M.H. Beg, J. - (1.) THIS is an appeal against acquittal which has come up after obtaining special leave on 10th of July, 1963, under the provisions of Section 417(3), Code of Criminal Procedure. An order condoning the delay in making the application for special leave to appeal had to be passed on 11th February, 1963 as the application for special leave was made beyond time.
(2.) AN application for special leave has to be made within 60 days from the date of the order of acquittal. Section 417(4) is very clear and categorical that no application under Section 417(3) shall be entertained by the High Court after the expiry of 60 days from the order of acquittal. But, a Full Bench of this Court had held, in Rajjan Lal v. State (1) (1960 AWR 535), that this period could be extended by applying Section 5 of the Limitation Act. When, however, the question came up before the Supreme Court of India, their Lordships of the Supreme Court were pleased to hold, in Kaushalya Rani v. Gopal Singh (?) (1964 AWR 454 SC), overruling the view taken in the above mentioned Full Bench decision and approving an earlier Division Bench authority of this Court in Mohd. Ibrahim v. Gopilal (5) (1958 AWR 524), that the express provisions of Section 417(4) constitute a "special law" which must prevail over the general law laid down in Section 5 of the Limitation Act. Their Lordships held at p., 457 Col. 2: Thus, there is a difference between the Limitation Act and the rule laid down in Section 417(4) of the Code in respect of limitation effecting such an application. Section 29(2) is supplemental in its character in so far as it provides for the application of Section 3 to cases which would not come within its view but for this provision. And, for the purposes of determining any period of limitation prescribed by any special law, it has made the provisions of the Limitation Act, referred in Clause (a) of Sub -section (2) of Section 29 applicable to such cases to the extent to which they are not expressly excluded by such special or local law, and Clause (b) of that Sub -section expressly lays down that the remaining provisions of the Limitation Act shall not apply to cases governed by any special or local law. In our opinion, therefore, the provisions of Section 29(2) of the Limitation Act make it clear that Section 5 of the Limitation Act would not apply to any application for special leave to appeal under Section 417 (3) of the Code. When delay in making the Special Leave Application was condoned in the case before me, the unamended provisions of Section 5 of the old Limitation Act were applicable. The amended provisions, or, to be more precise, the provisions of the new Section 5 of the Limitation Act No. 36 of 1963, which came into force on 5th of October, 1963, lay down that "any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the Appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." Therefore, in reply to the preliminary objection by Mr. Sharma to the hearing of this appeal, Mr. Rajeshji Verma argues that the provisions of the new Limitation Act would govern the application which must, in any case, be deemed to be pending now even it the order extending time is deemed to be ineffective and ignored for that reason.
(3.) ON the other hand, Mr. Ramesh Sharma relies on the principle laid down in Pearev Lal v. Solu Gir (4) (1945 AWR 246) by Malik, J. where His Lordship observed: It is clear, therefore, that in the absence of anything to the contrary, if a claim is within limitation according to the old Act on the date when the new Act comes into force and a proceeding is commenced "after the coming into force of the new Act it is the new Act which would govern all decisions on the point of limitation. If, however, the right to sue or the right to apply had already been barred by the provisions of the Limitation Act then in force, then, unless there was something in the latter Act which could be deemed to apply retrospectively to revive claims which had already become barred, the new Act could not be availed of for the purpose of saving limitation.;