S. Raringsui Tangkhul v. S. Yangmaso — 1959 DIGILAW 19 (GAU)

JUDGMENT : - These are two appeals against the acquittals of the respective respondents in Criminal Case Nos. 92 and 93 of 1957. The respondents in Criminal Appeal No. 29 of 1961 are the Block Development Officer, Churachandpur and an A. S. I. of the Manipur Police, while the respondents in Criminal Appeal No. 30 of 1961 are the erstwhile S. D. O. of Churachandpur, a Police constable of the Manipur Police and a Lambu in the Office of the S. D. O., Ukhrul. In both the cases, the complaint is that the Officers concerned assaulted the appellants. Both the cases were private complaint cases and were being enquired into by the Additional District Magistrate Manipur and being adjourned to the same dates. The complainants also used to be present on all the adjourned dates of hearing, but it would appear that summonses in the two cases had not been issued to the accused till 18-3-1959. Both the cases were called on 18-3-1959 and summonses were ordered to be issued to the accused persons and the date of hearing was fixed for 13-4-1959. On that date, the appellants were absent and hence the Additional District Magistrate dismissed both the cases for default and want of prosecution by the complainants. As both the cases were summons cases such dismissals amounted to acquittals of the accused. The appellants however filed revision petitions under S. 435, Cri. P. C. before the Sessions Judge in both the cases. The said revision petitions were dismissed on the ground that they were incompetent in view of the fact that S. 417(3), Cri. P. C. provided for appeal in such cases and hence such revision petitions cannot be entertained. Thereupon the appellants filed applications under S. 417 (3), Cri. P. C. for leave to appeal in this Court and also filed applications under Section 5 of the Limitation Act to condone the delay in filing the applications. The delays were condoned subject to objection by the respondents at the time of hearing of the appeals. 2. When the appeals were taken up for hearing, the learned Government Advocate appearing for the respondents raised the preliminary objection that the appeals were barred by limitation. His argument was two-fold. First he contended that the appeals have been filed long after 60 days from the dates of acquittals, that under Section 417(4), Cri. 2. When the appeals were taken up for hearing, the learned Government Advocate appearing for the respondents raised the preliminary objection that the appeals were barred by limitation. His argument was two-fold. First he contended that the appeals have been filed long after 60 days from the dates of acquittals, that under Section 417(4), Cri. P. C. no application under S. 417(3) for the grant of special leave to appeal from an order of acquittal can be entertained by the High Court after the expiry of 60 days from the date of the said order and that in the case of such a special period of limitation fixed under Section 417(4), Cri. P. C., S. 5 of the Limitation Act will not apply and that the delay in filing the appeal cannot be condoned. His second argument was that even granting that S. 5 of the Limitation Act will apply, the reason given for the delay namely, that the appellants learned Advocate did not know of the special provision under S. 417(3) for appeal was not a proper reason at all, that there has been want of due care and attention on the part of the appellants. Advocate, that the delay which was due to the reason that the appellants filed a revision petition under S. 435, Cri. P. C. before the Sessions Judge should not therefore be excused under S. 5 of the Limitation Act, and on that ground also these appeals should be dismissed as time barred. 3. With regard to the question whether S. 5 of the Limitation Act would apply in the case of an application for leave to appeal under S. 417(3) Cri. P. C, I must hold against the learned Government Advocate. Section 5 of the Limitation Act which is quite general in its terms does not say that it will apply only to cases where the period of Limitation is fixed by the 1st Schedule of the Act. It provides that an application for leave to appeal may be admitted after the period of limitation prescribed therefor, when the applicant satisfies the Court that he had sufficient cause for not making the application within such period. 4. My attention was, however, drawn to Section 29(2) of the Limitation Act, which is as follows : "29. It provides that an application for leave to appeal may be admitted after the period of limitation prescribed therefor, when the applicant satisfies the Court that he had sufficient cause for not making the application within such period. 4. My attention was, however, drawn to Section 29(2) of the Limitation Act, which is as follows : "29. (1) x x x x (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 provision of S. 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. X X X X ". It was pointed out that the period of limitation for this application was prescribed by the special law, namely, S. 417(4), Cri. P. C. and that therefore as provided in S. 29(2)(a) and (b), S. 5 of the Limitation Act has not been made applicable in the case of such period of limitation fixed by a special law. I am unable to accept this argument. For S. 29(2) of the Limitation Act to apply, firstly, a period of limitation has to be prescribed for the application under a special law or local law and secondly, the said period of limitation must be different from the period prescribed therefor by the first schedule of the Limitation Act. It is only if both these conditions are satisfied that the provisions of Section 3 of the Limitation Act will apply as if such period were prescribed therefor in the said schedule. It is only then that for the purpose of determining the period of limitation prescribed for the application by the special law or local law, the provisions of Section 29 (2) (a) and (b) will be made applicable. 5. None of the conditions apply in the case of an application for leave to appeal under S. 417(3). It is only then that for the purpose of determining the period of limitation prescribed for the application by the special law or local law, the provisions of Section 29 (2) (a) and (b) will be made applicable. 5. None of the conditions apply in the case of an application for leave to appeal under S. 417(3). It cannot be said that the Criminal Procedure Code is a special or local law. It is certainly not a local law. But in the case of S. 417 (4) Cr. P. C., it was said to be a special provision of law fixing the period of limitation for this particular application. But it is not enough for the application of S. 29 (2) of the Limitation Act if there is a special provision of law fixing the period of limitation. What is required is that the period should be prescribed by a special law. For that purpose, the Criminal Procedure Code wherein the special provision of law, namely, S. 417 (4) occurs must itself be a special law. In no sense can the Criminal Procedure Code be called a special law. It is the general law which prescribes the procedure in Criminal Cases throughout India and it cannot be called a special law like for example, the Provincial Insolvency Act or similar enactments which deal with special subjects. It is not enough for Section 29 (2) to apply, if there is a special provision of law fixing the period of limitation in a general enactment like the Criminal Procedure Code. I am therefore unable to agree that there is a special law prescribing the period of limitation in the present case. 6. The second condition is also absent in out present case. There is no period of limitation prescribed in the Limitation Act for an application for leave to appeal under Section 417 (3) Cr. P. C., unless it is said that the residuary Article 181 which relates to applications for which no period of limitation is provided elsewhere in the said schedule is said to apply. The fact of the matter is that this right of appeal under S. 417 (3) Cr. P. C., unless it is said that the residuary Article 181 which relates to applications for which no period of limitation is provided elsewhere in the said schedule is said to apply. The fact of the matter is that this right of appeal under S. 417 (3) Cr. P. C. was only created very recently in the amendment of the Criminal Procedure Code in 1955 and an application for leave to appeal in such a case cannot have been thought of at the time when the Limitation Act was enacted and hence no provision fixing a period of limitation was prescribed in the Limitation Act. Hence when S. 417 (4) Cri. P. C. fixed a special period of limitation for such application, it cannot be said that the said period is different from the period provided therefor by the schedule of the Limitation Act. Thus, neither of the conditions under S. 29 (2) of the Limitation Act applies in the present case and hence S. 29 (2) cannot apply. 7. It is not necessary that Section 3 of the Limitation Act should apply at all in the present case. Section 3 provides that every suit, appeal or application made after the period of limitation prescribed therefor by the first schedule shall be dismissed although limitation has not been set up as a defence. Here, Section 417 (4) itself provides that no application under sub-section (3) shall be entertained after the period of limitation fixed thereunder. Thus, even without the application of Section 3 of the Limitation Act, there is a bar to receive the application after the period of limitation unless, of course, Section 5 of the Limitation Act applied to the case. It is interesting to notice that S. 5 of the Limitation Act is quite general in its terms. As in S. 3 and Section 29 (2) of the Limitation Act, Section 5 does not speak of the period of limitation prescribed therefor by the first schedule of the said Act, but only of the period of limitation prescribed therefor which will mean the period of limitation prescribed under any law whether it is the, Limitation Act or some other law. Only a restriction is placed by S. 29 (2) in the case of special or local law prescribing limitation where the period is different from the period prescribed under the first schedule of the Limitation Act. Only a restriction is placed by S. 29 (2) in the case of special or local law prescribing limitation where the period is different from the period prescribed under the first schedule of the Limitation Act. But as Section 29 (2) does not apply to our present case, S. 5 of the Limitation Act will certainly apply. 8. This view has been accepted in the following decisions of other High Courts. The Full Bench decision of the Allahabad High Court, Rajjan Lal v. State, AIR 1961 All 139 has held that S. 5 of the Limitation Act will apply. In doing so, the Allahabad High Court overruled an earlier decision of the same High Court, Mohammad Ibrahim v. Gopi Lal, AIR 1958 All 691 . All the 3 Judges forming the Full Bench have written separate concurring judgments dealing with this question in detail. The same view has been taken by the Andhra Pradesh High Court, Kerala High Court and Madras High Court in the following decisions : 1. P. Venkata Subbareddi v. D. Papireddi, (S) AIR 1957 Andh Pra 406, 2. In re, P. Adeshamma, AIR 1958 Andh Pra 230, 3. Balakrishnan Nambiar v. Gopalan Nambiar, AIR 1961 Kerala 48, and 4. Coimbatore Municipality v. K. L. Narayanan, AIR 1958 Mad 416 . I am in entire agreement with the view taken in the decisions cited above. 9. A different view has been taken by the Bombay High Court in its Full Bench decision - Anjanabai Yeshwant Rao v. Yeshwantrao Daulatrao, AIR 1961 Bom 154 . This has been followed by the Gujarat High Court, State v. Bai Rani, 1962 (1) Cri. LJ 328. The Bombay F. B. decision has followed an earlier Division Bench decision of the same Court, Canara Bank Ltd. v. Warden Insurance Co., Ltd., AIR 1953 Bom 35 . The Bombay decisions as well as Gujarat decision have held that Section 29(2) of the Limitation Act would apply to applications for special leave under S. 417 (3) of the Cri. P. C. mainly on the ground that S. 417(4) is a special provision for a special subject and hence a special law within the meaning of Section 29 (2) of the Limitation Act. I find myself unable to agree that a special provision fixing a period of limitation under the Criminal Procedure Code will mean a special law within the meaning of Section 29 (2). I find myself unable to agree that a special provision fixing a period of limitation under the Criminal Procedure Code will mean a special law within the meaning of Section 29 (2). The Bombay High Court appears to have relied on the decision, AIR 1958 All 691 , which has been overruled by the Allahabad High Court itself. In my opinion therefore Section 5 of the Limitation Act will apply to our present case and delay can be condoned if there are proper reasons to do so. 10. The reason for the delay in the present case was because the appellants filed applications under S. 435 before the Sessions Judge under the impression that such an application will lie. It was only when the Sessions Judge dismissed the said revision petitions as incompetent on the ground that S. 417 (3) provided for an appeal that the appellants came forward with the present appeals. What they now seek is to condone the delay which was the result of their filing the said revision petitions. The argument of the learned Government Advocate was that in view of S. 417 (3) which permitted an appeal, Section 439 (5) Cri. P. C. will bar the entertainment of a revision application at the instance of a party who could have appealed and that therefore revision petitions under Section 435 to the Sessions Judge were incompetent under law and so any time taken for prosecuting the said revision petitions under S. 435 cannot be said to have been the result of due care and attention and hence the said time should not be excluded and condoned under S. 5 of the Limitation Act. In the decision Raj Kumar Paul v. Amar Chand Das, 1962 (1) Cri. LJ 677 (Tri), I have taken the view that Section 435 Cri. P. C. will not prohibit the Sessions Judge in reporting a case to the High Court for orders even in a case of acquittal if on an examination of the record he finds that an order of acquittal passed by the inferior Court should be reversed even where the Sessions Court is moved by a party who could have applied for special leave to appeal to the High Court under S. 417 (3). In another decision Khaija Waiphei v. Ngulthang, Chief, Cril. In another decision Khaija Waiphei v. Ngulthang, Chief, Cril. Appeal No. 28 of 1961 : ( AIR 1963 Manipur 15 ) in Manipur, I have held the same view. I have also dealt with the case law on the subject in detail before coming to that conclusion. 11. But certain decisions which I have not dealt with in those decisions have been cited now by the learned Government Advocate. They are State of Bombay v. N. G. Tayawade, AIR 1959 Bom 94 , City Board Mussoorie v. Sri Kishan Lal, AIR 1959 All 413 and Ram Narain v. Mool Chand, 1960 Cri. LJ 552 : ( AIR 1960 All 296 ). I have perused the said decisions with care and I see no reason to change the view which I have taken in the two decisions cited above. 12. But we need not go even thus far in the present case. The very fact that there are two views possible as to whether a revision petition can be filed before the Sessions Judge or whether an appeal should be filed under S. 417 (3) shows that if the appellants first filed a revision petition in the Sessions Court and that revision petition is dismissed, certainly the time taken for prosecuting the revision petition has to be condoned under S. 5 of the Limitation Act. I see no reason therefore to dismiss this appeal on the ground that it is barred by limitation. This is a fit case where the delay should be condoned. 13. Coming to the merits of the case, the appellants main grievance is that the Bench Clerk of the Additional District Magistrate gave them the date as 14-4-1959 and hence they were absent on 13-4-1959 to which date it is now seen that the case was really posted. It would appear that in the revision petitions, the Sessions Court called for a report from the A.D.M. on this matter and the A.D.M. obtained an explanation from the Bench Clerk. In the said explanation, the Bench Clerk Brajachand Singh denied that he gave the date as 14-4-1959 to the appellants. He stated that he gave the correct information about the date to the appellants. Normally, such an explanation has to be accepted. In the said explanation, the Bench Clerk Brajachand Singh denied that he gave the date as 14-4-1959 to the appellants. He stated that he gave the correct information about the date to the appellants. Normally, such an explanation has to be accepted. But when I went through the order sheets in the two cases before the learned A.D.M I was surprised to find that the orders on many of the dates of hearing were written in the hand-writing of the Bench Clerk himself and that on some of the dates of hearing the A.D.M. had not even signed in the order sheets and that at least on one date, namely, 22-1-1959, even the initial seen in the order sheet was not that of the A.D.M. but of some other person. The explanation of the A.D.M. was obtained regarding this irregular manner of keeping the order sheets and he was asked to explain how it happened that the Bench Clerk was permitted to write the orders in the order sheets. The learned A.D.M. has not stated how for the date 22-1-1959, some other person happened to put his initial in the order sheets. In one place in his explanation the learned A.D.M. states that on 18-3-1959 he may have been out of Station. If he was out of station, he cannot have initialled the order sheet on that date fixing the next date of hearing as 13-4-1959. In another place in his explanation, the learned A.D.M. states that the order sheet dated 18-3-1959 in one of the cases was corrected by him and he had added certain words in it. But the main orders for the date 18-3-1959 in both the cases appear to be in the hand-writing of the Bench Clerk and the date 13-4-1959 is also in his handwriting. 14. Thus, it is clear that it is the Bench Clerk who plays a prominent part in the writing of the order sheets and evidently in giving the adjourned dates of hearing to the parties. So what we have to be certain is whether in this case the Bench Clerk gave the appellants the date as 14-4-1959 or as 13-4-1959. I find that the appellants were very regular in their attendance in the Court on the hearing dates. So what we have to be certain is whether in this case the Bench Clerk gave the appellants the date as 14-4-1959 or as 13-4-1959. I find that the appellants were very regular in their attendance in the Court on the hearing dates. So if they had been given the date of hearing as 13-4-1959 there was no reason for them to allow their cases to go by default on 13-4-1959. In that connection, the appellants produced a post-card written by one of the appellants Ruringsui Tangkhul on 19-3-1959 to his father with an English translation of the same. In this letter, there is a reference to these cases and it is stated that the Peshkar told him that the case will be taken up on 14-4-1959. I find that this post-card with the English translation had been produced in the revision petitions in the Sessions Court also to prove that the date had been given to them by the Peshkar as 14-4-1959. Thus, it is clear now that the appellants did not appear in Court on 13-4-1959 as they were under the impression that the case was posted to 14-4-1959. As the appellants were quite regular in their attendance, I have no reason to doubt their statements. Thus, the two cases have been disposed of without the appellants having a chance to prove their cases. 15. I realise that the occurrence complained of took place in 1957 and that 5 years have passed. But the occurrence complained about is a very serious matter, as charges of assault have been brought against public servants including an erstwhile S.D.O. of Churachandpur. If the cases are true, the public servants deserve to be punished in spite of the passage of time. On the other hand, if the cases are false, it is better that the public servants get honourably acquitted after a regular trial. I, therefore, consider that the appellants must be given a chance to prove their cases, particularly as they have been quite diligent in the prosecution of their cases and the cases happened to be dismissed as a result of misunderstanding. It is, therefore, necessary to have the acquittals set aside. Accordingly, the appeals are allowed and the acquittal orders of the respondents in the two appeals are set aside and the criminal cases are remanded to the A.D.M. for fresh trial. Appeals allowed.