CHHANGANI, J.—This is an appeal by Mst. Dhani on leave granted under sec. 417 sub-sec. (3), Criminal P.C. by this Court, against the order of the First Class Magistrate No. 1, Jodhpur, acquitting the respondent Mst. Gopi of an offence under sec. 323, Indian Penal Code.

2. The respondent has raised a preliminary objection that the appellant was not entitled to the grant of special leave under sec. 417 sub-sec. (3), Criminal P.C. and consequently, she urges that the leave should be revoked and the appeal be dismissed.

3. In appreciating the preliminary objection, it is necessary to set out the following facts—

Appellant filed a complaint against the respondent under sec. 325, Indian Penal Code. The case was, however, registered under sec. Indian Penal Code. On 28th May, 1962 the appellant remained absent and the Magistrate acting under sec. 247, Criminal P.C. acquitted the respondent. The appellant applied for a copy of the order of the Magistrate acquitting the respondent on 27.7.1962 and obtained it on 28.7.1962. Thereafter, he submitted a revision application in this Court on 1.9.1962 challenging the order of acquittal. It was, however, reported by office that the revision did not lie. Thereupon, the appellant submitted an application on 14.9.1962 praying that the revision application be treated as petition for special leave to appeal. It will be noted that the revision application was filed after a period of 96 days. The appellant could have filed an application for leave to appeal within a period of 92 days ; 60 days the prescribed period of limitation plus 32 days being the period occupied in taking copy of the order under challenge. Now, even if the application for special leave to appeal be treated to have been presented on 1.9.1962 when the revision application was filed still it was late by 4 days. On the other hand, if the application for leave to appeal be treated to have been filed on 14.9.1962 when a prayer for converting the revision application into an application for special leave to appeal was made, it was late by 18 days. Faced with this situation the appellant submitted an application for condonation of the delay under sec. 5 of the Limitation Act and a learned Judge of this Court by his order dated 4.4.1963 condoned the delay and further allowed the revision application to be treated as a miscellaneous application for leave to appeal.

4. The counsel for the respondent contends that sec. 417 sub-secs. (3) and (4) Criminal P.C. which provide 60 days period of limitation for filing an application for leave to appeal is a special law and that sec. 5 of the Limitation Act cannot be applicable to applications for special leave to appeal which are governed by the special law.

5. The contention of the learned counsel for the respondent appears to be well founded. It may be mentioned here that the various High Courts in this country had expressed conflicting views on the question of the applicability of sec. 5 of the Limitation Act to applications for special leave to appeal under sec. 417 Criminal P.C. but the law has now been settled by a decision of the Supreme Court reported in Koushalya Rani Vs. Gopal Singh (1). After examining the provisions of sec. 417, Criminal P.C. their Lordships summed up their conclusion in the following words:—

"But in so far as appeal by a private prosecutor is concerned, the legislature was astute to specifically lay down that the foundation for such an appeal should be laid within 60 days from the date of the order of acquittal. In that sense, this rule of 60 days bar is a special law, that is to say, a rule of limitation which is specially provided for in the Code itself, which does not ordinarily provide for a period of limitation for appals or applications."

Their Lordships further held.

"The provisions of the Code supplemented by the provisions of sec. 29(2) of the Limitation Act, make it clear that sec. 5 of the Limitation Act would not apply to an application for special leave to appeal

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