Research › Browse › Judgment

Kerala High Court · body

1992 DIGILAW 330 (KER)

Karthikeyan v. Ravindran

1992-08-28

M.M.PAREED PILLAY

body1992
Judgment :- This is a petition to condone delay in Tiling the Crl.M.C. The Magistrate dismissed the complaint on 1-11-1990 on the ground that the petitioner (complainant) was not present when the case was called for. Against that order petitioner filed Crl.R.P.21 of 1991 before the Sessions Court, Trichur. The Sessions judge dismissed the revision petition on the ground that it is not maintainable. It is thereafter that the above Crl.M.C. has been filed. - 2. Contention of the petitioner is that there was no intentional delay or laches on his part and the delay occurred on account of the wrong filing of the Criminal Revision Petition before the Sessions Court, Trichur and also on account of his illness. To prove the illness, petitioner has produced annexure-1 medical certificate. 3. Counsel for the respondents opposed the application mainly on the ground that S.5 of the Limitation Act cannot have any application in a case coming under S.378(5) of the Cr.P.C. He argued that the Code of Criminal Procedure specifically provides 60 days as the period of limitation and that being so, S.5 of the Limitation Act cannot be invoked by the petitioner. 4. The question that arises for consideration is whether in an application under S.378(5) of the Cr.P.C. delay in presentation can be sought to be condoned under S.5 of the Limitation Act. S.29(2) of the Limitation Act provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of S.3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Ss.4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Thus, from a reading of S.29(2) of the Limitation Act it is apparent that Ss.4 to 24 will apply when they are not expressly excluded by any special or local law. S.29(2) makes an important departure from S.29(2) of the Old Limitation Act (1908 act). Under S.29(2) of the present Act (Limitation Act, 1963) S.5 is made applicable. Thus, from a reading of S.29(2) of the Limitation Act it is apparent that Ss.4 to 24 will apply when they are not expressly excluded by any special or local law. S.29(2) makes an important departure from S.29(2) of the Old Limitation Act (1908 act). Under S.29(2) of the present Act (Limitation Act, 1963) S.5 is made applicable. As S.5 is thus made applicable, it is open to a party to avail of it for the purpose of extending the period of limitation so long as the special or local law does not expressly exclude the applicability of S.5. In a case where special or local law expressly excludes applicability of S.5, it would not certainly be open to a party to invoke its aid. The time limit specified under S.378(5) Cr.P.C. for filing application for grant of special leave to appeal from an order of acquittal is six months where the complainant is a public servant and sixty days in every other case. Period has to be computed from the date of order of acquittal. Merely because the lime limit is specified under S.378(5) of Cr.P.C. it is not possible to hold that S.5 of the Limitation Act cannot be invoked as there is nothing in the Criminal Procedure Code which expressly excludes the applicability of S.5. 5. In Mangu Ram v. Delhi Municipality (AIR 1976 SC 105) the Supreme Court held that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, S.5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the limit of sixty days prescribed in S.417(4), the application would not be barred and despite the expiration of the lime limit of sixty days, the High Court would have the power to entertain it. The Supreme Court was considering S.417 of the old Code which corresponds to S.378 of the present Code with certain alterations. As the Criminal Procedure Code does not specifically exclude the application of S.5 of the Limitation Act and as S.29(2) of the Limitation Act makes the position clear that S.5 can be invoked for condonation of delay, contention of the second respondent that S.5 cannot be availed of by the petitioner is untenable. As the Criminal Procedure Code does not specifically exclude the application of S.5 of the Limitation Act and as S.29(2) of the Limitation Act makes the position clear that S.5 can be invoked for condonation of delay, contention of the second respondent that S.5 cannot be availed of by the petitioner is untenable. Considering the averments in the affidavit in support of the petition, I find that sufficient grounds have been made out to condone the delay. Delay is condoned. Petition stands allowed.