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CR.MA/2041/2010 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2041 of 2010
In
CRIMINAL
MISC.APPLICATION No. 663 of 2010
In
CRIMINAL
APPEAL No. 134 of 2010
=========================================
STATE
OF GUJARAT
Versus
THAKORE
ASHVINJI @ ASHOK BABUJI & 1 )
=========================================
Appearance :
MR.
R.C.KODEKAR, APP for Applicant(s) : 1,
MR YM
THAKORE for Opponent(s) : 1 -
2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 30/07/2010
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 23 days caused in filing the
above number Criminal Appeal, which is directed against the judgment
and order dated 16.9.2009 rendered in Sessions Case No. 53 of 2009,
by the learned Additional Sessions Judge, Fast Track Court No.3,
Mahesana, Camp at Visnagar, by which the Opponents accused have
been acquitted of the offences punishable under Sections 306, 498A,
323 read with Section 114 of the Indian Penal Code.
The
reasons as to why the appeal could not be filed in time are detailed
in paragraphs 3, 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. R.C.Kodekar, learned APP for the Applicant State of
Gujarat and Mr. Y.M.Thakore, learned Advocate for the Opponents
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 23 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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