ORDER : This is an application under Section 5 of the Limitation Act. It prays that the delay in filing the petition for Special leave to appeal under S. 417(3), Cr. P.C. be condoned.

2. Learned counsel for the opposite parties has contended that S. 5 of the Limitation Act is inapplicable to a petition for leave under S. 417(3), Cr. P.C. and as such the application is not maintainable.

3. Under the Limitation Act of 1908 there was a difference of opinion in the various High Courts as to the interpretation of S. 29(2) of that Limitation Act. Some High Courts including the majority of a Full Bench of this High Court took the view that the Criminal Procedure Code was not a local or special law within the meaning of S. 29 of the Limitation Act. Other High Courts held to the contrary. The Supreme Court in Kaushalya Rani v. Gopal Singh, AIR 1964 SC 260, settled the controversy and held that S. 417(3) and (4) of the Criminal Procedure Code was a special law and that S. 29(2) did apply to petitions for leave to appeal under S. 417(3), Cr. P.C. The provisions of S. 29 of the new Limitation Act No. 36 of 1963, are, from this point of view similar to the corresponding provisions of the earlier Act. The same interpretation would be applicable to it.

4. The second point which was the centre of controversy amongst the various High Courts related to the interpretation of the word "different" in the opening part of S. 29(2), the material part whereof rims as follows :-

"Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule. ....."

5. One set of authorities held that the word 'different' covers a situation only where the Limitation Act does prescribe a period of limitation for the particular appeal or matter, and the special or local law prescribes a different period therefor.

6. A second series of authorities lay down that in a situation where the Limitation Act does not prescribe any time limit, but the special law does prescribe a time limit to it, the special law will be deemed to be providing for a different period. The Supreme Court has settled this controversy as well. In Vidyacharan v. Khubchand, AIR 1964 SC 1099, the majority of opinion upheld the latter view; per B.P. Sinha, C.J. and Ayyangar, J. (Paragraph 5) and Subba Rao, J. (paragraphs 23 and 24). It was held that S. 29(2) would apply even to it case where a difference between the special law and the Limitation Act arose by an omission to provide for a period of limitation to a particular proceeding, by the Limitation Act.

7. Learned counsel for the opposite parties next submitted that the applicability of S. 5 of the Limitation Act is "expressly excluded." Section 29(2) of the current Limitation Act States that the provisions contained in Ss. 4 to 24 (inclusive) shall apply only in so far as and to the extent to which they are not 'expressly excluded' by such special or local law. The learned counsel urges that S. 417(4) Cr. P.C. which is the special law, expressly excludes the applicability of Ss. 4 to 24, Limitation Act. He urges that in S. 417(4) there is a clear mandate that no application for grant of special leave to appeal from the order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal; and that ibis provision amounts to a direct prohibition. By condoning the delay under S. 5 the Court shall be entertaining the application after the expiry of the prescribed period and be contravening this mandatory provision. In this sense the application of S. 5 Limitation Act is said to be "expressly" excluded. The argument thus presented is, no doubt, attractive but must be negatived. In Kaushalya Rani's case, AIR 1964 SC 260, the Supreme Court held that S. 29(2) would apply to an application for special leave to appeals under S. 417(3) Cr. P.C. This decision Implies that their Lordships did not countenanc

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