ALARAKSHI BIBI Vs. UJALA BIBI

JUDGEMENT

(1.) PLAINTIFF No. 1 is the mother of defendant No. 7 and plaintiffs Nos. 2 and 3. The suit was in respect of rayati holding No. 6 measuring 19. 98 acres of land in village ischhapali. It is unnecessary to give the details of the respective claim of the parties as the second appeal is confined to the question of limitation. The suit was for declaration of title and recovery of possession. There was a proceeding Under section 145 Cr. P. C. in respect of the disputed lands. Plaintiffs Nos. 2, 3 and defendant No. 7 constituted the first party. Admittedly plaintiffs Nos. 2 and 3 were minors then. Deceased Gaffur Khan, the husband of defendant No. 1 and father of defendants Nos. 2 and 3, defendants 4 and 5 and deceased Khasaran Bibi were members of the second party. The proceeding was disposed of in favour of the second party on 7-6-52. There was a subsequent proceeding Under Section 145 cr. P. C. which confirmed the previous order on 12-3-1958. As nothing turns out on the order of the Section 145 proceeding, details of that case need not be given. Defendants 1 to 6 took the plea that they had title and possession thereof. A further plea was taken that the suit was barred by limitation under Article 47 of the Limitation Act.

(2.) THE trial Court decreed the plaintiffs' suit in the following terms:

(3.) PLAINTIFF No. 2's case may be first taken up. Admittedly he was a minor when the proceeding Under Section 145, Cr. P. C. was instituted. That proceeding terminated on 7-6-1952. Plaintiff No. 2 attained majority in 1954. The suit was filed on 14-4-1958. Under Article 47 of the Limitation Act the period of limitation is three years from the date of the final order in the case in respect of a suit filed by any person bound by an order respecting the possession of immoveable property made under the Code of Criminal Procedure, 1898. Section 6 of the Limitation Act prescribes that when a person entitled to institute a suit is a minor at the time from which the period of limitation is to be reckoned, he may institute the suit within the same period after the disability has ceased. Section 8, however, lays down the limit that nothing in Section 6 shall be deemed to extend, for more than three years from the cessation of the disability, the period within which any suit must be instituted. Thus reading Sections 6 and 8 and Article 47 of the Limitation act together, the position emerges that the suit by plaintiff No. 2 is barred by limitation. Mr. Rahenoma does not dispute this position. It is, however, contended that though plaintiff No. 2 was in fact a party to the proceeding under Section 145, Cr. P. C. , he being a minor and not being represented by a guardian, the proceeding was a nullity against him and that he was not bound by this order. This argument requires careful consideration. The learned Advocates for both sides stated that they were unable to find a single decision throwing light on the question as to whether a minor is to be represented by a guardian in a proceeding under Section 145 Cr. P. C. The absence of authorities on the point requires close examination of the relevant sections and the scheme of the Criminal Procedure Code. Sections 118, 198, 199, 345 (4) and 514b are the only sections in the Criminal Procedure Code which refer to acts which cannot be performed by a minor or a person below 18 years of age. The relevant portions of these sections may be extracted. Section 118. Order to give security--If, upon such enquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties the Magistrate shall make an order accordingly: x x x x x thirdly, that when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties. Section 198. No Court shall take cognizance of an offence falling under Chap. XIX of the Indian Penal Code or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence. Provided that, where the person, so aggrieved is a woman who, according to the customs and manners of the Country, ought not to be compelled to appear in public or where such person, is under the age of eighteen years. . . . . . some other person may, with the leave of the Court, make a complaint on his or her behalf. Section 199. No court shall take cognizance of an offence under Section 497 or section 498 of the Indian Penal Code, except upon a complaint made by the husband of the woman, or in his absence, made with the leave of the Court by some person who had care of such woman in his behalf at the time when such offence was committed. Provided, that, where such husband is under the age of eighteen years. . . . . . . . some other person may, with the leave of the Court, make a complaint on his behalf. Section 345 (4 ). When the person who would otherwise be competent to compound an offence under this Section is under the age of eighteen years. . . . . . . . any person competent to contract on his behalf may with the permission of the court compound such offence. Section 514b. When the person required by any court or officer to execute a bond is a minor, such Court or officer may accept, in lieu thereof, a bond executed by a surety or sureties only. In the Civil Procedure Code, Order XXXII makes clear provision for representation of minors. There is no corresponding general provision in the Criminal Procedure code. It is only in the aforesaid five sections the statute prescribes that a person below eighteen years suffers from disability and cannot perform particular acts. The Code also does not prescribe in any of these sections that a minor would be represented by a guardian. The intention rather is that certain persons is those sections would act on behalf of the minor. In essence, this is some form for representation. The absence of general provisions for representation of minors in the Criminal Procedure Code and the reference to other persons acting for the minors in some sections lead to the irresistible conclusion that the legislature did not intend that the minor should be represented through a guardian in any proceedings other than those referred to in the aforesaid sections. As the law stands, a minor need not be represented by a guardian in a proceeding under section 145, Cr. P. C. Section 199, Cr. P. C. was amended by Central Act 18 of 1923 introducing the first proviso. Prior to that the condition