STATE OF GUJARAT Vs. KANUBHAI FATIYABHAI BAMANIYA

JUDGEMENT

(1.) Though respondent is served, it appears that he has not chosen to remain present before the Court.

(2.) The State has filed this application for condonation of delay which according to the State Government Pleader's Office is 75 days. The ground advanced for condonation of delay is an administrative ground and certain disabilities on the part of the Addl.P.P. of Godhra, Panchmahals who was camping at Dahod for the concerned case. Alongwith this application appeal memo is filed and in appeal memo in paragraph 4, permission to grant special leave to file an appeal is prayed for.

(3.) In view of the provisions of Clause (b) of Art. 114 of the Limitation Act, 1963, an appeal from an order of acquittal under Sub-sec. (3) of Sec. 417 of that Code is required to be filed within thirty days from the date of grant of special leave. Sec. 417 of the old Code is equivalent to Sec. 378 of the Code of Criminal Procedure, 1973 (new Code) and is the same pari materia. Thus, it is necessary in view of Sub-sec. (3) of Section 378 to obtain leave of the High Court to make the appeal entertainable, as Sub-sec. (3) of Sec. 378 of the new Code prohibits the High Court from entertaining an appeal except with the leave of the High Court. In Sec. 378 of the new Code a period of limitation is prescribed for such leave to file an appeal in cases which are filed on a private complaint or by a public servant. No period of limitation is prescribed for such application if a cognizance in a case is taken on a police report. Thus, it can be said that no period of limitation is prescribed for seeking leave under Sub-sec. (3) of Sec. 378 of the new Code. Period of limitation is prescribed and is to commence from the date of decision of such special leave application. In the instant case, leave is sought by the applicant under Sub-sec. (3) of Sec. 378 of the new Code for which no period of limitation is prescribed. As no period of limitation is prescribed, there is no question of delay in filing such application. Thus, there is no question of filing application for condonation of delay also. As appeal is also filed simultaneously with the leave application being the practice of this Court, there is no question of condonation of delay either in filing leave application or even appeal.