DHARMU Vs. ZALAM

JUDGEMENT

(1.) THIS is an application for grant of special leave to file an appeal under Section 417 (3 ). Cr. P. C. against an order of acquittal by the Magistrate First Class, Mandi. The complainant-applicant had alleged that on 22nd August, 1969 at about 9 a. m. the accused Zalam Sineh and certain other persons entered the house of the complainant and demolished the house and carried away some utensils, pans, a plough, and other implements of husbandry. It appears that the complainant was not sure of the number of persons who had taken part in such an occurrence, so that he included persons who had to be discharged. Even with regard to the five opposite parties, against whom charges under Sections 441/ 380 and 147, I, P. C. were preferred, the learned Magistrate did not frame any charge at all under Sections 451/380 I. P. C. as he thought that the evidence did not justify any such charges. The only charge framed against the five opposite parties was one under Section 147. I. P. C. After having examined the evidence carefully, the learned Magistrate came to the conclusion that there has been considerable litigation between the complainant and the opposite parties in a Civil Court. It also appeared that there was an injunction against the complainant prohibiting him from entering the land on which the alleged house stands. There is no doubt that the complainant applicant had admitted that he was residing in another house, which he had constructed about 20 or 25 years ago. His own witnesses admitted that they came to the spot after the occurrence. It was not quite clear from the judgment whether the injunction was in respect of the disputed house or with regard to some other house in which the applicant had been living. Nevertheless, it is clear that, so far as any occurrence for which a charge under Section 147 could be made out the prosecution witnesses admitted that they came to the spot, where the incident is said to have taken place, after the occurrence was over. Thus, the learned Magistrate had rightly acquitted the opposite parties. This, however, would not prevent the complainant from bringing in a civil suit against persons who could be shown to have taken away or to be in possession of any of his properties as a result of the alleged occurrence, if it took place at all.

(2.) WE have examined the merits of the case, as there was some uncertainty whether an application under Section 417 (4 ). Cr. P. C. would lie after the period of 60 days provided for such an application by Section 417 (3 ). Cr. P. C. The relevant provisions may be reproduced:

(3.) THE contention on behalf of the opposite parties is that applying the ratio decided of Kaushalva Rani v. Gopal Singh It was clear that Section 5. Limitation Act does not apply at all to applications under Section 417 (3 ). Cr. P. C. in view of the clear language of the Section 417 (4 ). Cr. P. C. as this was "special law" providing for a special period of limitation. It was also pointed out that Section 417 (4 ). Cr. P, C. expressly prohibits entertainment of an application under Section 417 (3 ). for grant of special leave after the expiry of 60 days.