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CR.MA/10/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10 of 2011
In
CRIMINAL
APPEAL No. 1877 of 2010
=========================================
MAHIJIBHAI
BHIKHABHAI PARMAR
Versus
STATE
OF GUJARAT
=========================================
Appearance :
MR
GAJENDRA P BAGHEL for Applicant(s) : 1,
MR.L.B.Dabhi, APP for
Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 01/03/2011
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.
Having
regard to the facts of the case, the Application is taken up for
hearing today.
By
filing instant Application under Section 5 of the Limitation Act,
1963 (“the Act” for short), the Applicant has prayed to
condone the delay of 49 days caused in filing the above numbered
Criminal Appeal, which is directed against the judgment and order
dated 29.7.2010 rendered in Sessions Case No.89 of 2007 by the
learned Additional Sessions Judge and Presiding Officer, Fast Track
Court No.2, Anand, by which the Applicant has been convicted for the
offence punishable under
Section 302 etc. of the Indian Penal Code and sentenced to
imprisonment for life.
At the outset, it may be noted
that the above numbered Criminal Appeal was filed on 15.11.2010,
wherein the registry has raised objection regarding delay caused in
filing the above numbered Criminal Appeal. In response thereto,
Criminal Misc. Application (for condonation of delay) was filed on
3.1.2011. On removal of office objections, the above numbered
Criminal Appeal was transferred to criminal department on 18.1.2011,
whereas the above numbered Criminal Appeal was transferred
separately on 21.1.2011 through oversight. Since the above numbered
Criminal Appeal was transferred to the criminal department on
18.1.2011, the same was listed for admission hearing on 8.2.2011
before this Court without Criminal Misc. Application (for
condonation of delay). As the Criminal Misc. Application (for
condonation of delay) was not attached with the above numbered
Criminal Appeal, the Appeal was “Admitted” by this Court
on 8.2.2011.
In the aforesaid backdrop,
Criminal Misc. Application (for condonation of delay) is listed for
admission hearing after the above numbered Criminal Appeal is
already “Admitted” by this Court on 8.2.2011.
Having
considered the submissions advanced by Mr. G.P.Baghel, learned
Advocate for the Applicant and 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 the celebrated principle governing
the discretionary exercise of power conferred under Section 5 of the
Act so also the reported decisions of the Supreme Court construing
Section 5 of the Act liberally, according to us, the Applicant has
shown sufficient cause for condonation of delay in filing the above
numbered Criminal Appeal. 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 by the Applicant for condonation of delay is
not only plausible but acceptable.
Seen in the above context, since
the Applicant has shown sufficient cause for condonation of delay in
filing the above numbered Criminal Appeal, the instant Application
seeking condonation of delay 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 49 days caused in filing
the above numbered Criminal Appeal is condoned.
Rule is made absolute.
(A.M.Kapadia,J)
(Bankim N.
Mehta,J)
Jayanti*
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