Judgment

SIKRI, J.: Hari Ram, respondent, filed a complaint against Lala Ram, appellant, alleging that Lala Ram, appellant, alleging that Lala Ram had attacked him with a Kassi on June 10, 1964, at about 6 p. m. Poonaram, who was standing there prevented the blow from falling on Hari Ram by receiving it on his hand. The respondent, however, made a second attack and inflicted an injury on the left shoulder of Hari Ram. Hari Ram and Poonaram got themselves examined by the Civil Assistant Surgeon of the city and the injury report was submitted along with the complaint.

2. The learned Magistrate acquitted the accused. Hari Ram filed an application under Section 417 (3) of the Criminal Procedure Code for leave to appeal against the order of the Magistrate. Leave was granted by the High Court, and thereupon Hari Ram filed the appeal. The High Court accepted the appeal and convicted the appellant, Lala Ram, under Section 324, I. P. C., and sentenced him to four months rigorous imprisonment.

3. The attention of the High Court was not drawn to the Probation of Offenders Act, 1958, during the hearing of the appeal but subsequent to the delivery of the judgment an application was filed under Section 561-A, Cr. P. C., read with Sections 3, 4 and 6 of the Probation of Offenders Act. It was alleged in the application that the appellant was 20 years old and the High Court should have given him the benefit of the Probation of Offenders Act. The High Court did not accede to this application. The appellant having obtained special leave from this Court, the appeal is now before us.

4. The main contention of law which arises before us is whether the appeal to the High Court was filed within limitation. The application for leave to appeal to the High Court under Section 417 (3) against the order of acquittal of the Magistrate, dated August 31, 1965, was filed on November 1, 1965. It was claimed by the applicant that two days were necessary for obtaining the certified copy of the order of the Magistrate and the applicant was entitled to deduct these two days taken for obtaining the certified copy of the order of the Magistrate. There is no doubt that the application would be in time if these two days are deducted. But the learned counsel for the appellant contends that Section 12 (2) of the Indian Limitation Act is not attracted to applications under Sec. 417 (3), Cr. P. C. Section 417 (3) and (4) read as follows:

"417. (1) Subject to the provisions of sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.

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(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(4) No application under sub-sec. (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal...."

5. It is contended that the period of 60 days mentioned in Section 417 (4) is not a period of limitation within the meaning of Sec. 12 (2) of the Limitation Act. Section 12 (2) of the Limitation Act reads as follows:

"12 (2). In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded."

6. The learned Counsel says that what Section 417 (4) provides is a prohibition and it bars the jurisdiction of the High Court to deal with the application if a period of 60 days has expired from the