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1990 Supreme(Ori) 441
IN THE HIGH COURT OF ORISSA
V. Gopalaswamy, J.
TOWN SURVEYER - APPELLANT
Versus
SMT. ARNAPURNA PATRA ALIAS ANUSUYA PATRO - RESPONDENT
Miscellaneous Case No. 708 of 1989 in Criminal Miscellaneous Case No. 412 of 1989
Decided On : 14-02-1990
N.K. Misra, for the Appellant; A.S. Naidu, P. Mohanty, A.K. Rath and P.K. Mohapatra, for the Respondent
A Town Surveyer authorised by the Executive Officer, Berhampur Municipality, is a public servant and is entitled to the benefit of the extended period of limitation of six months u/s 378(5), Code of Criminal Procedure.
Headnote:
LIMITATION - SPECIAL LEAVE TO APPEAL - PERIOD OF LIMITATION - PUBLIC SERVANT - TOWN SURVEYOR AUTHORISED BY EXECUTIVE OFFICER, BERHAMPUR MUNICIPALITY - IS A PUBLIC SERVANT - ENTITLED TO BENEFIT OF EXTENDED PERIOD OF LIMITATION OF SIX MONTHS U/S 378(5), CODE OF CRIMINAL PROCEDURE.
Fact of the Case:
The petitioner, Town Surveyer authorised by the Executive Officer, Berhampur Municipality, filed a special leave application against the order of acquittal passed by the Judicial Magistrate, Second Class, Berhampur. The application was filed after a delay of two days beyond the period of limitation prescribed under Section 378(5) of the Code of Criminal Procedure. The petitioner filed a Misc. Case u/s 5 of the Limitation Act for condoning the delay.
Finding of the Court:
The court held that the Town Surveyer authorised by the Executive Officer, Berhampur Municipality, is a public servant and is entitled to the benefit of the extended period of limitation of six months u/s 378(5), Code of Criminal Procedure. The court also held that the decision of the Supreme Court in Municipal Corporation of Delhi v. Jagdish Lal (supra) is not applicable to the facts of the present case.
Issues: Whether the Town Surveyer authorised by the Executive Officer, Berhampur Municipality, is a public servant and is entitled to the benefit of the extended period of limitation of six months u/s 378(5), Code of Criminal Procedure.
Ratio Decidendi: The court relied on the provisions of Section 347 of the Orissa Municipal Act, which provides that the Executive Officer or a person expressly authorised by him can file a complaint case against a person for any offence committed by him under the provisions of the Act. The court also relied on the decision of the Delhi High Court in Delhi Development Authority Vs. K.P. Shankra and Another, which held that both the Delhi Development Authority and the public servant who filed the complaint be considered as complainants.
Final Decision: The court allowed the Misc. Case and condoned the delay in filing the special leave application.
JUDGMENT :
V. Gopalaswamy, J. - The above Misc. Case arises out of Criminal Misc. Case No. 442 of 1989, an application under Sub-sections (4) and (5) of Section 378 of the Code of Criminal Procedure for granting special leave to appeal from the order of acquittal passed by the Judicial Magistrate, Second Class, Berhampur, in 3(a) C. C. No. 316 of 1986, filed by the Town Surveyer authorised by the Executive, Berhampur Municipality, against Smt. Arnapurna Patra alleging that she committed an offence u/s 385-A of the Orissa Municipal Act. According to the complainant-Petitioner the special leave application ought to have been filed on 6-5-1989 (Saturday), but it was filed on 8-5-1989 and as there was delay of two days, he filed the present Misc. Case u/s 5 of the Limitation Act for condoning the delay.
2. The learned Counsel for the opposite party contended, that the assertion of the Petitioner that there was a delay of only two days in filing the special leave application is based on the erroneous assumption that the period of limitation is six months, whereas the period of limitation available to the Petitioner is only sixty days as the complainant in this case is not a public servant and therefore, as the special leave application is filed after inordinate delay, the same is liable to be dismissed.
3. The Town Surveyer authorised by the Executive Officer, Berhampur Municipality, is the complainant and it is he who filed the special leave application. Sub-section (5) of Section 378, Code of Criminal Procedure provides:
( 5) No application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
From the above quoted provision it is clear that when a complainant is a public servant the period of limitation is six months and in every other case the period of limitation is sixty days.
4. That the Town Surveyer is a public servant is not disputed by the learned Counsel for the opposite party. But his contention is that though the Town Surveyer filed the complaint, the Berhampur Municipality must be deemed to be the complainant and as a local authority it cannot have the benefit of the extended period of six months which is allowed only to a public servant. In this context he relied on Municipal Corporation of Delhi Vs. Jagdish Lal and Another and Municipal Corporation of Delhi v. Amrit lal, 1982 Cri. L J. 422 (Delhi High Court).
5. In the above referred Supreme Court case of Jagdish Lal the prosecution was u/s 20 of the Prevention of Food Adulteration Act (P. F. A. Act, for short) for an offence committed within the Delhi Municipal Corporation area. u/s 20 the complaint can be filed either by the Municipal Corporation or by a person authorised by it in that behalf by a general or special order. The relevant facts in that case are Shri S. S. Mathur, Municipal Prosecutor of the Delhi Municipal Corporation, filed a complaint in the Court of the Magistrate, First Class, against the Respondent Jagdish Lal u/s 7 read with Section 16 of the P. F. A. Act. The learned Magistrate acquitted the responde it. The Delhi Municipal Corporation made an application for special leave to appeal against the order of acquittal and the same was granted. The preliminary objection of the Respondent that as Shri S. S. Mathur was the complainant, the appeal could not be filed by the Delhi Municipal Corporation was upheld by the. High Court and the appeal was dismissed. Hence the matter came up before the Supreme Court on appeal by the Delhi Municipal Corporation. The Supreme Court held that in filing the complaint Shri Mathur was not acting on his own personal behalf but was acting as an agent authorised by the Delhi Municipal Corporation to file the complaint and it must, therefore, be deemed in the contemplation of law that the Delhi
