Criminal Application No. 317 of 2001

19th December, 2001

Petitioner Counsel: Shri. A. S. CHANDURKAR
Respondent Counsel: MS. UDESHI

Cases Cited:
Anjanabai Yeshwantrao Vs. Yeshwantrao Daulatrao, A.I.R. 1961 Bombay 154 : ILR (1961) Bom.135 (FB) [Para 10,12]
Kaushalya Rani Vs. Gopal Singh, A.I.R. 1964, SC 260 [Para 11]
Lala Ram Vs. Hari Ram, A.I.R. 1970 SC 1093 [Para 12]
Manguram Vs. Municipal Corporation, Delhi, AIR 1976 SC 105 [Para 14,15]

JUDGMENT

JUDGMENT :- Heard Shri. Chandurkar, learned Counsel for the Applicant and Ms. Udeshi, learned Counsel for the Non-applicants.

2. The applicant/husband has impugned the order dt. 05-12-2000 passed by the Additional Sessions Judge, Achalpur in Misc. Criminal Application No.20/2000, which was filed for seeking condonation of delay under section 5 of the Limitation Act, as the applicant/husband preferred a Criminal Revision Application before the Additional Sessions Judge, 19 days beyond the prescribed period of limitation.

3. It is the applicant's case that he was married to non-applicant no.1 about 10 years back, and that there are two children from the said marriage. The elder daughter resides with the applicant, while the non-applicant no.2 resides with the mother. The non-applicant no.1 - Wife initiated proceedings under section 125 of Criminal Procedure Code for grant of maintenance by filing an application on 16-11-1999, which came to be registered as Misc. Criminal Application No.168/1999. Vide judgment and order dtd. 01-08-2000 the learned Judicial Magistrate. First Class at Anjangaon Surji allowed the application for grant of maintenance and ordered the husband to pay Rs.600/- per month to wife towards her maintenance and Rs.300/- per month to the minor daughter from the date of application and also awarded costs of Rs.500/-. The applicant/husband therefore, challenged the said order by preferring Criminal Revision Application under section 397 Cr.P.C. before the Additional Sessions Judge, on 29-11-2000, which was beyond the prescribed period of limitation, and therefore, an application for condonation of delay under section 5 of the Limitation Act, was also filed. It is this application which came to be rejected by the impugned order, which reads as under:

"The applicant has filed instant application u/s. 5 of the Limitation Act to condone delay of 19 days caused in preferring revision, against the order dt. 1-8-2000 passed in Cr. Case No.168/1999 (u/s.125 of the Cr.P.C.) by the learned J.M.F.C. Anjangaon Surji.

On previous date as per request of Mr. Patil, learned Counsel for the applicant matter has been adjourned and fixed today to show the law about the applicability of S.5 of Limitation Act. But today neither applicant remained present nor his Advocate.

I am of the view that S.5 of the Limitation Act in terms does not apply to revision petition. Hence instant application u/s. 5 is not tenable. Therefore, application stands rejected.

Proceeding be filed."

4. Mr. Chandurkar, the learned counsel appearing for the applicant submitted that the learned Additional Sessions Judge not only committed error of law apparent on the face of record but by observing that the provisions of Section 5 of the Limitation Act, were not applicable to the revision petition has taken a decision contrary to law. It is submitted that under Article 131 of the Schedule to the Limitation Act, a period of 90 days is prescribed for preferring a revision application under Cr.P.C. It is further submitted that, the applicability of the provisions of Section 5 of Limitation Act has not been specifically excluded under section 399 of Cr.P.C. Mr. Chandurkar, has gone a step further and submitted that even if it is to be presumed that the learned Additional Sessions Judge is of the view that Section 5 of the Limitation Act in terms does not apply to the revision petition, probably having in mind Section 29(2) of the Limitation Act.1963, then also he is not justified because unless the provisions of Section 5 of the Limitation Act are specifically excluded the same continue to apply and therefore, there was no reason whatsoever to hold that section 5 of the Limitation Act was not applicable for condoning the delay in preferring revision application under section 397 of Cr.P.C., and therefore the impugned order deserves to be quashed and set aside.

5. Ms. Udeshi, the learned Counsel appearing for the non-applicants submitted that for the purpose of limitation Act, the Code of criminal procedure is a special law, and it does provide within itself provisions prescribing period of limitation for filing cases. She pointed out to the Court that the new code has brought a revolutionary change on this point and has introduced a new Chapter XXXVI, which provides for "Limitation for taking cognizance of certain offences". The provisions of this chapter are self contained as it specifies exclusion of time in certain cases and also embodies the principle embodied in Section 5 of the Limitation Act, 1963 namely that the aforesaid bar of limitation may be condoned by the court taking cognizance where the delay has been properly explained or it is necessary to do so in the interest of justice. Thus there is no scope for invoking any provisions of the Limitation Act, in cases where the provisions of this new chapter XXXVI of the Code are applicable. Ms. Udeshi, has further submitted that the Code of Criminal Procedure also prescribes for special period of limitation for certain proceedings; for example Section 378 (5) which leads to Special Leave to Appeal by complainant under section 125(3), proviso (i) relating to application for recovery of maintenance and section 84(4) for a suit to establish right to property attached, and therefore by virtue of Section 29(2) of the Limitation Act, section 5 of the said Act would have no application, and therefore the learned Additional Sessions Judge was justified in holding that section 5 of the Limitation Act in terms does not apply to the revision petition and therefore the order does not call for any interference.

6. If one examines the impugned order passed by the learned Additional Sessions Judge, except for observing that he is of the view that Section 5 of the Limitation Act does not apply to revision petition the learned Judge has not given reason for holding such a view, and therefore it is very difficult to understand the premise on which the learned Additional Sessions Judge, who is a Senior Judicial Officer holds such a view. In the impugned order itself the learned Additional Sessions Judge has observed that he has actually asked the counsel for the applicant to show the law about the applicability of section 5 of the Limitation Act, and as no body was present on the date the matter was taken up for hearing on the issue, and he passed the impugned order.

7. Section 2(j) of the Limitation Act 1963 defines "Period of Limitation" means the period of limitation prescribed for any suit, appeal or application by the Schedule and "Prescribed period" means the period of limitation computed in accordance with the provisions of this Act. Section 3 of the Limitation Act provides for bar of limitation and sub section (1) to Section 3 reads, Subject to provisions contained in Section 4 to Section 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. The schedule relating to period of limitation and particularly the 3rd division which governs the application, it is Article 131 of the said Schedule which would be applicable to the facts of the present case. Article 131 provides that all applications to any Court for the exercise of its power of revision under the Code of Civil Procedure or Code of Criminal Procedure the prescribed period of limitation is 90 days, and the time from which the period begins to run is the date of decree or order or sentence sought to be revised.

8. In the Code of Criminal Procedure Chapter XXX governs matters relating to Reference and Revision; to be specific section 397 of the Code vests with the High Court or any Sessions Judge, power of revision and for which the said Court may call for records to exercise the powers of revision. None of the Provisions relating to the exercise of powers of revision i.e. from Section 397 to Section 405 specifically provide for any period of limitation within which such an application is required to be made. In so far as the Sessions Judge's powers of revision are concerned, the same are provided under section 399 of the code, which are coextensive with those of High Court, and it does not provide for any period of limitation, and therefore one should have no doubt in his mind that the prescribed period of limitation for filing a Criminal Revision Application will be governed by Article 131 of the Limitation Act, and Section 5 of the said Act will enable the court to admit the application after the expiry of period of limitation on sufficient cause being shown for condonation of delay. As the bar of limitation provided under section 3 of the Limitation Act is to be exercised subject to the provisions contained in sections 4 to 24 (inclusive) and therefore the view taken by the learned Additional Sessions Judge is without application of mind and contrary to law.

9. In so far as the contention of Ms. Udeshi, the learned Counsel appearing for the non-applicants, that the criminal procedure code is a special law, as it provides for the priod of limitation, also cannot be accepted. Merely because certain provisions of the Code prescribe period of limitation different from the period prescribed under the Limitation Act, the Code of Criminal Procedure cannot be said to be a special law as contemplated in Sec. 29(2) of the Limitation Act. On the other hand, Section 5 of the Code which is a saving clause makes it quite clear, how a specific provision of the Code is to be read in context of any special or local law. Section 5 of the Code reads as under :

"5. Saving - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

It means, in short, that when a special law creates offences, it may also create a special jurisdiction, power or procedure for dealing with them, and such special procedure shall not be invalid for being inconsitent with the code. If however, the special law provides a special procedure only for some matters, the provision of the code shall apply as regards those matters on which the special law is silent. Therefore, in absence of any limitation being provided in the code itself for filing a Revision, it has to be considered in generic sense and the general provisions of the Limitation Act, will given the period of limitation, and a Revision will have to be preferred within the prescribed period in the said Act.

10. Ms. Udeshi, has tried to take recourse to certain decisions in support of her contention namely; that of Anjanabai Yeshwantrao vrs Yeshwantrao Daulatrao, A.I.R. 1961 Bombay (FB), wherein it was held that;

"The expression 'Special Law' in S.29(2), Limitation Act, means a provision of law, which is not applicable generally, but which applies to a particular or specified subject or class of subjects. The provisions of S.417(4), Cr.P.C. does not prescribe limitation for all appeals under the Criminal Procedure Code, or even for all appeals from the orders of acquittal. It is a special provision, which applies only to applications made by private parties for leave to appeal from orders of acquittal and is therefore a special law within the meaning of sub-section (2) of Sec.29, Limitation Act. Further it is a special law which does prescribe a period of limitation different from the period prescribed therefor, by the first schedule to the Limitation Act. Section 5 of the Limitation Act, therefore does not apply to the application under S.417(3), Cr.P.C. and the delay on the part of the applicant in making the application under S.417(3) cannot be condoned under S.5, Limitation Act."

11. Another is the case of Kaushalya Rani vrs Gopal Singh, A.I.R. 1964, SC 260, wherein the court examined the issue, and observed as under :

"The whole Code of Criminal Procedure is indeed a general law regulating the procedure in criminal trials generally, but it may contain provisions specifying a bar of time for particular class of cases which are of a special character. Such a law will be a 'special law' with reference to the law generally governing the subject matter of that kind of relationship. A 'special law', therefore, means a law enacted for special cases in special circumstances, in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. In that sense, the Code is a general law regulating the procedure for the trial of criminal cases, generally; but if it lays down any bar of time in respect of special cases in special circumstances like those contemplated by S.417(3) and (4), read together, it will be a special law contained within the general law. The Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act, but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of limitation. Once it is held that the special rule of limitation laid down in sub-sec.(4) of S.417 of the Code is a 'special law' of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the conclusion that S.5 of the Limitation Act is wholly out of the way, in view of S.29(2)(b) of the Limitation Act."

12. In Lala Ram vrs Hari Ram, A.I.R. 1970, SC 1093, the decision in Anjanabai and so also Kaushalya Rani came up for consideration and the Apex Court held as under :

"In our opinion there is no force in the contentions. In Kaushalya Rani v. Gopal Singh (1964) 4 SCR 982 at p.987 = (A.I.R. 1964 SC 260 at p.262) this Court, while dealing with the question whether Section 5 of the Limitation Act applies to applications under section 417(3) described this period of 60 days mentioned in Section 417(3) as follows :

"In that sense, this rule of 60 days bar is a special law, that is to say, a rule of limitation which is specifically provided for in the Code itself, which does not ordinarily provide for a period of limitation, for appeals or applications".

This Court further observed :

"Once it is held that the special rule of limitation laid down in sub-section [4] of section 417 of the Code is a 'special law' of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the conclusion that sec.5 of the Limitation Act is wholly out of the way, in view of Section 29(2)(b) of the Limitation Act."

This Court approved the judgment of the Full Bench of the Bombay High Court in Anjanabai .v. Yeshwantrao Daulatrao. ILR (1961) Bom 135 at p.137 = (AIR 1961 Bom.154 at pg.155)(FB). The Full Bench of the Bombay High Court had observed in Anjanabai's case. AIR 1961 Bom 154 (FB) :

"Sub-section (4) prescribes a period of limitation for such an application. It states that no such application shall be entertained by the High Court after the expiry of sixty days from the date of the order of acquittal. This period of limitation is prescribed not for all appeals under the Criminal Procedure Code, or even for all appeals from the orders of acquittal. It is prescribed only for applications for special leave to appeal from orders of acquittal. It is therefore a special provision for a special subject and is consequently a special law within the meaning of Section 29(2) of the Limitation Act."

It is quite clear that the Full Bench of the Bombay High Court and this Court proceeded on the assumption that Section 417(4) of the Criminal Procedure Code prescribes a period of limitation. The learned Counsel, however contends that there was no discussion of this aspect. Be that as it may, it seems to us that Section 417(4) itself prescribes a period of limitation for an application to be made under section 417(3). It was not necessary for the legislature to have amended the Limitation Act and to have inserted an article dealing with applications under section 417(3), Criminal Procedure Code; it was open to it to prescribe a period of limitation in the Code itself."

13. Well all these decisions pertain to Section 417 (Old Code) i.e. Section 378 (New Code) of Cr.P.C. which provides for appeal in case of acquittal which is to be filed within the prescribed period of limitation mentioned in the Section itself, and therefore, the Court was of the view that it was a special law within the meaning of Section 29 of the Limitation Act, and to that extent, section 5 of the Limitation Act (old) would not be applicable. At this stage it will be fruitful to refer to the provisions of Section 29 of the Limitation Act, as provided in the Act of 1908 and so also 1963. This provision of new and old Acts if read in juxtaposition, the controversy becomes clear :

NEW		OLD
29.Savings - (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872.		29. Savings - (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872.
(2) 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 provision of Section 3 shall apply as if such period were the period prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 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.		(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 provisions of section 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 -
(Emphasis supplied)		(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. (Emphasis supplied)

14. If one examines Clause [a] and [b] of sub-section 2 of section 29 of the Old Act, it makes very clear that when ever there is a special or local law which prescribes for any suit, appeal or application, a period of limitation different from the period of limitation from first schedule, the provisions of section 3 shall apply, as if such period is prescribed therefor in that schedule and for the purpose of determining any period of limitation, prescribed for any suit, application or appeal, it is only the provisions as contained in Section 4, Sections 9 to 18 and Section 22 in so far as and to the extent to which they are not expressly excluded by such special or local Law (clause [a] and the remaining provisions of this Act shall not apply (clause [b]) and therefore in the old section 29, Section 5 which provides for extension of prescribed period in certain cases, was not applicable in such a case being expressly barred by clause [b]. Whereas if one examines sub section 2 of section 29 of the New Act, it clearly makes applicable the provisions contained in sections 4 to 24 (inclusive) only in so far as and to the extent to which they are not expressly applicable by such special or local law. Therefore by virtue of Section 29 of the New Act, section 5 of the Limitation Act of 1963 would be applicable even while entertaining the appeal against acquittal filed beyond the prescribed period under sub section 5 of section 378 of Cr.P.C. as the said provision does not expressly exclude the application of section 5.

15. In the case of Manguram .vrs. Municipal Corporation, Delhi A.I.R. 1976 SC 105, the Supreme Court had an occasion to examine the issue and it held as under :

"There is an important departure made by the Limitation Act, 1963 in so far as the provisions contained in Section 29, sub-section (2) is concerned. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by section 29, sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. The time limit of sixty days laid down in sub-section (4) of Section 417, Criminal P.C. (1898) is a special law of limitation and there is nothing in this special law which expressly excludes the applicability of Section 5, Limitation Act. 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 Sec. 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, Sec.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-s(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."

16. On scrutiny of the various authorities on this point it is now well settled that the earlier view taken by the Supreme Court in case of Kaushalya Rani holding that old section 417 (4) of Cr.P.C. was a 'special law' within the meaning of section 29(2) of the Limitation Act, 1908 and that, accordingly Section 5 of the Act would not be invoked in cases applying old section 417(4). But section 29(2) or the Limitation Act, itself has been changed in the Limitation Act 1963, according to which the application of Section 5 cannot be excluded unless it is expressly excluded by such special law. Now under section 378(5) of the new Code of Criminal Procedure or in any other provisions there of there is no express provision excluding the application of Section 5 of the Limitation Act, hence, this provision can be invoked in order to get the benefit of extension of prescribed period of limitation, and the Court can admit an appeal or an application after the expiry of the prescribed period of limitation on sufficient cause being shown for the delay.

17. This Court therefore finds that the impugned order deserves to be quashed and set aside, and also proposes to examine whether the applicant/husband has made out sufficient cause for condonation of delay in filing the application, rather than sending the matter back for such consideration.

18. In his application, the applicant has stated that upon receipt of the certified copy, the applicant has handed over the certified copy to the clerk of the counsel, under an impression that it will be handed over to the counsel representing him for preferring the revision. But the said clerk did not do so, which resulted in non filing of the revision. The applicant did make queries with the counsel, but he was informed that the certified copy was not traceable and it is only when the certified copy is traced out he filed a revision application which was after delay of 19 days. The application was on affidavit. The learned Additional Sessions Judge, even without issuing notice to the other side passed the impugned order, therefore, when the matter was taken up by this Court, a notice to non-applicants i.e. wife and the child of the applicant/husband was served prior to admission as well as on merits, but none appeared for them therefore, this Court appointed Ms. Udeshi, to represent the case of the non-applicants. She has tried her best to assist the court in justifying the impugned order. As regards reasons for condoning the delay is concerned, as the non-applicant wife has not responded to the notice inspite of the sufficient opportunity being given, Ms. Udeshi is not in a position to make any submission on the point of sufficient cause. Mr. Chandurkar, the learned counsel appearing for the applicant/husband submitted that the delay may be condoned by imposing certain conditions and costs and this will not in any manner prejudice the non-applicant wife. In the facts and circumstances of this case, this Court finds that there is no reason to disbelieve the applicant who had obtained the certified copy of the order, handed it over to the clerk of the counsel, so that the revision can be preferred in the matter, and it is for the reason that the certified copy was mis placed in the office of his Advocate, it cannot be said that the delay was due to negligence or inaction on the part of the applicant, and therefore, this Court is inclined to condone the delay on imposing certain conditions.

19. The Criminal application is allowed. The delay in filing the Criminal Revision Application before the Court of Sessions is condoned, on condition that the applicant shall deposit all arrears of maintenance and shall continue to pay maintenance by depositing the same from January, 2002 on or before 10th of each month. On the applicant's failure to do so the application would stand rejected. The revision application be taken up by the Additional Sessions Judge, for hearing after there is compliance of the conditions imposed by this Court in allowing the application for condonation of delay. The applicant shall also pay Rs.500/- as costs to the non-applicants by depositing the same in this Court. On such deposit being made, Ms. Udeshi learned Counsel for the non-applicants,(Appointed) is entitled to withdraw the same.

20. Rule made absolute in the aforesaid terms.

Application allowed.