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 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 sub-
section (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
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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 follows :
"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
acquittal.
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 ment ioned 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 con-
clusion 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) [1964] 4 S.C.R. 982; 987. 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 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 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. [1961]Bom.135,’137. (2) [1968] 1. S.C.R 505. 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.