ORDER
R.P. Gupta, J.
1. A composite petition for leave for filing appeal against an order of acquittal dated 25-3-1995 passed in Session Trial No. 207/94 by Sessions Judge, Chhindwara under section 302, Indian Penal Code under Sub-section (3) of section 378, Criminal Procedure Code as well as the appeal there against was filed in this Court on 7-8-1995. As the matter was belated, an application under section 5 of the Limitation Act, 1963 for brevity (hereinafter referred to as 'the Act') for condonation of delay duly accompanied by affidavit, was filed though subsequently.
2. In the present case, question for consideration, as has cropped up, is whether section 5 of the Act would be attracted in cases of appeal against an order of acquittal under section 378 of the Code of Criminal Procedure, 1973 (for brevity hereinafter referred to as 'the New Code'). Section 378 of the New Code is as extracted :
'378. Appeal in case of acquittal - (1) Save as otherwise provided in Sub-section (2) and subject to the provisions of Sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court, or an order of acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of Sub-section (3), to . the High Court form the order of acquittal.
(3) No appeal under Sub-section (1) or Sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under Sub-section (4) for the 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.
(6) If, in any case, the application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from the order of acquittal shall be under Sub-section (1) or under Sub-section (2).'
Section 378 of the New Code provides for two categories of appeals against orders of acquittal: one where the order of acquittal is passed in a case instituted upon complaint; and the other, where the order of acquittal is passed in a case instituted otherwise than upon a complaint.
3. For a comparative look on the provisions providing an appeal against the order of acquittal under section 378 of the New Code and under section 417 of the Code of Criminal Procedure, 1898 (for brevity, hereinafter referred to as 'the Old Code'), Section 417 of the Old Code is as extracted :
'417. (1) Subject to the provisions of Sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (XXV of 1946), the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.
(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grant of special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(4) No application under Sub-section (3) for the grant of 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.
(5) If, in any case, the application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1).'
Where the order of acquittal is passed in a case instituted upon complaint and on an application having been made to the High Court for grant of special leave to appeal, the High Court has granted special leave to appeal, the appeal could be presented. In Sub-section (4) of section 378 of the New Code, the words used for appeal are 'High Court' on an application made to it by the complainant in this behalf, grants special leave to appeal, the complainment may present such as appeal to the High Court. It means no appeal could be presented to High Court in such cases unless special leave is granted, Sub-section (5) provides period of limitation for special leave.
4. The word 'complaint' is defined in Clause (d) of section 2, Criminal Procedure Code which means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but does not include a police report. An explanation is added to the effect that a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. This explanation relates to the non-cognizable offence which are disclosed after investigation and not to the cognizable offences. The present case is not a case instituted upon a complaint.
5. Sub-sections (1) and (2) of section 378 of the New Code provide for filing an appeal to the High Court against an order of acquittal, Sub-section (3) thereof has placed a rider on the filing of the appeal providing that: 'No appeal under Sub-section (1) or Sub-section (2) shall be entertained except with the leave of the High Court.' The Sub-section (3) uses the word 'leave of the High Court' but the same does not require filing of any application for grant of leave to appeal; whereas Sub-section (4) of section 378, Criminal Procedure Code which relates to a case instituted upon a complaint, specifically provides for asking an application to the High Court for grant of special leave to appeal. These two clauses make a clear distinction that in the case of acquittal which is not upon a complaint, no application for leave to appeal is necessary but in a case of acquittal which is instituted upon a complaint, an application for special leave to appeal has to be made to the High Court, which necessarily to be in writing.
Under the old code there was no rider such as obtaining of leave to filing appeal against an order of acquittal passed in a case not instituted upon a complaint. The rider for filing an appeal against an order of acquittal was where such an order was passed in a case instituted upon complaint and the rider was two fold - one in respect of obtaining special leave for filing appeal from the High Court on making to it an application and the other in respect of period of limitation for entertainment of an application for grant of special leave, wherefor period provided for was 60 days from the date of the order of acquittal and on the rejection of the application for special leave, the appeal against acquittal was barred by making specific provision thereunder.
Under the New Code, appeal against an order of acquittal not instituted upon complaint, was made appealable subject to rider under Sub-section (3) of section 378 of grant of leave by the High Court but further for leave or for filing of such appeal Sub-section (1), (2) or (3) has not provided for any period of limitation.
6. Legislature had also made a distinction by using the words 'leave' and 'special leave' and these words have been used in Sub-sections (3) and (4) of section 378 of the New Code respectively. In Sub-section (4) the word 'leave' is qualified by word 'special'. The word 'Special' signifies the special feature that the leave application need to contain specific reasons and the grounds and the application needs to be in writing in the case where there is requirement for obtaining special leave to appeal, the appeal could be presented only after the special leave to appeal is granted.
7. Though the Chapter XXIX of the New Code also provides for regular appeals against conviction which are as of right subject to provisions under section 385 regarding summary dismissal, whereas appeal under section 378 of the New Code are not as of right but are made depended upon grant of leave or special leave, as the case may be, by the High Court. There is a qualitative difference between an appeal against acquittal and the appeal against conviction. Appeal against acquittal is an exception to the general principles of criminal jurisprudence requiring considerable safeguards, as an accused person after acquittal, gets clothed with double presumption regarding his innocence or rather to say that the initial presumption of innocence is strengthened by acquittal.
8. Learned counsel for the State concentrated his argument on Sub-section (5) of section 378 of the New Code submitting that the period of limitation which is provided thereunder for appeal against an order of acquittal is for both category of cases, i.e., the cases instituted upon complaint and the cases instituted otherwise than on complaint, as the period of limitation for one category is six months and for the other, sixty days from the date of the order of acquittal, i.e. for grant of special leave - six months and for leave 60 days.
This argument is sans merit though at the first sight it appeared to be attractive.
Thus, Sub-section (5), on reading in isolation, gives an impression as is the argument advanced by the learned State counsel.
Now, question for interpretation of Sub-section (5) is as to whether this Sub-section provides limitation for leave in both categories of cases i.e. where (i) order of acquittal is not passed in a case instituted upon a complaint and the other where order of acquittal is passed in a case instituted upon a complaint.
9. Sub-section (5) does not relate to leave as required under Sub-section (3) and for appeal under Sub-sections (1) and (2). Under this Sub-section (5) six months' period of limitation is provided for an application under Sub-section (4) for grant of special leave to appeal where the complainant is a public servant and the period of sixty days is provided for special leave to appeal in a case instituted upon a complaint but the same was not by a public servant in discharge of his official duties. So in Sub-section (5) the words 'special leave' are used by the Legislature. The appeal could be presented only after grant of special leave. The word 'special leave' does not find place in Sub-section (3) but it finds place only in Sub-section (4) which also makes it clear that Sub-section (5) is confined only to a case for special leave to appeal against an order of acquittal in a case where complaint is by a public servant or where the complaint is by a person other than a public servant. Neither Sub-section (3) nor Sub-section (5) provides for any period of limitation for appeal. Sub-section (3) of section 378 does not provide limitation for leave to appeal against an order of acquittal.
10. Article 114, Limitation Act provides limitation for appeal from an order of acquittal, and the period of limitation for two categories of appeals as provided is 90 days and 30 days.
Article 114 of the Act is as extracted below :-'114. Appeal from an order of acquittal. -(a) under Sub-section (1) or Ninety days. The date of theSub-section (2) or section 417 of the order appealedCode of Criminal Procedure, 1898 from(5 of 1898)(b) under Sub-section (3) of section 417 Thirty days The date of theof that Code. grant of specialleave.
In this Articles, there is mention of Sub-section (1) and Sub-section (2) of section 417 of old code and the provision has not been amended after coming into force of the New Code. However, with the aid of section 8 of General Clauses Act, 1897, the new provisions under section 378 of the New Code can be read into it. Section 8 of the General Clauses Act speaks that: 'where this Act, or any Central Act or regulation made after the commencement of this Act, repeals and reenacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so reenacted. Here in the present case no different intention appears. Therefore, for an appeal against acquittal either under Sub-section (1), Sub-section (2) or Sub-section (4) of section 378 of the New Code, the period of limitation for appeal would be as provided under Article 114 of the Act.
11. The Schedule to the Limitation Act, 1963 does not provide any limitation either for leave to appeal or special leave to appeal. Even section 378 of the New Code has also not provided any period of limitation either for leave to appeal against acquittal under Sub-sections (1), (2) though it has provided the period of limitation for special leave to appeal under Sub-section (5). Thus, it is clear that the special law i.e. the New Code has not provided any limitation for leave to appeal under Sub-section (3) and the saving clause under section 29 of the Limitation Act would not be attracted. The limitation for an appeal against an order of acquittal under Sub-sections (1) and (2) is undoubtedly 90 days. The question now comes up for consideration is as to what would be the period of limitation for leave to appeal under Sub-section (3) of the New Code.
12. Article 137 of the Act which provides that any other application for which no period of limitation is provided elsewhere in this division, the limitation shall be three years from the date when the right to apply accrues. This would not be attracted here for two reasons; firstly because mention of the words 'any other application'. As has already been stated above, no application for leave to appeal under Sub-section (3) is required. Secondly, this article even otherwise construed, would not be made to have applicability as the period of three years' limitation for leave to appeal would not be a proper interpretation as the same would work in absurdity as the period of limitation for appeal against acquittal under Article 114 is only 90 days. The period for leave to appeal together with appeal under Article 114 of the Act is accepted as ninety days, i.e. the same period within which the appeals could be filed would be proper interpretation and the same finds support from proper consideration and interpretation of statute. The application for leave to appeal under Sub-section (3) would be filed within a period of ninety days' from the date of the order appealed against. Article 137 of the Act cannot be attracted to Sub-section (3) of section 378 of the New Code.
13. No separate application under Sub-section (3) of section 378 of the New Code is necessary for the purpose of leave to appeal, in cases of appeal against an order of acquittal passed in cases not instituted upon a complaint. No period of limitation is provided under Sub-section (3) of section 378 of the New Code for preferring appeal against an order of acquittal passed in a case filed otherwise than on a complaint.
14. Article 1.14 of the Limitation Act, 1963 provides the period of 90 days' limitation for appeals under Sub-section (1) or Sub-section (2) of section 417 of the old Code which corresponds to Sub-sections (1) and (2) of section 378 of the New Code. The Legislature however appears to have omitted to make consequential amendment in Article 114 of the Act but section 8 of the General Clauses Act has come to aid here.
15. By virtue of Sub-section (3) of section 378 on account of which appeal against an order of acquittal under Sub-section (1) and Sub-section (2) cannot be entertained without the leave of the High Court. A rider is placed by the Statute for entertaining appeal against an order of acquittal under Sub-sections (1) and (2) and the rider is leave of the High Court. Since no separate application for leave to appeal under Sub-section (3) is required, there would be composite petition for leave and the appeal. The language of Sub-section is that no appeal under Sub-section (1) or Sub-section (2) shall be entertained except with the leave of the High Court. The words 'entertained' and 'with' have significance in making the interpretation which is given there. Leave means a direction of the Court and therefore the period of limitation for leave of the Court for filing an appeal against acquittal is necessarily the same as in the period of limitation for appeal against acquittal under Article 114 of the Limitation Act. The view gets strengthened by reading provisions of Sub-section (4) and Sub-section (3) of section 378 of the New Code together. In Sub-section (4), application is required and for making such application the period of limitation is provided in Sub-section (5) for granting special leave to appeal against an order of acquittal in a case instituted upon a complaint and in a case of complaint not by a public servant, is sixty days, and in a case instituted by public servant, period of limitation is 6 months.
A separate provision is contained in Article 114(b) of the Act and that period is 30 days for appeal after the date of grant of special leave to appeal against the order of acquittal passed in a case instituted upon complaint.
16. Sub-section (5) of section 378 of the New Code as well as the Sub-section (4) of the section 417 of the Old Code did not provide for any period of limitation for appeal against an order of acquittal passed in a case instituted upon complaint. In such a case, the period of limitation under Article 114(b) of the Act is 30 days from the date of grant of leave.
17. In view of the above, we find that the provisions of section 5 of the Limitation Act are applicable for leave to appeal under Sub-section (3) as well as appeal as both are to be composite.
18. In the present case, the delay is of only two days and that an application for condonation of delay supported with affidavit is filed. Looking to the fact of shortness of the delay and explanation, we consider it a fit case for condonation of delay. The delay is accordingly condoned. Let the appeal together with the prayer for leave to appeal may be posted for consideration on 12th August, 1995. However, it may not go unnoticed that the State machinery is not vigilant in filing the appeal against acquittal within stipulated period. This callous attitude on the part of the machinery of the State Government is not appreciable because this causes inconvenience to the Court and also sometimes it makes the position of the learned State Counsel, embarrassing. We think that a little caution would be sufficient for activising the State machinery. A caution be accordingly issued to the State Government machinery for being careful in filing appeal against acquittal within the period of limitation provided for.