CHHANGANI, J - (1.) THIS is an application by the Municipal Council, Ganganagar, for special leave to appeal under sec. 417 sub-sec. (3), Cr. P. C. and is directed against the appellate judgment of the Sessions Judge, Ganganagar, dated 23rd February, 1963. The learned Sessions Judge by that order accepted the respondent's appeal and set aside his conviction under sec. 203, Rajasthan Municipalities Act, 1959 principally on the ground that the complaint was filed after the expiry of six months of the commission of the alleged Act which is alleged to be an offence.
(2.) THE application for leave to appeal has been opposed by the accused-respondent and amongst other grounds a preliminary objection has been taken that the application is barred by limitation. It will be proper to first take up the preliminary objection. The facts necessary to be stated for the decision of the preliminary objection are as follows - The order in appeal was passed by the Sessions Judge on 23rd February, 1963 and the application for leave to appeal was presented on 3rd May, 1963. The appeal was thus presented after the expiry of 60 days and was late by nine days. The explanation for the delay is that the petitioner put an application for a copy of the order of acquittal on 6. 3. 1963 and the copy was ready on 14th March, 1963 and was delivered to the applicant on that very day, and if this period of nine days taken in obtaining copy is excluded, the application is certainly within limitation. Learned counsel for the parties joined a serious controversy on the question whether the period taken in obtaining copy should be excluded or not while computing the period of 60 days under sec. 417 sub-sec. 4 Cr. P. C. Shri Jain on behalf of the respondent contended (1) firstly, that the words of sec. 417 sub-sec. 4, Cr. P. C. clearly show that the intention of the legislature was that applications for special leave to appeal must be made within sixty days of the order of acquittal and the period of limitation can in no case be extended; and (2) secondly, that sec. 12 of the Limitation Act cannot, on a consideration of its language, be applicable to applications for special leave to appeal and that its operation should be confined to cases where the period of limitation is prescribed by the schedule of the Limitation Act. On the other hand, the learned counsel for the petitioner has relied upon Municipal Board, Lucknow Vs. Bhagwandas (1) in support of the contention that in computing the period under sec. 417 sub-sec. 4, Cr. P. C. the period taken in obtaining copy of the order sought to be appealed against can be excluded. The learned counsel for the parties cited a number of cases where the applicability of sec. 5 of the Limitation Act in connection with the determination of the question of the limitation for applications under sec. 417, sub-sec. 4, Cr. P. C. was considered. Taking up the first contention, I may state that the Allahabad High Court in Mohammad Ibrahim vs. Gopilal (2) no doubt emphasised the language of sec. 417 sub-sec. (4), Criminal P. C. and made some observations which lend support to the contention of Mr. Jain. That was, however, a case where the controversy was with regard to the applicability of sec. 5 and not sec. 12. The question as to the applicability of sec. 12 directly arose in Municipal Board, Lucknow vs. Bhagwan Das (1) and a Bench of the Allahabad High Court after examining the provisions of sec. 29 (2) of the Limitation Act and referring to Jijibhoy N. Surty vs. T. S. Chettyar Firm (3) held that the time taken in obtaining a copy of the judgment of acquittal should be excluded in computing the period of limitation of sixty days required for applications for leave to appeal against acquittal. The learned Judges referred to the earlier case Mohammad Ibrahim vs. Gopi Lal (2) and doubted the correctness of the decision in that case. They quoted with approval the following observations of the Andhra Pradesh High Court in In re Parchuri Adeshamma (4) : - "the Code of Criminal Procedure is not a special law but is a general law relating to procedure. Therefore sec. 5 of the Limitation Act applies to an application for special leave made after the period prescribed by sub-sec. (4) of sec. 417 of the Criminal Procedure Code and the High Court can in an appropriate case, extend that period. " and summed the position in the following words : - "in our view Mohd. Ibrahim's case Cri. Misc. Appln. No. 161 of 1957 : (AIR 1958 All. 691) may require further consideration but in asmuch as we are not concerned with sec. 5 of the Limitation Act directly but with sec. 12 (2) it is not necessary to refer the matter to a fuller Bench. " Later on Mohammad Ibrahim vs. Gopilal (2) was specifically over-ruled by a Full Bench of the Court in Rajjan Lal vs. State (5 ). However, with regard to the applicability of sec. 5 of the Limitation Act to applications under sec. 417, sub-sec. (4), Criminal P. C. the law cannot be said to be settled. There is still divergence of judicial opinion. A Full Bench of the Bombay High Court in Anjanabai Yeshwant Rao vs. Yeshwant Rao Daulat Rao Dundhe (6), the Punjab High Court in Mst. Koshalya Rani W/o Gopal Singh vs. Gopal Singh S/o Jhanda Singh (7) and the Gujarat High Court in State vs. Bai Rani (8) have held that sec. 5 of the Limitation Act cannot be applicable to applications under sec. 417 sub-sec. (4), Criminal P. C. On the other hand, a Full Bench of the Allahabad High Court in Rajjan Lal vs. State (5 ). Putchalpall Venkata Subbareddi vs. Duvvuru Papireddi (8) and re-Vishwanathan Chettiar (9) have taken a contrary view. The view holding that sec. 5 is not applicable has adopted the reasoning that sec. 417 Criminal P. C. is a special law and that it prescribes a period of limitation different from the period prescribed by the schedule of the Limitation Act and consequently in view of the provisions of sec. 29 sub-sec. 2, sec. 5 of the Limitation Act cannot be applied to cases under the special law. The contrary view is based upon the reasoning that sec. 417 of the Criminal P. C. cannot be considered as a special law but should be treated as a general law. It is unnecessary for me in this case to take any decision as to the applicability of sec. 5, for the controversy in this behalf has no bearing on the question of applicability of sec. 12 of the Limitation Act. It will be proper at this stage to read sec. 29 (2) of the Limitation Act which runs as follows : - "29 (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of sec. 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of the determining any period of limitation prescribed for any suit, appeal or application by any special or local law : (a) the provisions contained in sec. 4, sec. 9 to 18 and sec. 22 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. " It is clear from the perusal of the section quoted above that even where special or local law prescribes a period of limitation different from the one prescribed under the schedule sec. 4 and 9 to 18 which include sec. 12 are applicable unless it is excluded by the special or local law, though sec. 5 of the Limitation Act has not been held applicable. Even if sec. 417 sub sec. 4 of the Criminal P. C. be treated as a special law prescribing a different period of limitation, yet the applicability of sec. 12 of the Limitation Act is not excluded inasmuch as there is no express provision in sec. 417 sub-sec. 4 Criminal P. C. to exclude the applicability of sec. 4 and sec. 9 to 18 and 22 of the Limitation Act. It should also be borne in mind that an applicant for special leave to appeal is expected and required to examine the order of acquittal sought to be challenged for a proper drafting of the application for leave to appeal. I may also note that the practice in this Court is that the application under sec. 417 sub-sec. (3) is accompanied by a copy of the order sought to be challenged. It being so, I must hold on a consideration of the basic principle underlying the law of limitation that a party applying for leave to appeal should be entitled to the exclusion of the period taken in obtaining copies of the order for acquittal. This was the view taken by the Allahabad High Court in a case noticed earlier and I respectfully agree with it. The second contention of the learned counsel for the opposite party that sec. 12 cannot be invoked in regard to applications under sec, 417 sub-sec. (4) Criminal P. C. and that sec. 12 is applicable in cases where the limitation is prescribed by the Limitation Act is also without any substance. The expression "leave to appeal" must be deemed to include applications for special leave to appeal and there is nothing in the language of sec. 12 that it's operation should be limited to the cases where the limitation is prescribed by the Limitation Act. In Rajjanlal Vs. State (5) dealing with sec. 5 of the Limitation Act which is worded similarly as sec. 12, the Full Bench of the Allahabad High Court made the following observations - "it is not contended, nor could it be successfully contended, that the provisions of sec. 5 of the Limitation Act apply to an appeal or an application for a review of judgment or for leave to appeal for which a period of limitation is prescribed in the third column of the first schedule to that Act. It is the settled law of this Court that unless the word 'prescribed' in the Limitation Act is qualified by appropriate words it means prescribed by any law. " The observations made with regard to sec. 5 applies equally to sec. 12 of the Limitation Act. Thus, both on a consideration of the relevant provisions of law and the case law the only proper and reasonable conclusion to arrive at is that sec. 12 of the Limitation Act is applicable to application under sec. 417 sub-sec. (3) Criminal P. . C. and that an applicant for special leave is entitled to exclude the period taken in, obtaining the copy sought to be appealed against. There are no merits in the preliminary objection relating to limitation. It was next contended by Mr. Jain that the petitioner had not submitted a separate memo of appeal along with his application for leave to appeal. The question of submitting a memorandum of appeal can arise only after the respondent contended that non submission of a memorandum of appeal might have some bearing on the question of limitation with regard to the appeal itself. I need not decide this point at this stage. It will be open to the respondent to canvass this point at the time of the hearing of the appeal. I have considered the application for special leave to appeal and have gone through the order appealed against and heard to some extent the learned counsel for the parties and in all the circumstances of the case I consider that it is a fit case for grant of special leave to appeal as an important question of law requires to be determined. The application is allowed and the leave to appeal is granted. . ;