STATE OF GUJARAT Vs. AMANULLAKHAN BHUREKHAN PATHAN

JUDGEMENT

(1.) Heard learned A.P.P. Mr. K. T. Dave for the applicant-State, Mr. B. N. Raval, learned Advocate for respondent No. 1 and Mr. Z. N. Shaikh, learned Advocate for respondent No. 2.

(2.) The State has filed this application for condonation of delay of 86 days in filing an application for leave to prefer an appeal against the order of acquittal passed by the learned Special Judge, Dist. Kaira, at Nadiad in Special Case No. 4 of 1993 decided on 18/10/1997.

(3.) Before we consider whether there is sufficient cause for delay in filing this application for leave to appeal, it is necessary to note whether any period of limitation is prescribed either in the Limitation Act or in Code of Criminal Procedure, 1973 ("The New Code" for short) to prefer an application for leave to' appeal ? As in the present matter, the case is instituted on police report. Originally, in the old Code, i.e., Code of Criminal Procedure, 1898 ('old Code' for short), sub- secs. (1) and (2) of Sec. 417 provided for appeal from an order of acquittal passed in a case instituted on police report. On repeal of the same, there is a similar provision in sub-secs. (1) and (2) of Sec. 378 of the new Code. Difference made in the said provision between the two Code, i.e., repealed and new one is that in the old Code, it was not necessary to obtain leave of the High Court to prefer an appeal, while in the new Code, sub-sec. (3) of Sec. 378 which was not there in Sec. 417 of the old Code, provides that, no appeal under sub-secs. (1) and (2) of Sec. 378 shall be entertained except with the leave of the High Court. Thus, in view of the new Code, no appeal against an order of acquittal passed in a case instituted on police report shall be entertained except with the leave of the High Court. Thus, leave of the High Court is a condition precedent to entertain an appeal. If the leave is refused by the High Court, appeal cannot be entertained. If the leave is granted, appeal can be entertained. Sub-section (3) of Sec. 417 of the old Code provided for special leave to appeal in cases instituted on complaint and for such leave application, period of limitation is prescribed in sub-sec. (4) of the old Code itself and on grant of such special leave, period of limitation is prescribed in clause (b) of Art. 114 of the Limitation Act. On regarding Art. 114 of the Limitation Act, there is no provision found for limitation for filing an application for leave to prefer an appeal against an order of acquittal passed in cases instituted on police report. .No such period of limitation is also prescribed in Sec. 378 of the new Code also. Provision for obtaining leave to prefer an appeal against an order of acquittal in cases instituted on police report, is newly introduced in Sec. 378 of the Code which was absent in Sec. 417 of the old Code. No period of limitation for such leave is prescribed either in new Code or in Limitation Act. Therefore, in our opinion, so far as the period of limitation for such application to obtain leave to prefer an appeal against an order of acquittal passed in case instituted on police report, would be covered under Art. 137 of the Limitation Act which is for other application for which no period of limitation is provided else-where in said division. In this view of the matter, period of limitation for filing an application for leave to prefer an appeal against an order of acquittal passed in case instituted on police report would be three years and after such a permission is granted, appeal can be entertained and that appeal is required to be filed within period which in our opinion is also not provided either in the Limitation Act or the new Code. Clause (a) of Art. 114 of the Limitation Act provides for period of 90 days for an appeal and that period is to commence from the date of the order appealed from. In the new Code, a new provisions is enacted and added whereby an appeal against an order of acquittal shall not be entertained except with the leave of the High Court.