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2006 DIGILAW 635 (MAD)

S. Magalingam v. A. Ganesan S/o. Annamalai

2006-03-06

M.JEYAPAUL

body2006
Judgment : M. Jeyapaul, J. 1. The petition is filed by the petitioner/respondent to recall the orders passed by this Court on 17.11.2005 in Crl.O.P. No. 31531 of 2005 and Crl.A. No.897 of 2005. 2. This Court was pleased to grant special leave in Crl.O.P. No. 31531 of 2005 to prefer the Criminal Appeal No. 897 of 2005 as against the judgment of acquittal passed by the Trial Court for offences under Section 138 of the Negotiable Instruments Act. 3. The petitioner has contended in the petition that this Special Leave Petition in Crl.M.P. No. 350 of 2006 was entertained and allowed by this Court without there being any application to condone the delay in preferring the special leave petition as against the judgment of the Trial Court passed on 29.7.2005. It has been contended that the appeal itself should not have been numbered even before the Special Leave Petition was disposed of by this Court. Simultaneous numbering of the Special Leave Petition as well as the Criminal Appeal is against the spirit of Section 378 of the Code of Criminal Procedure. 4. Considering the importance in the challenge made by the petitioner herein as against the procedure adopted by the Registry, the Court thought it fit to associate the Presidents of the respective Bar Association to assist this Court to determine the issues involved in this matter. 5. Learned Senior Counsel Mr. B. Sriramulu, came forward to represent the Bar Associations and the respondent also was represented by his counsel. The Court heard the submissions made by the learned Senior Counsel Mr. B. Sriramulu representing the Bar, Dr. A.E. Chelliah, learned Senior Counsel for the petitioner, the learned counsel for the respondent and the learned Public Prosecutor. 6. Theissues which have arisen in this petition are: ( 1 ) Whether the Criminal Appeal can be numbered simultaneously with the petition seeking special leave to appeal against the order of acquittal ? ( 2 ) Whether the petition seeking special leave was filed within the period of limitation as prescribed under Section 378(5) of the Code of Criminal Procedure ? ( 3 ) To what relief the petitioner is entitled in this petition ? 7. Thefact remains that the learned Judicial Magistrate, Arakkonam, has passed a verdict of acquittal in C.C. No. 69 of 2005 on 29.7.2005 as against the respondent herein. ( 3 ) To what relief the petitioner is entitled in this petition ? 7. Thefact remains that the learned Judicial Magistrate, Arakkonam, has passed a verdict of acquittal in C.C. No. 69 of 2005 on 29.7.2005 as against the respondent herein. The certified copy of the judgment would disclose that the copy application to secure the copy of the judgment was filed on the very same day of pronouncement of the judgment. The certified copy of the order was made ready by the Court on 24.8.2005. 8. Section 378(5) of the Code of Criminal Procedure reads as follows: “Section 378. Appeal in case of acquittal.— (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.” 9. Sixty days time has been given under the aforesaid provision of law to prefer the application seeking special leave of appeal from the date of that order of acquittal. 10. Section 12(1) and (2) of the Limitation Act, 1963 reads as follows: “Section 12. Exclusion of time in legal proceedings.— (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.” 11. The date on which the judgment was pronounced and the time taken by the Court to issue certified copy of the judgment to prefer petition seeking leave to appeal also will have to be excluded while computing the period of limitation. 12. If Section 378(5) of the Code of Criminal Procedure and Section 12(1) & (2) of the Limitation Act, 1963 are conjointly read it will disclose that special leave petition in this case should have been filed as on 24.10.2005. 13. 12. If Section 378(5) of the Code of Criminal Procedure and Section 12(1) & (2) of the Limitation Act, 1963 are conjointly read it will disclose that special leave petition in this case should have been filed as on 24.10.2005. 13. But here in this case, the special leave petition had been filed only on 7.11.2005 beyond the period of limitation as contemplated under Section 378(5) of the Code of Criminal Procedure. 14. The earlier view that Section 5 of the Limitation Act does not apply to the application seeking special leave to appeal against the acquittal has been given a go by in the authority in Mangu Ram v. Delhi Municipality, AIR 1976 SC 105 . It has been observed therein as follows by the Hon’ble Supreme Court: “Mere provision of a period of limitation in Section 417 (4) in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible 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, Section 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 sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it.” 15. The Hon’ble Supreme Court has observed in The Assistant Registrar of Companies, West Bengal, Calcutta v. Standard Paint Works (Pvt.) Ltd., AIR 1971 SC 1115 , that the appeal preferred against the acquittal without obtaining special leave within the time prescribed by Section 417(4) [Now Section 378(5)] is incompetent and barred by limitation. 16. Learned Senior Counsel for the petitioner would submit that as the Special Leave Petition has been filed without any application to condone the delay in preferring such a petition, the order passed in the Special Leave Petition as well as the order of admission passed in the appeal will have to be recalled by this Court. 17. 16. Learned Senior Counsel for the petitioner would submit that as the Special Leave Petition has been filed without any application to condone the delay in preferring such a petition, the order passed in the Special Leave Petition as well as the order of admission passed in the appeal will have to be recalled by this Court. 17. Learned Senior Counsel for the Bar Association, concurring with the submission made by the learned Senior Counsel for the petitioner, would submit that though the Special Leave Petition as such is not sustainable on account of the fact that it had been filed beyond the period of limitation as prescribed under Section 378(5) of the Code of Criminal Procedure, this Court in the interest of justice may recall such an order granting special leave to prefer an appeal against the acquittal conferring liberty on the respondent to file an application under Section 5 of the Limitation Act to condone the delay in preferring the Special Leave Petition. 18. The Court finds that the respondent should not be shown the doors denying the very access to the justice delivery system, as the respondent was found to be unaware of filing of the special leave and also filing of an application to condone the delay in filing the special leave petition. In fact, the Registry rightly alerted the respondent to wake up and file an application seeking special leave as otherwise the appeal against the acquittal cannot be entertained. The Court finds that there is nothing wrong in informing the litigant public by the Registry about their valuable right to move applications under law. 19. As rightly contended by the petitioner, the order passed in the Special Leave Petition without condoning the delay in preferring such application and the order admitting the appeal will have to be recalled. But the Court feels that the respondent will have to be given an opportunity to try a chance by filing an application under Section 5 of the Limitation Act to condone the delay in preferring the Special Leave Petition, as there is time of 30 days as per Article 114 of the Limitation Act, to prefer the appeal as against the order of acquittal from the date of grant of special leave. 20. 20. The authority in State of Rajasthan v. Ramdeen, AIR 1977 SC 1328 , rules as follows: It is not necessary as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal. .............. .............. .............. “It is, therefore, not necessary to wait until the grant of leave by the High Court to present a memorandum of appeal against acquittal at the instance of the State. Thus, appeal can be filed by the State within ninety days from the date of the order of acquittal and a prayer may be included in that appeal for entertaining the appeal under sub-section (3) of Section 378, Cr.P.C. If the leave sought for is not granted by the High Court the appeal is not entertained and stands dismissed.” The above authority pronounced by the Hon’ble Supreme Court has set at rest the controversy as to whether the criminal appeal as against the order of acquittal should be filed only after the special leave was granted. As per the above verdict, the special leave petition as well as the appeal as against the order of acquittal can be simultaneously numbered and taken cognizance of by the High Court, of course subject to the period of limitation applicable with regard thereto. 21. As per Section 362 of the Code of Criminal Procedure, this Court is debarred from altering or reviewing its judgment or final order of disposing of a case, except making correction of clerical or arithmetical error. 22. But here the order passed in the Special Leave Petition enabling the respondent to agitate his appeal and the admission of the appeal cannot be termed as either a judgment or a final order disposing of a case. Therefore the order granting special leave passed by this Court in Crl.O.P. No. 31531 of 2005 and the order of admission passed in the main Criminal Appeal No. 897 are recalled and the respondent is given an opportunity to file an application under Section 5 of the Limitation Act to condone the delay in preferring the petition seeking special leave as against the order of acquittal. Consequently, the Criminal Miscellaneous Petition stands allowed.