minal Appeal No 191 of 1967
Appeal by special leave from the judgment and order dated March 14 1967 of the Rajasthan High Court in Criminal Appeal No 720 of 1965
B D Sharma for the appellant
The respondent did not appear
The Judgment of the Court was delivered by Sikri J
Hari Ram respondent filed a complaint against Lala Ram appellant alleging that Lala Ram had attacked him 899 with a Kassi on June 10 1964 at about 6 pm
Poonaram who was standing there prevented the blow from falling on Hari Ram by receiving it on his hand
The respondent however made a second attack and inflicted an injury on the left shoulder of Hari Ram
Hari Ram and Poonaram got themselves examined by the Civil Assistant Surgeon of the city and the injury report was submitted alongwith the complaint
The learned Magistrate acquitted the accused
Hari Ram filed an application under section 4173 of the Criminal Procedure Code for leave to appeal against the order of the Magistrate
Leave was granted by the High Court and thereupon Hari Ram filed the appeal
The High Court accepted the appeal and convicted the appellant Lala Ram under section 324 IPC and sentenced him to four months  rigorous imprisonment
The attention of the High Court was not drawn to the Proba tion of Offenders Act 1958 during the hearing of the a peal but subsequent to the delivery of the judgment an application was filed under section 561 A Cr
PC read with sections 3 4 and 6 of the Probation of Offenders Act
It was alleged in the application that the appellant was 20 years old and the High Court should have given him the benefit of the Probation of the Offenders Act
The High Court did not accede to this application
The appellant having obtained special leave from this Court the appeal is now before us
The main contention of law which arises before us is whether the appeal to the High Court was filed within limitation
The application for leave to appeal to the High Court under section 417 3 against the order of acquittal of the Magistrate dated August 31 1965 was filed on November 1 1965
It was claimed by the applicant that two days were necessary for obtaining the certified copy of the order of the Magistrate and the applicant was entitled to deduct these two days taken for obtaining the certified copy of the order of the Magistrate
There is no doubt that the application would be in time if these two days are deducted
But the learned counsel for the appellant contends that section 122 of the Indian Limitation Act is not attracted to applications under section 4173 Cr
PC Section 4173 and 4 read as follows 417
1 Subject to the provisions of sub section 5 the State Government may in any ease 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
3 If such an order of acquittal is passed in any case instituted upon complaint and the High Court on L5SupCI70 12 900 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
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
It is contended that the period of 60 days mentioned in s4174 is not a period of limitation within the meaning of s122 of the Limitation Act
Section 122 of the Limitation Act reads as follows  122 In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree sentence or order appealed from or sought to be revised or reviewed shall be excluded
 The learned counsel says that what s4174 provides is a prohibition and it bars the jurisdiction of the High Court to deal with the application if a period of 60 days has expired from the date of the order of acquittal
In our opinion there is no force in these contentions
In Kaushalya Rani vs Gopal Singh1 this Court while dealing with the question whether s5 of the Limitation Act applies to applications under s4173 described this period of 60 days ment ioned in s4173 as follows In that sense this rule of 60 days bar is a special law that is to say a rule of limitation which is specially provided for in the Code itself which does not ordinarily provide for a period of limitation for appeals or applications
 This Court further observed Once it is held that the special rule of limitation laid down in sub section
4 of section 417 of the Co de is a especial law  of limitation governing appeals by private prosecutors there is no difficulty in coming to the con clusion that s5 of the Limitation Act is wholly out of the way in view of s29 2 b of the Limitation Act 1  987
901 This Court approved the judgment of the Full Bench of the Bombay High Court in Anjanabai vs Yashwantrao Dauletrao Dudhel
The Full Bench of the Bombay High Court had observed in Anjanabai s case Sub section 4 prescribes a period of limitation for such an application
It states that no such application shall be entertained by the High Court after the expiry of sixty days from the date of the order of acquittal
This period of limitation is prescribed not for all appeals under the Criminal Procedure Code or even for all appeals from the orders of acquittal
It is prescribed only for applications for special leave to appeal from orders of acquittal
It is therefore a special provision for a special subject and is consequently a special law within the meaning of s292 of the Limitation Act
 It is quite clear that the Full Bench of the Bombay High Court and this Court proceeded on the assumption that s4174 of the Criminal Procedure Code prescribes a period of limitation
The learned counsel however contends that there was no discussion of this aspect
Be that as it may it seems to us that s417 4 itself prescribes a period of limitation for an application to be made under s4173
It was not necessary for the legislature to have amended the Limitation Act and to have inserted an article dealing with applications under s4173 Cr
PC it was open to it to prescribe a period of limitation in the Code itself
The learned counsel also suggests that the word entertain which occurs in s417 4 means to deal with or hear and in this connection he relies on the judgment of this Court in Lakshmi Rattan Engineering Works vs Asstt
Commissioner Sales Tax 2
It seems to us that in this context entertain means file or received by the Court and it has no reference to the actual hearing of the application for leave to appeal otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within 60 days of the order of acquittal
In the result we hold that the application under s4173 to the High Court was within time
The learned counsel then contends that the High Court should not have interfered with the order of acquittal passed by the Magistrate
He has taken us through the evidence of Poonaram who was injured and the statement of PW 3 Ananda who was present and who seems to be an independent witness
We agree 1 ILR 1961Bom135 137
2  902 with the High Court that the Magistrate was not entitled to reject the evidence of the eye witnessess
No reason has been shown to us why we should interfere with the finding of fact arrived at by the High Court
The learned counsel further contends that no offence was committed because the accused had a right of private defence of property
Assuming that he had a right of private defence of property he had ample opportunity of having recourse to the authorities and there was no need for the appellant to have taken the law into his own hands
The only question that remains now is the question whether the benefit of s6 of the Probation of Offenders Act should be extended to the appellant
In spite of opportunity being given no good proof has been furnished to establish that the appellant was at the relevant time under the age of 21 years
For the aforesaid reasons the appeal fails and is dismissed
RKPS Appeal dismissed


Summary:
An application for leave to appeal to the High Court under section 4173 Code of Criminal Procedure against an order of acquittal by a Magistrate dated August 31 1965 was filed on November 1 1965
It was claimed that two days were necessary for obtaining the certified copy of the order of the Magistrate
The application would be in time if these two days were deducted
The High Court accepted the appeal and convicted the appellant
In appeal to this Court against his conviction the appellant contended that the period of 60 days mentioned in section 4174 was not a period of limitation within the meaning of section 12 of the Limitation Act and that the sub section barred the jurisdiction of the High Court to deal with the application if a period of 60 days had expired from the date of the order of acquittal
HELD  The application under section 4173 to the High Court was within time
Section 4174 itself prescribes a period of limitation it was open to the legislature to prescribe a period of limitation in the code itself
In the context of section 4174 the word entertain means file or receive by the court and it has no reference to the actual hearing of the application for leave to appeal otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within sixty days of the order of acquittal
901 D F Kaushalya Rani vs Gopal Singh  987 Anjanabai vs Yeshwantrao Daplatrao Dudhe ILR 1961 Bom
135 137 and Lakshmi Rattan Engineering Works vs Asstt
Commissioner Sales Tax   referred to