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2017 DIGILAW 284 (JK)

State of J&K v. Nazir Ahmad Bhat

2017-06-09

MOHAMMAD YAQOOB MIR, SANJAY KUMAR GUPTA

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Judgment Sanjay Kumar Gupta, J.—Vide judgment dated 06.04.2015, trial court (learned Sessions Judge, Anantnag) on conclusion of trial has acquitted respondents No.2 and 3 whereas respondent No.1 has been acquitted of the charges under Sections 302, 447 read with Section 34 RPC but has been convicted under Section 304 RPC. Aggrieved thereof, State has decided to file an appeal but in terms of Proviso to sub-section (1) of Section 417 of the Code of Criminal Procedure, appeal cannot be filed except with the leave of the Court, hence the instant application. The applicants have also filed an application for condoning the delay of 95 days in preferring the appeal. 2. According to learned counsel for the respondents, application for leave to appeal should have been filed within the period of limitation which has not been done, therefore, delay cannot be condoned as Section 5 of the Limitation Act, which provides for condonation of delay, is not applicable. 3. Learned counsel for the respondents proceeded on the notion that when the period of limitation is prescribed by Section 417 Cr. P. C, then, in terms of Section 29 of the Limitation Act, Section 5 of the Limitation Act will not apply. The submission of the learned counsel is misplaced. Proviso to Section 417 Cr. P. C has been added by way of amendment in the year 2012 to the following effect: “Provided no appeal to the High Court under sub-section (1) shall be entertained except with the leave of the High Court”. Sub-section (1) of Section 417 does not, by itself, prescribed any period of limitation for filing application seeking leave to appeal. 4. Section 417 of the Code of Criminal Procedure, for facility of reference is quoted here-under: Appeal in case of acquittal (1) Subject to the provisions of sub-section (4), the Government may, in any case, direct the Public Prosecutor to present an appeal to.— (a) the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the High Court from an original or appellate order of an acquittal passed by any Court, not being an order under clause (a) or an order of acquittal passed by Court of Sessions in revision : Provided that no appeal to the High Court under sub-section (1) shall be entertained except with the leave of High Court. (2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf, grant special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (3) No application under sub-section (2) 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. (4) If, in any case, the application under sub-section (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under section (1). Explanation: For the purposes of this section the expression “Public Prosecutor” shall include and shall be deemed always to have included the Advocate General, senior Additional Advocate General, Deputy Advocate General, Additional Advocate General and Government Advocate.” 5. Sub-section (1) of Section 417 Cr.P.C provides that the Government may, in any case, direct Public Prosecutor to present an appeal against the order of acquittal to the High Court from an original order or appellate order of acquittal. For entertaining such appeal leave has to be obtained. 6. Sub-section (2) of Section 417 Cr.P.C provides that if an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant, grants special leave, then complainant can present such an appeal to the High Court. Sub-section (3) provides that application under sub-section (2) for the grant of special leave shall not be entertained by the High Court after the expiry of six months where the complainant is a public servant and 60 days in every other case from the date of order of acquittal. 7. So far as sub-sections (2) and (3) of Section 417 Cr.P.C are concerned, the period of limitation is prescribed which makes these sub-sections as special law within the meaning of Section 29 of the Limitation Act, therefore, in an appeal, which arises in the context of sub-section (2) of section 417 Cr.P.C, Section 5 of the Limitation Act will not apply. 8. 8. Section 29 of the Jammu and Kashmir Limitation Act provides that where any special or local law prescribes period of limitation different from the period prescribed there for by the First Schedule of the Limitation Act, then provisions of Section 3 will apply. It further provides that for purposes of determining any period of limitation prescribed by any special or local law, the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only to the extent to which they are not expressly excluded by such special or local law. Clause (b) of sub-section (2) of Section 29 provides that “the remaining provisions of the Act shall not apply”. So in such cases clearly Section 5 is not applicable. 9. Sub-section (1) and (2) of Section 417 Cr.P.C are independent not interdependent, however, sub-sections (2) and (3) of Section 417 Cr.P.C are interdependent. Sub-section (1) applies to the appeals proposed to be filed by the State for which leave has to be obtained from the High Court but for grant of such leave no period of limitation is prescribed by the said sub-section whereas under sub-section (2) if complainant wants to file appeal against an acquittal order passed in any case instituted upon complaint, he has to file application for leave within 60 days. 10. Prior to amendment, in terms whereof Proviso to sub-section (1) of Section 417 Cr.P.C. was added, the State was not required to obtain leave for filing appeal against an order of acquittal. Later on in the year 2012, Proviso has been added for obtaining leave but no limitation has been prescribed. The Legislature in its wisdom has introduced the Proviso only with the object of screening so that meritless appeals are not filed against the orders of acquittal and only for that purpose it has been provided that leave shall be obtained. So far as sub-sections (2) and (3) are concerned, Legislature in its wisdom has prescribed the period of limitation for filing application for leave to appeal, which too is with an object of discouraging a private complainant for keeping proceedings open indefinitely. 11. Since under sub-section (1) of Section 417 Cr.P.C, no period of limitation is prescribed for seeking leave to file appeal, the objection raised by learned counsel for the respondents is accordingly repelled. 12. Coming to the question of leave. 11. Since under sub-section (1) of Section 417 Cr.P.C, no period of limitation is prescribed for seeking leave to file appeal, the objection raised by learned counsel for the respondents is accordingly repelled. 12. Coming to the question of leave. In our considered view, prima-facie, grounds exist for grant of leave, therefore, leave to appeal is granted subject to condonation of delay which has occurred in preferring the appeal. MP seeking grant of leave to file appeal is, accordingly, disposed of. 13. To avoid any further protraction, it would be quite appropriate to take up the application seeking condonation of delay in preferring the appeal, to which objections have been already filed 14. Delay of 95 days in preferring appeal has been well explained in the application sufficient cause for condoning delay has to be liberally construed with a caution that total indolence shall not be attributable to the seeker thereof. 95 days delay is not a huge delay. It has been explained in the application as to how the papers have been moved in the government departments for obtaining sanction for filing appeal. Therefore, in view of the grounds urged in the application, we are satisfied that the delay is condonable which is, accordingly, condoned. Criminal acquittal appeal be diarized and be listed for consideration in the month of July, 2017 in the regular cause list. 15. COD No.1352/2015 is accordingly disposed of.