( 1 ) THE complainant in S. T. No. 4168 of 1999, filed under Sections 341 and 323 read with section 34 of the Indian Penal Code, was absent when the case was called before the judicial First Class Magistrate, thiruvananthapuram. All the seven accused in the case were present. The application of the complainant filed by the concerned counsel was rejected. The accused were acquitted under Section 351 (3) Cr. P. C

( 2 ) THE petitioner came up before this court by filing the above application for condoning the delay of 1026 days in preferring the Special Leave Petition under Section 5 of the Limitation Act.

( 3 ) THE respondents/accused appeared. They have filed a counter. The main contentions are two fold, viz. , Section 378 (5) of the Code of Criminal Procedure being a self contained provision, Sections of the limitation Act is inapplicable and the facts pleaded in the affidavit of the Advocate alone cannot be accepted and acted upon to condone the very long delay of 1026 days.

( 4 ) LEARNED counsel for the petitioner submitted that because the Clerk, who was working within him, had left the office and also due to repeated catastrophe in his family life, he was unable to file the Special Leave petition in time, that caused the delay, that the Criminal Procedure Code is not expressly excluding the application of Section 5 of the limitation Act and hence the same may be applied and the delay condoned.

( 5 ) LEARNED Counsel for the petitioner had relied on Mukri Gopalan v. C. P. Aboobacker and argued that though the Criminal procedure Code is a special provision, there being no express exclusion of the application of Section 5 read with Section 29 (2) of the limitation Act, as amended in 1963, section 5 may be applied and delay condoned. Mukri Gopalan s case was based on Kerala Buildings (Lease and Rent Control) act. Section 18 of the Rent Control Act was in question. The High Court of Kerala held that the Appellate Authority being a persona designata, under the Rent Control Act, section 5 of the Limitation Act is inapplicable. That position had been overruled by the apex Court. Accordingly, Section 5 had been made applicable even to the Kerala Rent control Act.

( 6 ) THE learned counsel forthe respondent/ accused had placed reliance on Kaushalya rani v. Gopal Singh. After discussing about the General law, Special law and application of Section 5 of the Limitation Act to Special leave Petitions under Code of Criminal procedure, the Court held that:". . . . . . . . . . IT is a general law in the sense that it lays down the general rule governing such relationship, but it may contain special provisions relating to bar of time, in specified cases different from the general law of limitation. 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 law regulating the procedure for the trial of criminal cases, generally; but if it lays down any bar of time in respect of special cases in special circumstances like those contemplated by section 417 (3) and (4), read together, it will be special law contained within the general law. As the Limitation Act has not defined special law, it is neither necessary nor expedient to attempt a definition. Thus the Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act, but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of limitation. . . . . . . ". In paragraph 8, the Apex Court concluded thus:". . . . . . . . . IN our opinion, therefore, the provisions of the code supplemented by the provisions of Section 29 (2) o