DHANI Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by Mst. Dhani on leave granted under Section 417 Sub-section (3), Criminal P. C. by this Court, against the order of the First Class Magistrate No. 1, Jodhpur, acquitting the respondent Mst. Gopi of an offence under Section 323, indian Penal Code.

(2.) THE respondent has raised a preliminary objection that the appellant was not entitled to the grant of special leave under Section 417 Sub-section (3), Criminal p. C. and consequently, she urges that the leave should be revoked and the appeal be dismissed.

(3.) IN appreciating the preliminary objection it is necessary to set out the following facts:--Appellant filed a complaint against the respondent under Section 325, indian Penal Code. The case was, however, registered under Section. 323 Indian penal Code, On 28th May, 1962 the appellant remained absent and the Magistrate acting under Section 247, Criminal P. C. acquitted the respondent. The appellant applied for a copy of the order of the Magistrate acquitting the respondent on 27-7-1962 and obtained it on 28-7-1962. There-after, he submitted a revision application in this court on 1-9-1962 challenging the order of acquittal. It was however, reported by office that the revision did not lie. Thereupon, the appellant submitted an application on 14-9-1962 praying that the revision application be treated as petition for special leave to appeal. It will be noted that the revision application was filed after a period of 96 days. The appellant could have filed an application for leave to appeal within a period of 92 days; 60 days the prescribed period of limitation plus 32 days being the period occupied in taking copy of the order under challenge. Now, even if the application for special leave to appeal be treated to have been presented on 1-9-1962 when the revision application was filed still it was late by 4 days. On the other hand, if the application for leave to appeal be treated to have been filed on 14-91962 when a prayer for converting the revision application into an application for special leave to appeal was made, it was late by 18 days. Faced with this situation the appellant submitted an application for condonation, of the delay under Section 5 of the Limitation Act and a learned Judge of this Court by his order dated 4-4-1963 condoned the delay and further allowed the revision application to be treated as a miscellaneous application for leave to appeal.