KANTILAL AMBALAL SHRIMALI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) After hearing both the learned advocates appearing for the respective parties, for condonation of delay as well as leave to appeal under Sec. 378(4) of Cr.P.C., it appears that, both the matters are listed today, but on the last two occasions i.e. on 28/3/2022 as well as 29/4/2022 before the co-ordinate Bench, Criminal Misc. Application No. 16711 of 2021 was not listed. Therefore, Registry to report this Court since earlier every orders appears on both applications Criminal Misc. Application No.16712 of 2021 as well as Criminal Misc. Application No. 16711 of 2021 that is to say including both delay condone applications of the applicant as well as leave to appeal.

(2.) Learned advocate Mr. Manoj Shrimali for the applicant fairly submitted that after 30 days he has filed the leave to appeal which is mandatory under the Code and therefore, in all delay is caused for 323 days. Further, learned advocate appearing for the applicant has also drawn the attention of this Court that the mistake occured by the applicant before the learned Sessions Court to file the Criminal Appeal before the learned Sessions Court, wherein learned Sessions Court, Gandhinagar has passed the order, but the same is not maintainable in view of provision of Sec. 378(4) of Cr.P.C. and therefore, he prayed for condoning the delay of 323 days for filing the appeal.

(3.) Learned advocate Mr. Bhash H. Mankad for the respondent No.2 has heavily contended that when the delay condonation application is not allowed and same is listed with Criminal Appeal is not in accordance with law and procedure. In fact, delay condonation application is coupled with leave to appeal under Sec. 378(4) of Cr.P.C., this main stand of the applicant is required to file leave to appeal under Sec. 378(4) of Cr.P.C. coupled with delay condonation application.