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CR.MA/454/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 454 of 2010
In
CRIMINAL
MISC.APPLICATION No. 453 of 2010
In
CRIMINAL
APPEAL No. 102 of 2010
=========================================
STATE
OF GUJARAT
Versus
RAMSWARUP
RAMKISHOR SHAH
=========================================
Appearance :
MR.
L.B.DABHI, APP for Applicant(s) : 1,
MR JV
JAPEE for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 05/08/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
By
means of filing this application under Section 5 of the Limitation
Act, 1963 (‘the Act’ for short), the Applicant State of Gujarat
has prayed to condone the delay of 108 days caused in filing the
above number Criminal Appeal, which is directed against the judgment
and order dated 2.7.2009 rendered in Sessions Case No. 124 of 2007,
by the learned Additional Sessions Judge, Sabarkantha at Modasa, by
which the sole Respondent accused has been acquitted of the
offences punishable under Sections 4 and 5 of the Explosive
Substances Act.
The
reasons as to why the appeal could not be filed in time are detailed
in paragraphs 4 and 5 of the application. The averments made in the
application are supported by an affidavit sworn by G.P.Rathod, Under
Secretary, Legal Department, Sachivalaya, Gandhinagar. It is inter
alia stated that because of intra-department and inter-department
proceedings, considerable time is consumed and the delay has been
caused. It is also pleaded that there was sufficient cause which
prevented the applicant in filing appeal in time. It is, therefore,
prayed that the delay may be condoned.
Having
heard Mr. L.B.Dabhi, learned APP for the Applicant State of
Gujarat and Mr. J.V.Japee, learned Advocate for the Respondent
accused 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 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 there was sufficient cause which prevented the
Applicant 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 108 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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