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CR.MA/6679/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 6679 of 2010
In
CRIMINAL
APPEAL No. 1010 of 2010
=========================================================
MAHENDRABHAI
PRABHATBHAI PARMAR - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MS
REKHA H KAPADIA appointed by Legal Aid Committee, Gujarat High Court
for Applicant(s) : 1,
MR
LB DABHI, ADDL.PUBLIC PROSECUTOR for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 26/07/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
Rule.
Mr.L.B.Dabhi, learned APP appears and waives service of notice of
rule 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 has prayed to condone delay of 75 days
caused in filing the above-numbered Criminal Appeal, which is
directed against the judgment and order dated 09.02.2010 passed in
Sessions Case No.108 of 2009 by the learned 2nd
Addl.Sessions Judge, Anand, by which the applicant has been
convicted for the offence punishable under Section 302 IPC and
sentenced to imprisonment for life.
Reason
as to why the appeal could not be filed in time are detailed in
paragraphs 3 and 4 of the application, wherein it is inter-alia
stated that he is in jail since the date of his arrest and he has no
means to engage an advocate and, therefore, during trial also, he
was allotted advocate from the Legal Aid. He has therefore contacted
Legal Aid Committee of this Court, who allotted the present advocate
to file the above-numbered appeal. Therefore, considerable time has
consumed in preferring the criminal appeal. It is, therefore,
prayed that the delay may be condoned.
Having
heard Mr.R.H.Kapadia, learned advocate for the applicant, appointed
by Legal Aid Committee, Gujarat High Court and Mr.L.B.Dabhi,
learned APP, for the respondent – State of Gujarat, and on
persual of the averments made in the application, which have
remained uncontroverted and 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 aptly and sufficiently explained. The record does not indicate
that there was inaction or negligence on the part of the applicant
in prosecuting the appeal. The applicant 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 delay has been sufficiently explained, 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 75 days caused in filing the appeal is
condoned. Rule is made absolute.
(A.M.KAPADIA,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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