the High Court was within time. In fact the legislature was conscious of the fact that previous to 1963 the provisions of Section 5 were excluded from their application to special law or local Act where a specific limitation was provided. That is why when amendment in 1963 of the Limitation Act was a specific provision was made in sub-section (2) applying provisions of Sections 4 to 24 both inclusive to applications of the present nature. There can, therefore, be no doubt that after this amendment made in the Indian Limitation Act, it was open to this Court to take help of Sections 5, 14 and 15 of the Indian Limitation Act to condone delay. The learned counsel urged before me that it was not proper on the part of the learned Judge to have condoned the delay specially behind the back of the respondent and that is the instant case delay should not have been condoned. I am not impressed by these arguments. It is true that a discretion has to be exercised judicially while condoning the delay but then once a discretion has been exercised and it was open to the learned Judge to exercise such a discretion which vested in him by virtue of application of Sections 5, 14 and 15 of the Indian Limitation Act to the present case, it is too late a stage to argue that such a discretion was not properly exercised specially when no prejudice can be said to have been caused to the respondent who can argue the matter on merits. His rights to argue on merits of the case are not jeopardised. In fact if the doors had been shut vis-a-vis the appellant substantial injustice would have been caused in case he can show that this appeal was good on facts and law: That being so I do not find any force in this preliminary objection and reject the same. Coming to the second question of correctness or otherwise of the orders passed by the trial court, it is significant to note that the trial court noticed absence of the complainant on earlier dates and that was not proper. Once the complainant was exempted from appearance on earlier dates it could be implied that by implication that the Magistrate had condoned personal attenance of the complainant. It was not proper in these circumstances for the Magistrate to harp back upon the absence of the complainant for the purposes of dismissing the complaint. I am supported in this view by an observation of this Court reported in Vishwanath v. State (1969 AWR 417.), Coming to the other point there is a Bench decision of this Court reported in Bhagwati Sahai v. Smt. Bina Jha (1964 AWR 699), Wherein it was clearly mentioned that dismissal of complaint and acquittal of accused merely on ground of non-appearance of complainant would defeat the very ends of justice. I have also in two decisions given in Criminal Appeal Nos. 318 of 1973 and 317 of 1973 on facts similar to the present one held that the order of the Magistrate was illegal and manifestly erroneous. That being so, 1 would quash the order of the Magistrate passed in this case on September 21, 1972 and remand the case to be tried afresh in accordance with law by a Magistrate other than the one who passed the above-mentioned order. File of the trial court must be transmitted to the trial court within one month from today positively so that the trial may proceed expeditiously. Case remanded.