IMPORTANT POINT
The period of limitation for moving application by a public servant for grant of special leave to appeal is 6 month as prodded under sub-section (5) of Section 378, Cr. P.C.

JUDGMENT

R.A. Misra, J, - The state has moved this application under section 378 of the Code of Criminal Procedure on 1st of January 1983 for leave to appeal against the order of acquittal passed on 24th of June 82. The Stamp Reporter has reported that the application as well as appeal were within time upto 22nd September 82 and are thus beyond time by 101 days. The learned counsel for the State has made two fold submissions. His first contention is that the application and appeal is within time because the appeal arises out of a case instituted upon a complaint by a public servant, so the period of limitation prescribed, is six months and thus the appeal is within time. His second submission is that in case the period of limitation is taken to be sixty days theft the delay is explained by the affidavit filed in support of the application under section 5 of Limitation Act and the same should be condoned.

2. The application for leave to appeal as well as the memorandum of appeal have been filed on 1st of June 1983 when the court reopened after the winter vacations. It would, therefore, be just in time in case the period of limitation is taken to be six months. The key question which arises for determination therefore is whether the order of acquittal has been passed in a case instituted upon complaint by a public servant.

3. The respondents in the instant case have been prosecuted under section 3 of the Railway Property Unlawful Possession Act 1966 on the basis of complaint Exh. Ka. 17 lodged by Sri Mana Singh S.I., R. P.F., Manipur. It has been contended by the learned counsel for the State that in view of the nature of the provisions of Railway Property Unlawful Possession Act 1966, cases instituted there under are Dot on a police report but on a complaint by a public servant attracting the first clause of Section 38 (5) Cr. P.C. and as such the period of limitation is six months. It would be fruitful at this stage to reproduce sub-clause (5) of Sec. 378 Cr. P. C. It reads as below:

"No application under sub-section (4) for the grant of special leave to appeal from an order of acquittals shall be entertained by the High Court after the expiry of six months. Where the complainant is a public servant, and 60 days in every other case computed from the date of that order of acquittal."

It. therefore, leaves no room for doubt that the period of limitation for moving application for grant of special leave to appeal from an order of acquittal in a case instituted on complaint by public servant is six months and the present application would be well within time if it is held that the case arises out of a complaint instituted by a public servant. Section 3(a) of the Railway Property Unlawful Possession Act provides imprisonment for a term which may extend to five years or a fine or both and in view of the quantum sentence the offence appears to be cognizable but Section 5 of the Act lays down that notwithstanding any thing contained in the Code of Criminal Procedure an offence under this Act shall not be cognizable. It has thus been specifically provided in the Act itself that offences punishable under the Act shall not be cognizable. I therefore have no hesitation in arriving at the conclusion that the offences punishable under the Railway Property Unlawful Possession Act 1966 are not cognizable. It is therefore, clear that in the instant case the complaint filed by the Sub-Inspector under Section 3 of the Act, was of a non-cognizable offence.

4. The fact that the Sub-Inspector who instituted the complaint is a public servant is not questionable. The complainant here is undoubtedly a Police Officer and the complaint has been filed by him as a Police Officer: Section 2(d) defines complaint in following words:

Complaint' means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence, but does not include a Police report