MITTOOR MOIDEEN HAJEE Vs. EDEKKATTU CHEKKUTTI HAJI

JUDGEMENT

(1.) These appeals came before one of us for admission; and notice was issued to the Public Prosecutor solely on the question whether they could be admitted or whether they were out of time. The point arises primarily, because the convictions and the sentences were passed under Ordinance 1 of 1922, a special enactment. The time provided for appealing under that Ordinance is only 15 days. Judgment was given in each of these appeals on the 31 March. The presentation in this Court was in Appeal 325, on the 24 April and in Appeal No. 342 on the 28 April. It is clear that this presentation was out of time, unless the appellants were entitled at least to an allowance for the period requisite for obtaining copies of the judgments appealed against. Such a deduction would of course be admissible in any appeal against a conviction under the ordinary law with reference to Section 12 of the Limitation Act. This Court has however recently held in Lingayya V/s. Chinna Narayana (1917) I.L.R. 41 Mad. 169 : 33 M.L.J. 566 (F.B.), that Section 12 cannot be applied in the case of appeals under a special law, such as the Ordinance we have to deal with.

(2.) The point however calls for no further consideration since the passing of Act X of 1922, which became law on the 5 March 1922 and provided that Secs.4, 9 to 18 and 22 of the Indian Limitation Act should be applicable to proceedings under any special or local law, in so far as and to the extent to which they are not expressly excluded by such law. It may be said at once that there is nothing in the Ordinance expressly excluding this provision. The appellants are therefore entitled to credit for the time they spent in obtaining copies ; and that is, as Mr. Kurup on their behalf agrees, from the date of judgment, 31-3-22, to the date, on which copies were given to their Vakil, 2-4-22.

(3.) That deduction however made, the presentation on the 24 and 28 April was still beyond the 15 days allowed by the Ordinance. Mr. Kurup has accordingly conceded that there is delay in the presentation of Appeal No. 325 and has urged that the delay should be excused by this Court. The difficulty is that Section 5 of the Limitation Act, under which the court can excuse delay is not one of the provisions, the application of which is extended by Act X of 1922 to proceedings under a special or local law. We therefore have no right to utilise Section 5 in dealing with these appeals, Next it has been argued that we have power to excuse the delay under Section 423(i)(a), Criminal Procedure Code, because an order excusing the delay would be consequential or incidental order and would be just or proper in their disposal. We are unable to take that view of the nature of such order. It is not consequential. We must then consider whether it is incidental and, if so, incidental to what? Section 423 begins "The appellate Court shall then send for the record of the case, if such record is not already in court ; " and it has to be presumed that any power conferred by Section 423 can be used only after the stage, at which Section 423 becomes applicable to the proceedings, has been reached. That is clearly indicated by the use of the word "then". The application of Section 423 must, we think, be taken as legitimate, only after the preliminary stage indicated in Sections 421 and 422 has been passed. That is after the appeal has been admitted and after the notice referred to in the latter section has been given. It is true that notice has been given in this case to the Public Prosecutor but (as was stated distinctly in the order directing it) it was given only for the special purpose of enabling him to appear to take part in the proceedings authorized by Section 421 at which the question of admission and the question whether there should be further proceedings, with respect to which Section 423 applied, are considered. We do not think that Section 423 confers on us any power, the exercise of which can help these appellants. We must therefore dismiss Appeal No. 325 as out of time.