JUDGMENT
Navin Chandra Sharma, J.
1. This is a revision by Rama Ballabh and Chiranjilal against the order dated August 5, 1981 passed by the Sessions Judge, Jhalawar in Criminal Appeal No. 123 of 1977 of his Court. The petitioners in this revision have prayed that the order of conviction dated August 8, 1977 passed by the Chief Judicial Magistrate Jhalawar and maintained by the Sessions Judge, Jhalawar, by his order dated August 5, 1981 be set aside and the food-grains seized & confiscated to the State be ordered to be returned to the petitioners and in case the food-grains have already been sold, the value thereof may be ordered to be refunded to the petitioners.
2. It is necessary to state briefly the facts leading to the filing of this revision. A criminal case under Section 3/7 of the Essential Commodities Act was filed in the court of the Chief Judicial Magistrate, Jhalawar and was registered as case No. 51 of 1976. It so happened that in an inspection of the establishment of M/s Shivkishan Shivnarain Kacholia by the District Supply Officer it was found that in April 1975, that the said firm had a stock of more than 100 quintals of Jawar without any declaration and further the firm had kept 236 quintals of gram in the warehouse on May 30, 1975 but did not disclose the name of the godown in the report to the Tehsildar. Thus it was alleged that the petitioners and their deceased father Gopikishan Kacholia, who were partners in the said firm and holders of grain licence, had contravened the provisions of the Rajasthan Food Grains (Prevention of Hoarding) Order, 1973 and the Rajasthan Food Grains Dealers Licensing Order, 1964 At the time of checking and inspection the above food-grains were seized and a criminal case was filed against the petitioners and their father Gopikishan Kacholia. The Chief Judicial Magistrate, Jhalawar by his order dated August 8, 1977 held the petitioners and their father guilty under Section 3/7 of the Essential Commodities Act and awarded a punishment of imprisonment till the rising of the court and a fine of Rs. 500/- and also directed that in default of payment of fine, all the three accused persons will further undergo an imprisonment for a period of 15 days each. The Chief Judicial Magistrate also passed an order for confiscation of the seized food grains to the State. Aggrieved by the judgment of she Chief Judicial Magistrate Jhalawar, the petitioners and their father (Late) Gopi Kishan Kacholia preferred a revision against the order of conviction before the court of Sessions Judge, Jhalawar. The learned Sessions Judge was right in his opinion that revision was not maintainable and the convicted person could only file an appeal. He converted the revision info appeal and allowed the appeal so far as the petitioners Rama Vallabh and Chiranji Lal were concerned. It may be mentioned here that Gopikishan Kacholia had died during the pendency of the revision before the Sessions Judge, Jhalawar, which had been treated by the Sessions Judge as appeal. Naturally, therefore, consequences mentioned in Section 394 of the Cr. P.C. ensued which contains the provision that every appeal (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Since Gopi Kishan Kacholia had died, the revision which was converted into an appeal abated in relation to him. There is a proviso attached to Section 394(2) of the Criminal Procedure Code which provides that where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal any of his near relatives may, within 30 days of the death of the appellant apply to the appellate court for leave to continue the appeal; and if leave is granted, the appeal shall not abate Explanation below this section states that the expression “near relative means a parent, spouse, lineal descendant, brother or sister. Gopikishan Kacholia had expired on January 19, 1980 and the period of 30 days within which the application could be made by the near relatives under proviso to Section 394 expired on February 18, 1980. It was on February 19, 1980 that that the petitioners claiming themselves to be lineal descendants of Gopikishan Kacholia filed an application under the proviso for leave to continue the appeal. The learned Sessions Judge rejected this application on two grounds firstly, that the application was barred by limitation and secondly, that Gopikishan Kacholia along with the petitioners had filed a revision and not an appeal and provisions of Section 394 of the Code do not apply to revisions.
3. The learned Counsel for the petitioners referred to the decision of their Lordships of the Supreme Court in the case of Pranab Kumar Mitra v. State of West Bengal . The question for determination in that case was whether a pending application in revision under Section 439 of the old Code of Criminal Procedure finally abates on the death of the petitioner in the High Court and if so what extent. In that case during the pendency of a revision under Section 439 of the old Code before the Calcutta High Court against the appellate order of the Additional Sessions Judge, Alipore, the accused died on July 8, 1955 leaving behind him, his widow and five children all of whom were minors except one Pranab Kumar Mitra. He made an application that he was one of the heirs of the deceased accused and was interested in proceeding with criminal revision case and challenged the order of conviction and sentence passed against his deceased father. He prayed that he might be added as a party to the criminal revision. The Division Bench of the Calcutta High Court passed an order on December 22, 1955 holding that the principles of Section 431 of the old Code apply to a criminal revision application even when there was a composite sentence but only in so far as the sentence of fine was concerned. The application for substitution was, therefore, allowed. Their Lordships of the Supreme Court laid down that in the essence of statutory revision in terms applying to an application in revision as there are those in Section 431 of the old Code in respect of criminal appeals, the High Court had the power to pass such orders as it may deem fit and proper in exercise of its revisional jurisdiction vested in it by Section 439 of the old Code. This power was a discretionary power which has to be exercised in aid of justice because the powers under Section 439 of the old Code read with Section 435 did not create any right in the litigation but only conserved the power of the High Court to see that justice was done in accordance with the recognised rules of criminal jurisprudence and that subordinate criminal courts do not exceed their jurisdiction or abuse their powers vested in them by the Court. That power was not available in appeal because a right of appeal was a statutory right which had got to be recognised by the courts and the right of appeal where one exists could not be challenged in exercise of the discretionary powers even of the High Court. Their Lordships inferred that the power of revision could be exercised according to the exigencies of each case. Their Lordships further stated that in revision the High Court was not justified in limiting its power to the question of fine only, whether it was appropriate or excessive, without going into the merits of the order of conviction. In their opinion, the High Court had the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view.
4. I may also refer to the decision of their Lordships of the Supreme Court in Laxmi Shanker Shrivastava v. State (Delhi Administration) reported in 1979 SCC (Cri.) 369. It was an appeal by special leave by Laxmi Shanker Shrivastava before the Supreme Court and the limited question for determination was whether the sanction was valid in law or not as the appellant had been convicted for offence under Section 5(2) read with Section 5(i)(d) of the Prevention of Corruption Act, 1947 and Section 161 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for 18 months on each count and a fine of Rs. 200/- and in default to suffer further rigorous imprisonment for a period of 2 months for an offence under Section 5(2) of the Act. The appeal of Laxmi Shanker Shrivastava was dismissed by the High Court of Delhi and his conviction and sentence was confirmed. Before the Supreme Court, the counsel for the State (Delhi Administration) raised a preliminary objection. It was urged that Laxmi Shanker Shrivastava died during the pendency of the appeal before the High Court and, therefore, the appeal abated and could not be proceeded with. It was also argued that if the appeal were not to abate on the only ground that the appellant was also sentenced to pay a fine of Rs. 200/- &, therefore, it may be said that right to property of the legal representatives may be adversely affected and, therefore, they would be entitled to continue the appeal; the State (Delhi Administration) was prepared to concede that the sentence of fine may be set aside. His Lordship Desai, J. while dealing with the question of abatement under Section 394 of the Code stated that from the proviso to Section 394(2) Cr. P.C. it was clear that where the appeal is against the conviction and sentence of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may within the time prescribed therein apply to the appellate court before which the appeal is pending for leave to continue the appeal and if the leave is granted, the appeal shall not abate. In that case Laxmi Shankar Shrivastava had preferred an appeal against his conviction and sentence of imprisonment, as also sentence of fine. After his death his near relations applied to continue the appeal, before the Supreme Court and the Supreme Court granted substitution of near relatives by is order dated March 28, 1978 and thereby granted leave to the near relatives to continue the appeal.
It was observed that, therefore, the near relatives of the deceased can continue the appeal and even if the respondent State concedes that the sentence of fine be set aside, yet the appeal would not abate because the appeal against conviction and sentence of imprisonment would not “bate if leave is granted to the near relative of the deceased to continue the appeal. Such leave having been granted by the Supreme Court, it was held that the appeal would not abate. It would appear from this decision of the Supreme Court that where composite sentence of imprisonment and fine is passed, then also the near relatives of the deceased convict, can make an application within the prescribed period to the appellate court for leave to continue the appeal and if the leave is granted, the appeal does not abate even in relation to sentence of imprisonment, even where the State concedes that the sentence of fine may he set aside.
5. As already stated, in the present case, the near relatives of deceased Gopi Kishan Kacholia had made an application before the Sessions Judge, Jhalawar on February 19, 1980 for leave to continue the revision. When the learned Sessions Judge had converted the revision into appeal, there was no difficulty before him in granting leave to the petitioners to continue the appeal filed by Gopi Kishan. The only hurdle was whether the application was filed by the near relatives within 30 days of the death of Gopi Kishan. It has already been stated above that there was a delay of one day in filing of the application. There were authorities for the proposition that the Old indian Limitation Act had no application to criminal proceedings except to the extent provided therein. I may refer to the decision of the Bombay High Court reported in AIR 1956 Bom 247 wherein it was held in respect of offence referred to in Section 198(b), which had to be filed within six months as required by Section 198(b)(4), that Section 5 of the Old Limitation Act did not apply. The learned Counsel for the petitioners referred to Section 29(2) of the new Limitation Act, 1963 which provides that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 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. In this respect, reference may be made to the decision of their Lordships of the Supreme Court in Kaushalya Rani v. Gopal Singh . In that case. the question was whether Section 417(4) of the Cr. P.C. 1898 which provided a period of limitation for application for special leave to appeal from orders of acquittal by private prosecutor was a special law within the meaning of Section 29(2) of the Old Limitation Act, 1908. In answering the question in the affirmative, their Lordships observed as under:
Special law, therefore, means a law enacted for special cases, in special circumstances, in contradiction to the general Rules of the law laid down has application generally to all cases with which the general law deals, in that sense the Code of Criminal Procedure is a general law regulating the procedure for the trial of criminal cases generally; but if it lays down any bar of time in respect of special cases in such circumstances like these contemplated by Section 417(3) and (4) read together, it will be a special law contained within the general law.
Thus the Limitation Act is a genera] law laying down the general rule of limitation applicable to all cases, dealt with by the Act; but there may be instance of special law of limitation laid down in other statutes, though not dealing generally with the Law of Limitation. The same view was taken by their Lordships of the Supreme Court in the case of Mangu Ram v. Delhi Municipality . It may be mentioned that in Mangu Ram’s case, the decision in Kaushalya Rani’s case distinguished so far as the application of sections of the Limitation Act is concerned. In Kaushalya Rani’s case Section 5 of the old Limitation Act was held to be not applicable in view of Section 29(2)(b) of the old Limitation Act. In Mangu Ram’s case their Lordships of the Supreme Court stated that there has been an important departure made by the Limitation Act 1963 in so far as the provisions contained in Section 29 Sub-section (2) was concerned. Whereas under the Indian Limitation Act, 1908, Section 29(2), Clause (b) provided that the provisions of the Indian Limitation Act, 1908 other than those contained in Sections 4, 5 to 10 shall not apply and, therefore, the applicability of Section 5 was in clear and specific terms excluded. However, the old Indian Limitation Act, 1908 stands repealed by the Limitation Act of 1963 which came into force with effect from January 1, 1964. Section 29(2) of the new Limitation Act, 1963 provided that Section 5 shall apply in so far as and to which it is not expressly excluded by the special law. The Code of Criminal Procedure does not exclude the application of Section 5 of the Limitation Act to the period of limitation provided for in the Code and, therefore, it is clear that Section 5 of the Limitation Act would apply to an application made by the near relatives under proviso to Section 394 of the Code. Looking to the fact that there has been a negligible delay of one day only and also looking to the fact the petitioners, who were co-accused, and who are also the near relatives of the deceased accused, were already on record, it was a fit case in which the learned Sessions Judge should have by the application of Section 5 of the Limitation Act, 1963, condoned this delay of one day.
6. I, therefore, allow this revision, set aside that part of the order of the Sessions Judge, Jhalawar dated August 5, 1985 whereby he has abated proceedings initiated by Gopi Kishan Kacholia before him by way of criminal revision No. 25/1977 an direct him to convert that revision into appeal as he has done in the case of Rama Ballabh and Chiranji Lal and then allow both these persons as near relatives to continue the appeal of Gopi Kishan Kacholia and decide the appeal of the near relatives of the said deceased accused in accordance with law. In view of this order, the learned Sessions Judge, Jhalawar would revive Criminal Appeal No. 123/77 with regard to the disposal of the property involved in the aforesaid criminal case and will also decide it in accordance with law. This order thus also disposes of Criminal Revision No. 273 of 1981.