Judgment

SINHA, C.J.I. : In this appeal, on a certificate of fitness granted by the Punjab High Court, the only question for determination is whether the provisions of S. 5 of the Limitation Act (IX of 1908) apply to an application for special leave to appeal, from an order of acquittal, under sub-s. (3) of S. 417 of the Code of Criminal Procedure (to be hereinafter referred to as the Code.) The certificate was granted by the High Court "because there is a considerable conflict of opinion in the various High Courts"

2. In this case we are not concerned with the factual aspect of the controversy between the parties. It is not, therefore, necessary to set out in any detail the facts of that controversy. It is enough to state that the respondent was committed to the Court of Sessions to stand his trail under S. 493, or in the alternative under S. 495, of the Indian Penal code, on the charge that he had, by deceit, caused the appellant who was not lawfully married to him to believe that she was so married, and in that belief had sexual intercourse with her. In the alternative, it was alleged that he married the appellant after concealing the fact that he was already married.

3. The prosecution was launched by a petition of complaint filed by the appellant before the Magistrate. The respondent was tried by the Additional Sessions Judge, Gurdaspur, who by his judgment dated December 31, 1959, acquitted him on the ground that the prosecution had failed to prove that there was a marriage between the complainant and the accused. The appellant filed an application on April 22, 1960, very much later than 60 days from the date of the order of acquittal, for special leave to appeal from that order, under S. 417 (3) of the Code. In a note appended to the application it was stated "that the time in filing the present petition might be excluded in view of the fact that the District Magistrate, Gurdaspur, moved the Advocate-General in filing the appeal under S. 417 Criminal Procedure Code which if files would have obviated the necessity of filing this petition. But the States Government declined to file appeal and the intimation to this effect was received on April 1, 1960. The original letter is attached herewith; from this date, it is within time. On this application, a Division Bench of the High Court passed the order " Admitted", on September 1, 1960. When the appeal was placed for hearing before Falshaw and Grover, JJ., a preliminary objection was raised on behalf of the respondent that the appeal was out of time. While it was admitted on behalf of the appellant that the appeal was filed long after the period prescribed by sub-sec. (4) of S. 417 of the Code, it was argued that the delay could be condoned under S. 5 of the Limitation Act, and that the delay had been so condoned by the Bench when the appeal was admitted.

4. The Bench pointed out that as a matter of fact no application had been made by the appellant for extension of the period of limitation for filing the petition for special leave. The Bench further held that it could not accede to the contention that the Bench while admitting the appeal had condoned the delay. The Court, on an elaborate examination of the provisions of the Code, and of the Limitation Act, came to the conclusion that the bar of time prescribed by sub-sec. (4)of S. 417 was a special law with in the meaning of S. 29(2) of the Limitation Act and that, therefore, S. 5 of the Limitation Act would not be available to the appellant for condoning the admitted delay in filing the application for special leave. The High Court noticed a number of decisions of the different High Courts and preferred to accept the view that the provisions of sub-sec. (4) of S. 417 of the Code were in the nature of a special law though the Code as a whole was a general law. In that view of the matter, the High Court dismissed the appeal on the ground that the application for special leave to appeal was barred by time. The appellant appl