LAKSHMANAN, CJ. - (1.) IN view of the conflicting judgments of this Court in Bhimsen vs. State of Rajasthan (1) and Kunj Bihari Lal and Jagdish vs. State of Rajasthan (2), an order was passed on 3. 12. 1993 in S. B. Criminal Misc. Petition No. 114/93 by Hon'ble Mr. Justice A. K. Mathur (as he then was) referring the matter to the larger bench to resolve the controversy as to whether Sec. 67 of the Rajasthan Excise Act shall prevail as against Sec. 468 Cr. P. C. or not.
(2.) THE above criminal misc. petition was listed before a Division Bench of this Court which dismissed the matter on 14. 2. 2001. Thus, the controversy referred by Hon'ble Mr. Justice A. K. Mathur could not be resolved. A similar controversy is also involved in S. B. Criminal Revision No. 203/2001 which came up for hearing before Hon'ble Mr. Justice N. P. Gupta on 7. 5. 2001. Adopting the reasoning in the reference order dated 3. 12. 1993 in S. B. Criminal Misc. Petition No. 114/93, the learned Judge has directed this matter to be placed before the Chief Justice for constituting a larger bench. When the matter was placed before the Chief Justice, it was placed before regular D. B. and that is how this matter has come up before this bench for consideration of reference. The point of law which arose in this case is as follows:- "whether Sec. 67 of the Rajasthan Excise Act, 1950 which prescribes the limitation of one year for initiating a prosecution will curtail the period of limitation of three years prescribed by Sec. 468 of the Code of Criminal Procedure?" Before proceeding further, it is useful to refer to certain facts of this case so that the case can also be decided on merits instead of remitting the matter back to the learned Single Judge.
(3.) ACCORDING to the petitioner - Gurcharan Singh, a case was foisted against him on 12. 9. 94. The challan of the same was filed in the court at Sri Ganganagar on 11. 9. 95 in absence of the petitioner. The papers were placed before the Additional Chief Judi- cial Magistrate, Sri Karanpur on 5. 12. 95. The learned Magistrate heard the arguments for taking cognizance and he came to the conclusion that the challan has been filed beyond the limitation prescribed by law. He was of the opinion that no cognizance could be taken after one year of the offence and, therefore, on 5. 12. 95, no cognizance could be taken in the matter as the same is beyond the period of limitation. The State Govt. preferred a revision petition which was heard by the Additional Sessions Judge, Sri Karanpur as Criminal Revision Petition no. 45/97. The revisional court by its order dt. 23. 3. 2000 has set aside the order passed by the trial Judge and has come to a conclu- sion that the period of limitation cannot be taken to be one year but it should be considered to be three years and in view of that, he accepted the revision petition and directed the lower court to take cognizance in the matter and proceed further for further proceedings in the matter. The present revision was filed by the petitioner herein. It was submitted that the order passed by the revisional authority is absolutely incorrect, improper and illegal and that the limitation shall be considered to be which is given u/sec. 468 Cr. P. C. and shall not be considered to be a limitation prescribed u/sec. 67 of the Rajasthan Excise Act. It was further submitted that the limitation prescribed in the special law i. e. Rajasthan Excise Act, excludes the prevalence of the general law in such matters namely Code of Criminal Procedure which cannot prevail and the prosecution cannot take benefit of general provision and, therefore, the revisional court cannot direct the trial Magistrate to take cognizance as has been done by the revisional Court. As noticed earlier, when the matter was listed before Hon'ble Mr. Justice A. K. Mathur (as he then was) in S. B. Criminal Misc. Petition No. 114/93, the learned Judge after referring to the decision given in the case of Kunj Bihari Lal and Jagdish vs. State of Rajasthan (supra), decision rendered by Hon'ble Mr. Justice S. C. Agrawal and the decision given in the code of Bhimsen vs. State of Rajasthan (supra) (decision rendered by Hon'ble Mr. Justice B. R. Arora), came to the conclusion that if there is a special enactment on the subject, then that enactment shall prevail as against the general principals. Agrawal J. held that Sec. 67 (c) will be applicable and if any prosecution under the Rajasthan Excise Act has been launched after the period of one year, then such prosecution will stand abated on account of expiry of period of limitation. This judgment, however, was not brought to the notice of Hon'ble Arora J. , who has taken the view that the limitation period prescribed in Cr. P. C. will prevail over limitation prescribed under Sec. 67 of the Rajasthan Excise Act because latter law prevails over earlier law and State Law yield to Central Law. As these two decisions were conflicting with each other, Justice Mathur thought that the conflict can be resolved by referring the matter to a larger bench. It is useful to refer to the opinion expressed by Justice Mathur:- "however, before parting with this case I may also refer to the couple of decisions which has a direct bearing of this question. In the case of JK Cotton Spinning and Weaving Mills Co. Ltd. vs. State of Uttar Pradesh & Ors. (AIR 1961 SC 1170) their lordships has held a view that if there is a special enactment on subject then that enactment shall prevail as against general principles. It was observed by their lordships as under:- "conflict between specific provision and general provision - Specific provision prevails over general provision - General provision applied only to such cases which are not covered by special provision - Rule applies to resolve conflict between different provisions in different statutes as well as in same statute. " While dealing with this aspect their lordships has further observed as under:- "in Pretty vs. Solly, (1959-53 ER 1032) quoted in Craies on Statute Law at P. 206, 6th Ed.) Romelly, M. R. , mentioned the rule thus :- "the rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. " Similar view has also been reiterated by the Division Bench of this Court in the case of M/s. Surajmal Roopchand & Co. Kota vs. State of Rajasthan (1965 RLW 429) there also it was observed as under:- "the maxim Generalia Speciabus Nenderogant is, therefore, attracted and when a special law is found inconsistent with or repugnant to the subsequent law of general nature which is not confined to the subject matter of the special Act, and where there is no express indication of the legislature that the special law will give way to the general law the provisions of the special law will hold the field. Similarly in the case of Pannalal vs. Balbir Singh & Ors. (1969 WLN 284), it has been held as under:- "where there is a conflict between a special provisions and a general provision, the special provision prevails over the general provisions and the latter applies only to such cases which are not covered by the special provisions. " In the case of Paradip Port Trust, Paradip vs. Their Workmen (AIR 1977 SC 36) it was question regarding permitting the advocates whether to permit the advocates before the Industrial Tribunals or not, because Sec. 30 of the Advocates Act authorises a lawyer to appear in any court. While dealing with this aspect, their lordships has observed as under:- "first the Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifically provided for with a clear object in view. This special Act will prevail over the Advocates Act which is a general piece of legislation with regard to the subject matter of appearance of lawyers before all courts, tribunals and other authorities. The Industrial Disputes Act is concerned with representation by legal practitioners under certain conditions only before the authorities mentioned under the Act. Generalia Specialibus non Derogant. As Maxwell puts it. " Therefore, in this view of the conflicts of the two SB decisions it will be proper let these papers may be placed before the Chief Justice for constituting a larger bench so as to resolve this controversy viz. that whether the Sec. 67 of the Rajasthan Excise Act shall prevail as against Sec. 468 Cr. P. C. or not. " ;