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CR.MA/7004/2010 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7004 of 2010
In
CRIMINAL
APPEAL No. 1052 of 2010
=========================================
MOHD.
SALIM JUMRATIBHAI SHAIKH - Applicant(s)
Versus
STATE
OF GUJARAT
=========================================
Appearance :
MR
APURVA A DAVE for Applicant(s) : 1,
MR. L.B.DABHI, APP for
Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 19/07/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
RULE.
MR.
L.B.Dabhi, learned APP appears and waives service of notice on
behalf of the Respondent State of Gujarat.
By
means of filing this application under Section 5 of the Limitation
Act, 1963 (‘the Act’ for short), the Applicant accused have
prayed to condone delay of 110 days caused in filing the
Criminal Appeal No. 1052 of 2010, which is directed against the
judgment and order dated 11.1.2010 rendered in Sessions Case No. 300
of 2007, by the learned Additional Sessions Judge, Court No.16,
Ahmedabad City, by which the Applicant accused has been
convicted for the offences punishable under Sections 302 and 364A of
the Indian Penal Code and sentenced to imprisonment for life.
The
reasons as to why the appeal could not be filed in time are detailed
in paragraph 3 of the application. It is stated that the Appeal
could not be filed in the prescribed period of limitation due to
various reasons beyond the control of the Applicant accused.
Mr. Apurva A. Dave, learned advocate for the Applicant accused
orally submitted that the Applicant is a poor and illiterate person
and he is in jail since the date of his arrest, and therefore, he
could not manage for fund and approached the legal aid committee of
this Court and the legal aid committee has engaged a lawyer to
assist him and therefore the delay has been caused in filing the
Criminal Appeal. It is, therefore, prayed that the delay may be
condoned.
Having
considered the submissions advanced by Mr. Apurva A. Dave, learned
Advocate for the Applicant accused and Mr. Mr.L.B.Dabhi, learned
APP, for the Respondent State of Gujarat and a perusal of the
averments made in the Application which have remained
uncontroverted, and also considering the celebrated principles
governing the discretionary exercise of power conferred under
Section 5 of the Act so also the reported decisions of the Hon’ble
Supreme Court construing Section 5 of the Act liberally, we are of
the considered opinion that delay caused in filing the appeal has
been sufficiently explained. The record does not indicate that there
was inaction or negligence on the part of the Applicant – accused in
prosecuting the appeal. The Applicant accused has never
abandoned the lis. The explanation offered for condonation of delay
is not only plausible, but acceptable. In the aforesaid view of the
matter, since there was sufficient cause which prevented the
Applicant convict in filing the Appeal in time, application
deserves to be allowed by condoning the delay as prayed for.
For
the foregoing reasons, the application succeeds and accordingly it
is allowed. Delay of 10 days caused in filing the appeal is
condoned. Rule is made absolute.
(A.M.KAPADIA,
J.)
(J.C.UPADHYAYA,
J.)
Jayanti*
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