Mittoor Moideen Hajee and Another vs Edekkattu Chekkutti Haji

Oldfield, J.—These appeals came before one of us for admission; and notice was issued to the Public Prosecutor solely on the question

whether they could be admitted or whether they were out of time. The point arises primarily, because the convictions and the sentences were

passed under Ordinance 1 of 1922, a special enactment. The time provided for appealing under that Ordinance is only 15 days. Judgment was

given in each of these appeals on the 31st March. The presentation in this Court was in Appeal 325, on the 24th April and in Appeal No. 342 on

the 28th April. It is clear that this presentation was out of time, unless the appellants were entitled at least to an allowance for the period requisite

for obtaining copies of the judgments appealed against. Such a deduction would of course be admissible in any appeal against a conviction under

the ordinary law with reference to Section 12 of the Limitation Act. This Court has however recently held in Lingayya v. Chinna Narayana (1917)

ILR 41 Mad. 169 : 33 M.L.J. 566 (F.B.), that Section 12 cannot be applied in the case of appeals under a special law, such as the Ordinance we

have to deal with.

The point however calls for no further consideration since the passing of Act X of 1922, which became law on the 5th March 1922 and

provided that Sections 4, 9 to 18 and 22 of the Indian Limitation Act should be applicable to proceedings under any special or local law, in so far

as and to the extent to which they are not expressly excluded by such law. It may be said at once that there is nothing in the Ordinance expressly

excluding this provision. The appellants are therefore entitled to credit for the time they spent in obtaining copies ; and that is, as Mr. Kurup on

their behalf agrees, from the date of judgment, 31-3-22, to the date, on which copies were given to their Vakil, 2-4-22.

That deduction however made, the presentation on the 24th and 28th April was still beyond the 15 days allowed by the Ordinance. Mr. Kurup

has accordingly conceded that there is delay in the presentation of Appeal No. 325 and has urged that the delay should be excused by this Court.

The difficulty is that Section 5 of the Limitation Act, under which the court can excuse delay is not one of the provisions, the application of which is

extended by Act X of 1922 to proceedings under a special or local law. We therefore have no right to utilise Section 5 in dealing with these

appeals, Next it has been argued that we have power to excuse the delay u/s 423(i)(a), Criminal Procedure Code, because an order excusing the

delay would be consequential or incidental order and would be just or proper in their disposal. We are unable to take that view of the nature of

such order. It is not consequential. We must then consider whether it is incidental and, if so, incidental to what? Section 423 begins ""The appellate

Court shall then send for the record of the case, if such record is not already in court ; "" and it has to be presumed that any power conferred by

Section 423 can be used only after the stage, at which Section 423 becomes applicable to the proceedings, has been reached. That is clearly

indicated by the use of the word ""then"". The application of Section 423 must, we think, be taken as legitimate, only after the preliminary stage

indicated in Sections 421 and 422 has been passed. That is after the appeal has been admitted and after the notice referred to in the latter section

has been given. It is true that notice has been given in this case to the Public Prosecutor but (as was stated distinctly in the order directing it) it was

given only for the special purpose of enabling him to appear to take part in the proceedings authorized by Section 421 at which the question of

admission and the question whether there should be further proceedings, with respect to which Section 423 applied, are considered. We do not

think that Section 423 confers on us any power, the exercise of which can help these appellants. We must therefore dismiss Appeal No. 325 as

out of time.

These considerations however are not sufficient for the disposal of Appeal No. 342, because it is presented by the 36th accused, who was

sentenced only to 4 years rigorous imprisonment and a fine and who therefore is entitled u/s 11 of the Ordinance to appeal only to the special

Judge and not to this Court. In fact he did present his appeal originally to the (Special judge. But that officer returned it to him on the ground that

some of the accused had been sentenced in the judgment appealed against to 5 years'' rigorous imprisonment and that the appeal lay in the case of

those also who had been sentenced to a shorter period, to the High Court. That view of the law is incorrect - Vide Re Venkatakrishnayya ILR

(1917) Mad. 591. For the purpose of deciding the tribunal before which the appeal lies, each accused must be deemed to have been convicted in

a separate case of his own; and the determination of the court having jurisdiction to hear his appeal will depend on the extent of his individual

sentence. That being the law, the learned Special Judge was wrong in returning the appeal to the appellant for presentation to this Court.

We have only then to decide whether the presentation to the learned Special Judge was in time. It is not disputed that, if allowance is made for

the time taken for obtaining copies and for the time, during which the court was closed for the holidays, presentation there on 24-4-22 was in time.

That being so, the learned Special Judge has refused to exercise the jurisdiction vested in him by law and we must deal with his order in revision.

We therefore in Appeal No. 342 return the appeal to the appellant''s counsel for representation in the court of the Special Judge.