But the State Government declined to file appeal and the intimation to this effect was received on April 1, 1960.
The certificate was granted by the High Court because there is a companysiderable companyflict of opinion in the various High Courts.
When the appeal was placed for hearing before Falshaw and Grover, JJ, a preliminary objection was raised on behalf of the respondent that the appeal was out of time.
It is enough to state that the respondent was companymitted to the Court of Sessions to stand his trial under s. 493, or in the alternative under s. 495, of the Indian Penal Code, on the charge that he had, by deceit, cause the appellant who was number lawfully married to him to believe that she was so married, and in that belief had sexual intercourse with her.
While it was admitted on behalf of the appellant that the appeal was filed long after the period prescribed by sub.
The Bench pointed out that as a matter of fact numberapplication had been made by the appellant for extension of the period of limitation for filing petition for special leave.
In that view of the matter, the High Court dismissed the appeal on the ground that the application for special leave to appeal was barred by time.
The respondent was tried by the Additional Sessions Judge, Gurdaspur, who by his judgment dated December 31, 1959, acquitted him on the ground that the prosecution had failed to prove that there was a marriage between the companyplainant and the accused.
s. 4 of s. 417 of the Code, it was argued that the delay companyld be companydoned under s. 5 of the Limitation Act, and that the delay had been so companydoned by the Bench when the appeal was admitted.
The appellant filed an application on April 22, 1960, very much later than 60 days from the date of the order of acquittal, for special leave to appeal from that order, under s. 417 3 of the Code.
The Court, on an elaborate examination of the provisions of the Code, and of the Limitation Act, came to the companyclusion that the bar of time prescribed by sub s. 4 of s. 417 was a special law within the meaning of s. 29 2 of the Limitation Act, and that, therefore, s. 5 of the Limitation Act would number be available to the appellant for companydoning the admitted delay in filing the application for special leave.
The Bench further held that it companyld number accede to the companytention that the Bench while admitting the appeal had companydoned the delay.
The High Court numbericed a number of decisions of the different High Courts and preferred to accept the view that the provisions of sub s. 4 of s. 417 of the Code were in the nature of a special law though the Code as a whole was a general law.
On this application, a Division Bench of the High Court passed the order Admitted, on September 1, 1960.
The High Court naturally did number go into the merits of the companytroversy.
The original letter is attached herewith from this date, it is within time.
The appellant applied to the High Court and obtained the necessary certificate of fitness and has companye up to this Court on appeal from that order of the High Court.
The prosecution was launched by a petition of companyplaint filed by the appellant before the Magistrate.
Sinha, C.J. In this appeal, on a certificate of fitness granted by the Punjab High Court, the only question for determination is whether the provisions of s. 5 of the Limitation Act 9 of 1908 apply to an application for special leave to appeal, from an order of acquittal, under sub s. 3 of s. 417 of the Code of Criminal Procedure to be hereinafter referred to as the Code .
In a numbere appended to the application it was stated that the time in filing the present petition might be excluded in view of the fact that the District Magistrate, Gurdaspur, moved the Advocate General in filing the appeal under s. 417, Criminal Procedure Code, which if filed would have obviated the necessity of filing this petition.
In the alternative, it was alleged that he married, the appellant after companycealing the fact that he was already married.
