STATE OF KERALA Vs. SREEKUMAR

JUDGEMENT

(1.) This application is filed for condoning the delay of 177 days in filing the Crl. Appeal along with the application for leave to file appeal against an order of acquittal. The Sessions Court acquitted the accused and State has filed the above appeal with an application for leave to file an appeal under S.378(3) of the Code of Criminal Procedure (hereinafter referred to as Code). The preliminary objection raised by the respondents is that S.5 of the Limitation Act is not applicable in this case and hence petition is liable to be dismissed. In support of the above, a Division Bench decision of this Court in Crl. M. P. No. 3375/1993 in Crl. A. ..... 93 was cited before us. In the above case it was held that provisions of the Limitation Act including S.5 will not apply in view of specific stipulations regarding time in S.378(5) of the Code. The Division Bench in the above unreported case held as follows:

(2.) This appeal is filed by the Public Prosecutor as directed by the State under S.378(1) of the Code. For filing an appeal by the State specific period of limitation is provided under Art.114 of the Limitation Act which provides period of limitation of ninety days. For filing an appeal by the State to leave to file an appeal has to be obtained by the State under S.378(3) of the Code of Criminal Procedure. The Division Bench decision (supra) relied on by the respondents deals the matter as if the Court was dealing with delay condonation petition in filing the special leave to appeal under S.378 (4). The above section is applicable only when appeal is filed by a private party or a public servant and not in appeal on a police charge. But for filing an appeal by the State only leave is necessary under S.378(3) and not special leave to appeal under S.378(4). It was not pointed out before the earlier Division Bench that the above appeal if filed by the State on a police charge and only leave is necessary under S.378(3) of the Code of Criminal Procedure and not special leave under S.378(4). In this connection we also refer to the Supreme Court decision in State of Rajasthan v. Ramdeen and Others (1977 SCC (Crl) 393). We quote Para.9 of the above judgment.

(3.) The next question to be considered is whether sufficient grounds are made out by the State for condoning the delay. The Deputy Superintendent of Police, Crime Branch filed an affidavit stating that the judgment was pronounced on 4.9.1999 and copy was obtained only on 19.2.2000. Meanwhile Special Public Prosecutor on 10.12.1999 recommended for an appeal and the matter was forwarded to the Additional Director General of Police, Crimes and Additional Director General of Police forwarded the same to the office of the Advocate General on 17.1.2000 which was received in the office of the Advocate General on 21.1.2000. A letter dated 29.1.2000 was issued from the office of the Advocate General to the Additional Director General of Police, Crimes to forward the records and records were received on 25.2.2000. Thereafter appeal was filed on 29.5.2000. It is argued by the respondents that there is no explanation of delay in filing the appeal after the records were received in the office of the Advocate General on 25.2.2000. The appeal was filed on 29.5.2000. There is three months unexplained delay. Learned Public Prosecutor argued that as soon as the records were received, as usual concerned Government Pleader was entrusted with the file. Thereafter draft was given for approval to the Director of Public Prosecution and then back to the office of the Advocate General and there was unavoidable administrative delay.