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CR.MA/981/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 981 of 2010
In
CRIMINAL
MISC.APPLICATION No. 979 of 2010
In
CRIMINAL
APPEAL No. 193 of 2010
=========================================
STATE
OF GUJARAT
Versus
KHER
MOHMMED @ KHERU GUL MOHMMED SINDHI & ORS
=========================================
Appearance :
MR
R.C. KODEKAR APP for
Applicant
RULE SERVED for Respondent Nos. 1 - 2, 4, 6
MR
HARNISH V DARJI for Respondent Nos. 3 & 5
MR UTPAL M PANCHAL
for Respondent No. 7
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 27/08/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1 By
filing instant Application under Section-5 of the Limitation
Act,1963, the applicant State of Gujarat, has prayed to condone
delay of 62 days caused in filing the above numbered criminal
appeal, which is directed against the judgment and order dated
31.8.2009, rendered in Sessions Case No. 4 of 2008, by the
learned Additional Sessions Judge, Surat, by which the respondents
accused persons came to be acquitted for the offences punishable
under Sections 395, 354 and 328 of the I.P.C.
2 The
reasons as to why the Appeal could not be filed in time are
detailed in paragraphs 3 and 4 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 procedure for obtaining sanction to file appeal,
considerable time is consumed and thereafter the matter was sent to
the Office of the learned Public Prosecutor, High Court of Gujarat.
There also, considerable time has been consumed for preparing draft
and, therefore, the delay has been occurred. It is, therefore,
prayed to condone the delay.
3 Though
the Rule issued to Respondent Nos. 1, 2, 4 and 7 has been served,
they have elected not to remain present.
4 Having
considered the submission advanced by Mr. R.C. Kodekar, learned APP
for the applicant State of Gujarat, Mr. Harnish V. Darji, learned
Advocate for respondent Nos. 3 and 5 and Mr. Utpal M. Panchal,
learned Advocate for respondent No.7 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, elaborately and
sufficiently explained. The record does not indicate there was
inaction or negligence on the part of the applicant in prosecuting
the Appeal. The applicant has never abandoned the lis. The
explanation for condonation of delay offered by the applicant is
not only plausible but acceptable.
5 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.
6 For
the foregoing reasons, the application succeeds and accordingly
it is allowed. Delay of 62 days caused in filing the above
numbered Criminal Appeal is condoned.
Rule
made absolute.
(A.M.KAPADIA,
J.)
(J.C.UPADHYAYA,
J.)
pnnair
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