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CR.MA/5344/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 5344 of 2010
In
CRIMINAL
MISC.APPLICATION No. 1615 of 2010
In
CRIMINAL APPEAL No. 299 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
GABHUBHAI
CHEHARBHAI RABARI & 3 - Respondent(s)
=========================================================
Appearance
:
MR
LB DABHI, APP for Applicant(s) : 1,
MR SUBHASH G.BAROT for
Respondent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 11/08/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
Though
as per the endorsement made in the cause-list that rule issued to
respondent nos.1 to 4 has not been received back so far, Mr.Subhash
G.Barot, learned advocate appears and states that he has
instructions to appear in this matter on behalf of the respondents
accused and he has already entered his appearance for them today
itself.
By
instant Application filed under Section 5 of the Limitation Act,
1963 (‘Act’ for short), the applicant has prayed to condone the
delay of 33 days caused in filing the above-numbered Criminal
Appeal, which is directed against the judgment and order dated 9th
October 2009 rendered in Sessions Case No.239/2006 by the learned
Additional Sessions Judge, Court No.16, City Sessions Court,
Ahmedabad, by which the respondents came to be acquitted of the
offences under Sections 333, 332, 506(2), 294(B), 323 read with
Section 114 of the Indian Penal Code.
The
reasons as to why the Appeal could not be filed are detailed in
paragraphs 3, 4 and 5 of the Application. The averments made in the
application have been supported by the affidavit sworn in by Shri
G.P.Rathod, Under Secretary, Legal Department, Sachivalaya,
Gandhinagar. It is, inter alia, stated that because of inter
department and intra departmental proceedings considerable time has
been consumed and, therefore, the delay has occurred in filing the
above-numbered Criminal Appeal. He has, therefore, prayed to condone
the delay.
Having
heard Mr.L.B.Dabhi, learned APP for the applicant State of
Gujarat, Mr.Subhash Barot, learned advocate for the respondents and
upon perusal of the averments made in the Application, which have
remained uncontroverted and 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 the applicant has aptly, elaborately and sufficiently
explained the delay caused in filing the Criminal Appeal. There was
no negligence or inaction on the part of the applicant in
prosecuting the Appeal. The explanation offered by the applicant for
condonation of delay is not only plausible, but acceptable.
In
view of the aforesaid, according to us, this application deserves to
be allowed by condoning the delay as prayed for.
For
the foregoing reasons, the Application succeeds and accordingly it
is allowed. The delay of 33 days caused in filing the above-numbered
Criminal Appeal is condoned. Rule is made absolute.
(A.M.Kapadia,
J.)
(J.C.Upadhyaya,
J.)
/moin
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