RAMANI BEWA Vs. BANSIDHAR NAIK AND TWO ORS.

JUDGEMENT

(1.) THIS is an appeal from the judgment passed by the Magistrate, 3rd Class, Jaipur acquitting the Respondent under Section 323 of the Indian Penal Code in Criminal case No. 663/1955/50T of 1956.

(2.) A preliminary objection was taken on behalf of the Respondents that the application for grant of special leave to appeal from the order of acquittal having been made after the expiry of sixty days from the date of the order of acquittal as fixed by Section 417(4) of the Code of Criminal Procedure, the said application for leave was out of time and hence the appeal is not maintainable. Admittedly sixty days had expired from the date of the order of acquittal. The relevant dates are that on 20th November, 1956 the Respondents were acquitted by an order of the Magistrate, On January 21, 1957 the Appellant filed a petition before this Court for special leave to appeal under Section 417 of the Code of Criminal Procedure The Appellant on the other hand relied on the fact that she was entitled to exclusion of the time requisite for obtaining the certified copy of the order appealed from under Section 12 of the Limitation Act. The certified copy of the order of acquittal was obtained by the Appellant on November 23, 1956. Therefore, if the period of limitation is computed from November 23, 1956 when the certified copy of the order was obtained, the Appellant was within time in filing her petition for special leave to appeal on January 21, 1957.

(3.) WHILE discussing Section 29(2) of the Indian Limitation Act, the Andhra Pradesh High Court, relying on an earlier Madras decision in Kandaswami Pillai v. Kannappa Chetty : A.I.R. 1952 Mad 186 (F.B.) on a question whether the Code of Civil Procedure is a special law within the meaning of Section 29 of the limitation Act where it was held that the Code of Civil Procedure is not a special law but is a general law relating to procedure, held that the Code of Criminal Procedure is not a special law so as to fall within the terms of Section 29 of the limitation Act and, therefore, Section 29 has no application. The Andhra Pradesh High Court also considered whether Section 417(4) of the Code of Criminal Procedure excluded the application of the provisions of Section 5 of the Limitation Act and held that the provisions of Section 5 would apply to an application for special leave under Section 417(4) Code of Criminal Procedure In paragraph 8 of the judgment the High Court specifically referred to Section 12 of the Limitation Act. Following the reasoning given in the said decision of the Andhra Pradesh High Court, agree with the view that the provisions of Section 12 of the Limitation Act shall apply to applications for special leave under Section 417(4) of the Code of Criminal Procedure As observed in a Full Bench decision of the Madras High Court reported in Kundaswami Pillai v. Kannappa Chetty : A.I.R. 1952 Mad 186 (F.B.). It is permissible to adopt a beneficent construction of a rule of limitation if alternative constructions are possible. This view as to the construction of Section 417(4) of the Code of Criminal Procedure was also followed by the Andhra Pradesh High Court in the latest decision in In Re. Parckuri Adeshmma : A.I.R. 1958 AP 230, where it was held that the Code of Criminal Procedure is Dot a special law but a general law relating to procedure and, therefore, Section 5 of the Limitation Act applied to the application for special leave made after the period prescribed by Section 417(4) of the Code of Criminal Procedure and that the High Court can, in an appropriate case, extend that period. Following these decisions my finding is that the Appellant is entitled to the benefit of Section 12 of the limitation Act and the period required for obtaining the certified copy of the order of acquittal must be allowed. In that view of the matter, the preliminary objection taken on behalf of the Respondents fails.