TMI Blog2001 (12) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... y filing an application on 16-11-1999, which came to be registered as Misc. Criminal Application No. 168/1999. Vide judgment and order dated 1-8-2000 the learned Judicial Magistrate, First Class, at Anjangaon Surji allowed the application for grant of maintenance and ordered the husband to pay ₹ 600/- per month to the wife towards her maintenance and ₹ 300/- per month to the minor daughter from the date of application and also awarded costs of ₹ 500/-. The applicant / husband therefore, challenged the said order by preferring Criminal Revision application under Section 397 Criminal Procedure Code before the Additional Sessions Judge, on 29-11-2000, which was beyond the prescribed period of limitation, and therefore, an application for condonation of delay under Section 5 of the Limitation Act, was also filed. It is this application which came to be rejected by the impugned order, which reads as under: The applicant has filed instant application under Section 5 of the Limitation Act to condone delay of 19 days caused in preferring revision, against the order dated 1-8-2000 passed in Cri. Case No. '168/1999 (under Section 125 of the Criminal Procedure Code) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for taking cognizance of certain offences . The provisions of this Chapter are self contained as it specifies exclusion of time in certain cases and also embodies the principle embodied in Section 5 of the Limitation Act, 1963 namely that the aforesaid bar of limitation may be condoned by the court taking cognizance where the delay has been properly explained or it is necessary do so in the interest of justice. Thus there is no scope for invoking any provisions of the Limitation Act, in cases where the provisions of this new Chapter XXXVI of the Code are applicable. Ms. Udeshi, has further submitted that the Code of Criminal Procedure also prescribes for special period of limitation for certain proceedings; for example Section 378(5) which leads to Special Leave to Appeal by complainant under Section 125(3), proviso (i) relating to application for recovery of maintenance and Section 84(4) for a suit to establish right to property attached, and therefore by virtue of Section 29(2) of the Limitation Act, Section 5 of the said Act would have no application, and therefore the learned Additional Sessions Judge was justified in holding that Section 5 of the Limitation Act in terms do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 405 specifically provide for any period of limitation within which such an application is required to be made. Insofar as the Sessions Judge's power of revision are concerned, the same are provided under Section 399 of the Code, which are co-extensive with those of High Court, and it does not provide for any period of limitation, and therefore one should have no doubt in his mind that the prescribed period of limitation for filing a Criminal Revision Application will be governed by Article 131 of the Limitation Act, and Section 5 of the said Act will enable the court to admit the application after the expiry of period of limitation on sufficient cause being shown for condonation of delay. As the bar of limitation provided under Section 3 of the Limitation Act is to be exercised subject to the provisions contained in Sections 4 to 24 (inclusive) and therefore the view taken by the learned Additional Sessions Judge is without application of mind and contrary to law. 8. Insofar as the contention of Ms, Udeshi, the learned Counsel appearing for the non-applicants, that the Criminal Procedure Code is a special law, as it provides for the period of limitation, also cannot be acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial law which does prescribe a period of limitation different from the period prescribed therefor, by the first schedule to the Limitation Act. Section 5 of the Limitation Act, therefore does not apply to the application under Section 417 (3), Criminal Procedure Code and the delay on the part of the applicant in making the application under Section 417 (3) cannot be condoned under Section 5, Limitation Act . 10. Another is the case of Kaushalya Rani v. Gopal Singh, [1964]4SCR982 , wherein the court examined the issue, and observed as under: The whole Code of Criminal Procedure is indeed a general law regulating the procedure in criminal trials generally, but it may contain provisions specifying a bar of time for particular class of cases which are of a special character. Such a law will be a 'special law' with reference to the law generally governing the subject matter of that kind of relationship. A 'special law', therefore, means a law enacted for special cases in special circumstances, in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. In that sense, the Code is a general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 Section 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 Section 417(4) of the Criminal Procedure Code proscribes 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 Section 417(4) itself prescribes a period of limitation for an application to be made under Section 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 Section 417(3), Criminal Procedure Code; it was open to it to prescribe a period of limitation in the Code itself. 12. Well al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Old Act, it makes very clear that whenever there is a special or local law which prescribes for any suit, appeal or application, a period of limitation different from the period of limitation from first schedule, the provisions of Section 3 shall apply, as if such period is prescribed therefore in that schedule and for the purposes of determining any period of limitation, prescribed for any suit, application or appeal, it is only the provisions as contained in Section 4, Sections 9 to 18 and Section 22 insofar as and to the extent to which they are not. expressly excluded by such special or local Law [Clause (a)] and the remaining provisions of this Act shall not apply [Clause (b)] and therefore in the old Section 29, Section 5 which provides for extension of prescribed period in certain cases, was not applicable in such a case being expressly barred by Clause (b). Whereas if one examines Sub-section 2 of Section 29 of the New Act, it clearly makes applicable the provisions contained in Sections 4 to 24 (inclusive) only insofar as and to the extent to which they are not expressly applicable by such special or local law. Therefore by virtue of Section 29 of the New Act, Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoked in cases applying old Section 417(4). But Section 29(2) of the Limitation Act, itself has been changed in the Limitation Act 1963, according to which the application of Section 5 cannot be excluded unless it is expressly excluded by such special law. Now under Section 378(5) of the new Code of Criminal Procedure or in any other provisions thereof there is no express provision excluding the application of Section 5 of the Limitation Act, hence, this provision can be invoked in order to get the benefit of extension of prescribed period of limitation, and the Court can admit an appeal or an application after the expiry of the prescribed period of limitation on sufficient cause being shown for the delay. 17. This Court therefore finds that the impugned order deserves to be quashed and set aside, and also proposes to examine whether the applicant/husband has made out sufficient cause for condonation of delay in filing the application, rather than sending the matter back for such consideration. 18. In his application, the applicant has stated that upon receipt of the certified copy, the applicant has handed over the certified copy to the clerk of the counsel, under an impres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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