2007(1) ALL MR 102
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.H. JOSHI, J.
Malabai W/O. Pralhad Bhoyar Vs. Sumanbai W/O. Narayanrao Dubey
Second Appeal No.366 of 2005
18th August, 2006
Petitioner Counsel: Mr. P. B. JOSHI
Respondent Counsel: Mr. S. S. DESHPANDE
Limitation Act (1963), Art.74 - Suit for malicious prosecution - Limitation begins to run from date of acquittal or discharge - It does not stop running - These is no scheme under Limitation Act for exclusion of any period from computation of limitation the time spent in defending any appeal or revision etc. against the order of acquittal or discharge. (Paras 11 & 12)
Vasantrao Bapurao Chiddarwar Vs. Raghunathrao Anantrao Deshmukh, 1990 Mh.L.J. 491 [Para 5]
Sheikh Mehtab s/o. Sheikh Farid Vs. Balaji s/o. Krishnarao, A.I.R. (33)1946 Nagpur 46 [Para 7,8]
3. The plaintiff and her husband were prosecuted for offences under Section 323 and 448, read with Section 34 of Indian Penal Code, in the Court of Judicial Magistrate, First Class, Malegaon. The trial resulted in acquittal on 7th October, 1995, where the complainant did not step into the witness box. The complainant also fled Criminal Revision Application which was dismissed with costs on 19th July, 1997.
5. First Appellate Court, inter alia, on merits of appeal, and also on the point of limitation, reversed the decree. The learned District Judge placed reliance on reported Judgment of this Court in the case of Vasantrao Bapurao Chiddarwar Vs. Raghunathrao Anantrao Deshmukh [1990 Mh.L.J. 491].
6. In the present Second Appeal, learned Advocate has urged as a Substantial Question of Law the point, namely what is the right construction of the term "when the plaintiff is acquitted or prosecution is otherwise terminated"?
7. Learned Advocate placed reliance on reported Judgment in Sheikh Mehtab s/o. Sheikh Farid Vs. Balaji s/o. Krishnarao and another [A.I.R. (33)1946 Nagpur 46], and urged that when there are two contradictory views of the different Benches of the same Court, the matter calls for reference to a Larger Bench and that it is a fit case for admission and reference to a Larger Bench.
8. Learned Advocate thereafter took this Court through the 1946 Judgment of this Court in case of Sheikh Mehtab [cited supra], to demonstrate that it is a Judgment based on various reported Judgments of Privy Council which operate as a binding precedent and, therefore, the 1946 Judgment in case of Sheikh Mehtab requires to be followed unless this Court feels like referring the matter to a Larger Bench.
9. Learned Advocate further urged that when language of Article 74 is very specific on the term "when plaintiff is acquitted", it would not be competent to judicially legislate for narrowing down the meaning of the said term to the effect "acquitted at the first instance." The latter part of Article 74 prescribing limitation, namely "or the prosecution is otherwise terminated", will have to be construed so as to elongate the period till legitimate termination of proceeding in the event case has resulted into acquittal or discharge, and the matter is carried either by the State or the complainant before the higher Court, as this aspect is well taken care by this Court in Sheikh Mehtab's case.
10. For testing the submissions of learned Advocate, this Court has examined the scheme of Limitation Act,1963. The statute contemplates a possibility where the limitation may start running, yet allowance to the claim by way of right of exclusion of certain periods from limitation is contemplated. These circumstances are provided in Chapter-III between Sections 12 to 26. A contingency, such as filing of Revision or Appeal, does not fit into any of the contingencies for which scheme under Chapter-III of the Limitation Act applies.
11. This Court, therefore, considers it appropriate to respectfully agree with the view taken by this Court in aforesaid case of Vasantrao Chiddarwar as incorporated in Para 10, to the effect that once the starting point of limitation for the accused for a civil action to claim compensation for malicious prosecution begins, it does not thereafter stop. The appeal or Revision does not operate in stopping the clock of limitation or suspending the process of running of limitation. Time once begins to run, save and except provided for by law, the running of limitation cannot be deferred, or kept in abeyance. This Court is, therefore, unable to agree with the submissions that there is a contradictory view of different Benches of this Court.
12. Moreover, referring to other provisions of Limitation Act, there is no scheme for exclusion of any period from computation of limitation the time spent in defending any appeal or revision etc., against an order of acquittal or discharge.