Section 417(4) of the Code of Criminal Procedure is a special law within the meaning of Section 29(2) of the Limitation Act and, therefore, Section 5 of the Limitation Act does not apply to an application for leave to appeal under Section 417(4) of the Code of Criminal Procedure.

1. Pursuant to a complaint made by Mst. Kaushiya Rani, Gopal Singh was committed to the court of Session to stand his trial under Section 493 or in trie alternative Section 495, Indian Penal Code, but he was acquitted by the learned Additional Sessions Judge on 31st December 1959. By means of a petition dated 22nd April 1960 the complainant moved this Court under Section 417(3) of the Criminal Procedure Code for leave to appeal against the order of acquittal. A note was appended in that petition to the following effect :

"That the time in filing the present petition might be excluded in view of the fact that the District Magistrate, Gurdaspur, had moved the Advocate-General for filing the appeal under Section 417, Criminal Procedure Code, which if filed would have obviated the necessity of filing this petition. But the State declined to file appeal and the intimation to this effect was received on 1st April 1960. The original letter is attached herewith; from this date it is within time".

A Division Bench consisting of S. B. Capoor and D. K. Mahajan JJ. made an order on 9th June 1960 for summoning the records. On 1st September 1960 the appeal was admitted by them to a hearing.

2. The learned counsel for the respondent has raised a preliminary objection that the appeal is barred by time. Mr. M. R. Mahajan, who appears for the appellant, agrees that the petition for leave to appeal under Section 417 (3) of the Criminal Procedure Code was filed long after the period prescribed by Sub-section (4) of Section 417. That sub-section runs as follows :

"No application under Sub-section (3) for the grant ot 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".

Mr. Mahajan, however, submits that the delay could be condoned under Section 5 of the Limitation Act and has in fact been condoned by the Bench when the appeal was admitted. He has further prayed that in case we are of the view that the Bench has not condoned the delay, we should condone it ourselves inasmuch as after the respondent had been committed to the court of Session, the State became interested in his prosecution and steps were being taken by the District Magistrate of Gurdaspur for filing a State appeal against the order of acquittal. When the State declined to file an appeal and an intimation to that effect was received on 1st April 1960, the present appeal was filed. No application was made by the appellant for extension of the period of limitation for filing the petition for leave and it is difficult to accede to the contention that the Bench while admitting the appeal condoned the delay under that provision. At, any rate, the position taken up by the learned counsel for the respondent is that delay could be or can be condoned only if Section 5 of the Limitation Act applies. According to him, the provision in Section 417(4), Criminal Procedure Code, is a special provision which falls within the expression "special law" in Section 29 (2) of the Limitation Act which would exclude the applicability of Section 5 of that Act.

Our attention has been invited to a judgment of a Full Bench of ihe Bombay Court in Anjanabai V/s. Yeshwantrao, AIR 1961 Bom 154 (FB). The Full Bench, followed the law laid down in the previous Bench decisions of the Bombay Court (Canara Bank Ltd. V/s. Warden Insurance Co., Ltd. AIR 1953 Bom 35, and State V/s. C. N. Raman, AIR 1956 Bom 447) and it was herd that the provision contained in Sub-section (4) of Section 417 of the Criminal Procedure Code is a special provision which applies only to applications made by private parties for leave to appeal from orders of acquittal and is therefore a special law within the meaning of Sub-section (2) of Section 29, Limitation Act. The Full Bench expressed dissent from the contrary view taken in Venkata Subbareddi V/s. Papireddi, (S) AIR 1957 Andh Pra 406 and In re P. Adeshamma, AIR 1958 Andh Pra