Lala Ram Vs. Hari Ram  INSC 300
(17 October 1969)
17/10/1969 SIKRI, S.M.
REDDY, P. JAGANMOHAN
CITATION: 1970 AIR 1093 1970 SCR (2) 898 1969
SCC (3) 173
CITATOR INFO :
R 1974 SC 480 (14,15)
Code of Criminal Procedure, 1898, s.
417(4)-If prescribes a period of Limitation.
Words and Phrases-Code of Criminal Procedure,
1898, s.417 (4)--"Entertain", meaning of.
An application for leave to appeal to the
High Court under s. 417(3) Code of Criminal Procedure against an order of
acquittal by a Magistrate dated August 31, 1965 was filed on November 1, 1965.
It was claimed that two days were necessary for obtaining the certified copy of
the order of the Magistrate. The application would be in time if these two days
were deducted. The High Court accepted the appeal and convicted the appellant.
In appeal to this Court against his conviction the appellant contended that the
period of 60 days mentioned in s. 417(4) was not a period of limitation within
the meaning of s. 12 of the Limitation Act and that the sub-section barred the
jurisdiction of the High Court to deal with the application if a period of 60
days had expired from the date of the order of acquittal.
HELD : The application under s. 417(3) to the
High Court was within time.
Section 417(4) itself prescribes a period of
limitation; it was open to the legislature to prescribe a period of limitation
in the code itself. In the context of s. 417(4) the word "entertain"
means "file or receive by the court" and it has no reference to the
actual hearing of the application for leave to appeal; otherwise the result
would be that in many cases applications for leave to appeal would be barred
because the applications have not been put up for hearing before the High Court
within sixty days of the order of acquittal. [901 D-F] Kaushalya Rani v. Gopal
Singh,  4 S.C.R. 982, 987, Anjanabai v. Yeshwantrao Daplatrao Dudhe,
I.L.R. (1961) Bom.
135, 137 and Lakshmi Rattan Engineering Works
v. Asstt. Commissioner Sales Tax,  1 S.C.R. 505, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 191 of 1967.
Appeal by special leave from the judgment and
order dated March 14, 1967 of the Rajasthan High Court in Criminal Appeal No.
720 of 1965.
B. D. Sharma, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by
Sikri, J. Hari Ram, respondent, filed a complaint against Lala Ram, appellant,
alleging that Lala Ram had attacked him 899 with a Kassi on June 10, 1964, at
about 6 p.m. Poonaram, who was standing there prevented the blow from falling
on Hari Ram by receiving it on his hand. The respondent, however, made a second
attack and inflicted an injury on the left shoulder of Hari Ram. Hari Ram and
Poonaram got themselves examined by the Civil Assistant Surgeon of the city and
the injury report was submitted alongwith the complaint.
The learned Magistrate acquitted the accused.
Hari Ram filed an application under s. 417(3) of the Criminal Procedure Code
for leave to appeal against the order of the Magistrate. Leave was granted by
the High Court, and thereupon Hari Ram filed the appeal. The High Court
accepted the appeal and convicted the appellant, Lala Ram, under s. 324,
I.P.C., and sentenced him to four months' rigorous imprisonment.
The attention of the High Court was not drawn
to the Probation of Offenders Act, 1958, during the hearing of the a peal but
subsequent to the delivery of the judgment an application was filed under s.
561-A, Cr. P.C., read with ss. 3, 4 and 6 of the Probation of Offenders Act. It
was alleged in the application that the appellant was 20 years old and the High
Court should have given him the benefit of the Probation of the Offenders Act.
The High Court did not accede to this application. The appellant having
obtained special leave from this Court, the appeal is now before us.
The main contention of law which arises
before us is whether the appeal to the High Court was filed within limitation.
The application for leave to appeal to the
High Court under S. 417 (3) against the order of acquittal of the Magistrate,
dated August 31, 1965, was filed on November 1, 1965. It was claimed by the
applicant that two days were necessary for obtaining the certified copy of the
order of the Magistrate and the applicant was entitled to deduct these two days
taken for obtaining the certified copy of the order of the Magistrate. There is
no doubt that the application would be in time, if these two days are deducted.
But the learned counsel for the appellant contends that s. 12(2) of the Indian
Limitation Act is not attracted to applications under s. 417(3), Cr. P.C.
Section 417(3) and (4) read as follows "417. (1) Subject to the provisions
of subsection (5), the, State Government may, in any ease, direct the Public
Prosecutor to present an appeal to the High Court from an original or appellate
order of acquittal passed by any Court other than a, High Court.
(3) If such an order of acquittal is passed
in any case instituted upon complaint and the High Court, on L5SupCI/70-12 900
an application made to it by the complainant in this behalf, grants special
leave to appeal from the order of acquittal, the complainant may present such
an appeal to the High Court.
(4) No application under sub-section (3) for
the grant of special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of sixty days-from the date of
that order of acquittal......
It is contended that the period of 60 days
mentioned in s.417(4) is not a period of limitation within the meaning of
s.12(2) of the Limitation Act. Section 12(2) of the Limitation Act reads as
"12(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." The learned counsel says that what s.417(4) provides is a
prohibition and it bars the jurisdiction of the High Court to deal with the
application if a period of 60 days has expired from the date of the order of
In our opinion there is no force in these
contentions. In Kaushalya Rani v. Gopal Singh(1) this Court, while dealing with
the question whether s.5 of the Limitation Act applies to applications under
s.417(3) described this period of 60 days mentioned in s.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 specially
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-s.
(4) of s. 417 of the Co-de is a especial 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." (1)  4 S.C.R. 982; 987.
901 This Court approved the judgment of the
Full Bench of the Bombay High Court in Anjanabai v. Yashwantrao Dauletrao
Dudhe(l). The Full Bench of the Bombay High Court had observed in Anjanabai's
case "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
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
s.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 s.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 s.417 (4) itself prescribes a period of
limitation for an application to be made under s.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 s.417(3), Cr. P.C.; it was open to it
to prescribe a period of limitation in the Code itself.
The learned counsel also suggests that the
word "entertain" which occurs in s.417 (4) means "to deal with
or hear" and in this connection he relies on the judgment of this Court in
Lakshmi Rattan Engineering Works v. Asstt. Commissioner Sales Tax (2). It seems
to us that in this context "entertain" means "file or received
by the Court" and it has no reference to the actual hearing of the
application for leave to appeal; otherwise the result would be that in many
cases applications for leave to appeal would be barred because the applications
have not been put up for hearing before the High Court within 60 days of the
order of acquittal.
In the result we hold that the application
under s.417(3) to the High Court was within time.
The learned counsel then contends that the
High Court should not have interfered with the order of acquittal passed by the
Magistrate. He has taken us through the evidence of Poonaram who was injured
and the statement of P.W. 3, Ananda, who was present and who seems to be an
independent witness. We agree (1) I.L.R. Bom.135,'137.
(2)  1. S.C.R 505.
902 with the High Court that the Magistrate
was not entitled to reject the evidence of the eye-witnessess. No reason has
been shown to us why we should interfere with the finding of fact arrived at by
the High Court.
The learned counsel further contends that no
offence was committed because the accused had a right of private defence of
property. Assuming that he had a right of private defence of property he had
ample opportunity of having recourse to the authorities and there was no need
for the appellant to have taken the law into his own hands.
The only question that remains now is the
question whether the benefit of s.6 of the Probation of Offenders Act should be
extended to the appellant. In spite of opportunity being given no good proof
has been furnished to establish that the appellant was at the relevant time
under the age of 21 years.
For the aforesaid reasons the appeal fails
and is dismissed.
R.K.P.S. Appeal dismissed.