JUDGMENT
B.C. Patel, J.
1. The matter referred to this Full Bench raises an important question having bearing on the right of an accused viz., Can delay in filing of an appeal by the State be condoned without giving an opportunity of hearing to the accused?
2. The Slate of Gujarat preferred an appeal being aggrieved by an order of acquittal recorded by the learned Special Judge, City Sessions Court, Ahmedabad wherein the accused Kailashchandra Badriprasad and Ors., were tried for an offence punishable under Section 3 of the Essential Commodities Act in Special Case No. 4 of 1993. As there was delay of 81 days in filing the appeal, the State preferred Misc. Criminal Application No. 4735 of 1995 for condonation of delay under Section 5 of the Limitation Act, 1963.
3. The attention of the Division Bench hearing the application filed by the State against Kailashchandra Badrinath and Ors., was drawn to the decision of a Division Bench in case of Stale of Gujarat v. Ramesh L. Chauhan reported in 1994 (2) GLR 1577, inter alia, requesting that the Court in exercise of its discretionary powers, can condone the delay in instituting an appeal or revision without hearing the other side.
4. The Division Bench (Coram : K. J. Vaidya & N. N. Mathur, JJ.) in case of State of Gujarat v. R.L. Chauhan, expressed an opinion that, “it is not necessary to issue notice to other side because while appreciating the case at the time of admission, the Court even otherwise carefully scrutinizes the facts and circumstances of that particular case and purely thereupon, bearing in mind legal position when it feels that no case is made out, then even in absence of other side, the Court can and does dismiss such appeal or revision application summarily and in case it is of the opinion that prima facie case is made out, then such appeal or revisions are admitted. On very same principle, delay condonation applications can also certainly be decided and there indeed cannot be any such imperative rule that before deciding the same, to be exact condoning delay, notice should always be issued to the other side in each and every case, irrespective of the facts and circumstances of the particular case”.
5. The Division Bench, at the stage of admission, in view of the decision of the Apex Court in case of State of Maharashtra v. Sharadchandra Vinayak Dongre reported in 1995 SCC (Cri.) 16, was of the view that the opinion expressed by the Division Bench in the case of Ramesh Chauhan (supra) requires re-consideration by a Larger Bench, and that is how the matter has been placed before the Full Bench.
6. So far as the appeals are concerned, Chapter XXIX of the Criminal Procedure Code, 1973 (hereinafter referred as ‘Code’) is required to be perused. In the case of inadequate sentence, the appeal may be preferred by the State under Section 377 of the Code. Relevant portion of Section 377 is reproduced as under:
377(1) : Save as otherwise provided in Sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
7. So far as the appeal in case of acquittal is concerned, which is required to be preferred by the State Government, one will have to look at Section 378 of the Code. The relevant part of Section 378 is reproduced hereunder:
378. Appeal in case of acquittal .:
(1) Save as otherwise provided in Sub-section (2) and subject to the provision of Sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Sessions in revision.
(2) xxx xxx xxx
(3) No appeal under Sub-section (1) or Sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If in any case, the application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1) or under Sub-section (2).
8. Sub-section (5) of Section 378 provides that the application for special leave to appeal from an order of acquittal shall not be entertained by the High Court after the expiry of 6 months, where the complainant is a public servant and 60 days in every other case, computed from the date of acquittal. Thus, the Code itself provides the period of limitation under Sub-section (5) in case of an order of acquittal. That is with reference to a case where cognizance has been taken on the basis of a complaint and not on the basis of a charge-sheet. The Limitation Act, 1963 (hereinafter referred as ‘Limitation Act’) is also required to be perused. Section 5 of the Limitation Act reads as under:
5. Extension of prescribed period in certain cases:
Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
9. The question “period of limitation” is defined in Sub-clause (j) of Section 2 of the Limitation Act, as under:
2(j) ‘period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act.
10. We will have to refer to the first Schedule of the Limitation Act for the purpose of finding out as to what is the period of limitation prescribed for preferring an appeal or application. Articles 114 & 115 being relevant articles, are required to be considered. The said Articles read as under:
——————————————————————————
Description Period of Time from which
of suit limitation period begins to run
------------------------------------------------------------------------------
114 Appeal from an
order of acquittal
(a) Under Sub-section (1) Ninety days The date of the order
or Sub-section (2) of appealed from.
Section 417 of the
Code of Criminal
Procedure Code, 1898.
(b) Under Sub-section (3) of Thirty days The date of the grant
Section 417 of this Code. of special leave.
115. Under the Code of
Criminal Procedure,
1898 -
(a) From a sentence Thirty days The date of the
of death passed sentence
by a Court of
Sessions or by a
High Court in the
exercise of its original
Criminal Jurisdiction;
(b) From any other sentence
or any order not being
an order of acquittal -
(i) to the High Court Sixty days The date of the
sentence or order.
(ii) to any other Court. Thirty days The date of the
sentence or order.
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11. Thus, if the appeal is not preferred within the prescribed period of 90 days under Article 114 of the First Schedule of the Limitation Act, then the same would be barred by limitation and the State will have to submit an application as contemplated under Section 5 of the Limitation Act for condonation of delay. On sufficient ground being shown and after hearing the accused-respondent, the Court being satisfied with the cause shown for delay, the Court may condone the delay.
12. The Division Bench while making an order for placing the matter before the Hon’ble the Chief Justice has referred the decision of the Apex Court in the case of Sharadchandra (supra). The Apex Court examined the provisions contained in Sections 473 and 468 of the Code. Section 468 of the Code indicates bar of taking cognizance after lapse of the period of limitation for certain offences. The said section reads as under:
Section 468 : Bar to taking cognizance after lapse of the period of limitation:
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be –
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this Section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
13. One has to remember that, for a good cause, one may not be in a position to file the complaint in time, and therefore, the Legislature has provided Section 473 in the Code for extension of period of limitation, which reads as under:
473. Extension of period of limitation in certain cases:
Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.
14. Over and above this, the Code also prescribes the commencement of period of limitation and exclusion of time in certain cases including the date on which the Court is closed. There is a specific provision with reference to continuing offence. The Apex Court in para 5 of the judgment in the case of Sharadchandra Dongre (supra) approving the decision of the High Court, observed that, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. In view of this, it was submitted before us that when the principle of audi alteram partem is required to be borne in mind, the delay could not be condoned without hearing the affected party. It is submitted before us, and rightly so, that though there is no specific provision for issuance of notice to the accused or hearing the accused, the same is to be areas in the provision. The Court while passing an order of condoning the delay which is likely to adversely affect the respondent, is obviously required to hear the respondent. The party against which the Court is intending to pass the order of condonation of delay has a direct and substantial interest in the matter, and therefore, the Court can pass the order only after hearing such party. It is true that the accused has no right to be heard in a matter where the Court is intending to take the cognizance and before the process is issued, the accused has no say in the matter. However, to take the cognizance is one thing, and to say that the delay caused in filing a prosecution should be condoned or not without hearing the accused is quite a different thing. The accused in case of delay will be heard not on merits of the case i.e., whether to take the cognizance or not, but he will be heard only on the question whether delay should be condoned or not.
15. The case of an accused acquitted by a competent Court would stand on a better footing than the case of an accused against whom the allegation is made of having committed an offence. Before taking cognizance, in case of delay, the accused is to be heard by a competent Court. Applying the same principle when an accused is acquitted of an offence, there is no reason why he should not be heard before condoning the delay in the filing of an acquittal appeal? When the cases in which the cognizance is yet to be taken and where there is delay, the Court is required to hear the accused, how it can be said that in a case where the accused was tried by a Court of competent jurisdiction which has delivered a verdict in favour of the accused, it is not necessary to hear him, and therefore, in our considered opinion, the Court should not entertain the matter which is barred by limitation without hearing the other side on the question of condonation of delay in the filing of the appeal.
16. It is required to be noted that, after an order of acquittal is recorded by a competent Court, the valuable right flows in favour of the accused. Without hearing the person acquitted, on the question of delay in preferring an appeal, neither the delay can be condoned nor the appeal could be admitted by considering the delay without notice to the other side. In a given case, even if there is a delay of few days, the respondent-accused may be in a position to point out that the delay is not required to be condoned. In a given case, there may be a longer delay, yet the prosecution by placing sufficient material for explaining the delay, can persuade the Court to condone the delay, and despite hearing the accused respondent, the Court may condone the delay.
17. The Court prima facie may be satisfied with the explanation for delay, and that would be a good cause for issuance of notice to the other side, but the view expressed at the stage of issuance of notice cannot be treated as a final view. In a given case, after issuance of notice, the respondent can point out as to why the delay should not be condoned. Only after hearing both the parties, the Court will be able to decide whether to condone the delay or not. The Division Bench in case of R. L. Chauhan (supra) expressed an opinion that the Court can dismiss the appeal or application in absence of condone the delay without hearing the opponent/respondent. The Court after hearing the appellant or after giving a reasonable opportunity of hearing, may come to a conclusion that no case is made out for interference and may dismiss the appeal (or application). But Court cannot allow the appeal/application without hearing the other side. The decision that the appeal or application is not worth entertaining is pronounced after hearing or giving an opportunity of hearing to the appellant or applicant or the aggrieved party. It is known that opportunity of hearing is required to be given to the appellant or applicant for making out a case for admission. If without an opportunity of hearing to the appellant/ applicant, decision is rendered against the appellant/applicant, same would be bad. The learned Judge in our view have not taken a correct view by propounding that the Court can condone the delay by exercising the discretion, without hearing the accused by applying the analogy that the Court can dismiss the matter in absence of respondent. The Court appears to have overlooked the fact that the order of dismissal of appeal or an application will not adversely affect the respondent but will affect the appellant or applicant who is heard. The exercise of discretion without hearing the affected party would be nothing but an arbitrary exercise of powers. Even if the appeal is admitted without the fact of delay in presentation of appeal having been noticed by the Court, it would not debar the respondent to raise the ground subsequently and if he is in a position to point out that the cognizance was taken of time-barred matter for which there was no plausible explanation by the prosecution, the Court despite the admission of appeal, may pass an appropriate order.
18. In case of Mela Ram & Sons v. Commissioner of Income Tax , the Apex Court pointed out as under:
It is well established that rules of limitation pertain to the domain of Adjective Law, and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with Section 30(1), must therefore, be an appeal in the eye of law, though having been presented beyond the period mentioned in Section 13(2), it is liable to be dismissed in limine.
19. The Court has further pointed out that the Court should be slow to adopt a construction which deprives the parties of valuable rights.
20. It was submitted before us that the Division Bench of this Court (Coram : S.M. Soni & A. K. Trivedi, JJ.) in case of Stale of Gujarat v. A.B. Pathan and Anr. reported in 1999 (1) GLR 368. examined the provisions contained in the Code, Section 417 of the Code of Criminal Procedure, 1898 (hereinafter referred to as ‘old Code’). Articles 114 and 137 of the Limitation Act, and Section 6 of the General Clauses Act. The Division Bench expressed its opinion as under:
As no period of limitation is prescribed for filing an appeal against the order of acquittal, one can say that it should have been filed within a reasonable period and what is the reasonable period, particularly in criminal cases, would vary from case to case. In the facts and circumstances of the present case, according to the prosecution, there is a delay of 80 days in filing an application for leave. In view of Clause (a) of Article 114 of the Limitation Act, the period of limitation to file an appeal is prescribed as 90 days. According to the respondents, there is a delay of 115 days giving credit of 60 days of period of limitation. When there is no period of limitation prescribed for filing such an application, an application for condonation of delay is not necessary because contention regarding bar of limitation could not raised by the party at the time of hearing the appeal, if the same is admitted after grant of leave. However, the Court keeps after grant of leave. However, the Court keeps this question open for the respondents to argue at the time of hearing of the appeal.
21. The Division Bench considered the provisions contained in Section 417(1)(2) of the old Code and Section 378 of the Code. According to the Division Bench, under the old Code, it was not necessary to obtain leave of the High Court to prefer an appeal while under the Code, it is necessary. Sub-section (3) of Section 378 of the Code provides that no appeal under Sub-section (1) and (2) of Section 378 shall be entertained without the leave of the High Court. Therefore, in view of this, the Division Bench arrived at a conclusion that, under the Code, no appeal against an order of acquittal passed in a case instituted on a police report shall be entertained except with the leave of the High Court. Thus, leave of the High Court is a condition precedent to entertain an appeal. If leave is refused by the High Court, appeal cannot be entertained. If the leave is granted appeal can be entertained. The Division Bench in the case of A.B. Pathan (supra) further observed that, Sub-section (3) of Section 417 of the old Code provided for special leave to appeal in cases instituted on complaint and for such leave application, period of limitation was prescribed in Sub-section (4) of the old Code itself and on grant of such special leave, the appeal was to be filed within the period of limitation prescribed in Clause (b) of Article 114 of the Limitation Act. The Court examined Article 114 of the Limitation Act and pointed out that there is no provision for filing an application for leave to prefer an appeal against an order of acquittal passed in cases instituted on police reports. No such period of limitation is also prescribed in Section 378 of the Code. Provision for obtaining leave to prefer an appeal against an order of acquittal in cases instituted on police report, is newly introduced in Section 378 of the Code which was absent in Section 417 of the old Code.
22. No period of limitation for such leave is prescribed either in the Code or in the Limitation Act. Therefore, in the opinion of the Division Bench in case of A. B. Pathan (supra), so far as the period of limitation to obtain leave to prefer an appeal against an order of acquittal passed in case instituted on police report is concerned, would be covered under Article 137 of the Limitation Act, which is for any other application, for which no period of limitation is provided elsewhere in said division. The said Article reads as under:
——————————————————————————
Description Period of Time from which
of suit limitation period begins to run
------------------------------------------------------------------------------
137. Any other application Three years When the right
for which no period of to apply accrues
limitation is provided
elsewhere in this
Division
------------------------------------------------------------------------------
23. The Division Bench in view of this held that the period of limitation for filing an application for leave to appeal against an order of acquittal passed in case instituted on police report would be three years and after leave is granted, appeal can be entertained. In the opinion of Division Bench, period for preferring an appeal after leave is granted is also not provided either in the Limitation Act or in the Code. Clause (a) of Article 114 of the Limitation Act provides for period of 90 days for an appeal and that period is to commence from the date of the order appealed from. According to the Division Bench in case of A.B. Pathan (supra), a new provision is enacted and added whereby an appeal against an order of acquittal shall not be entertained except with the leave of the High Court. In para 4 of the judgment, the Division Bench in case of A.B. Pathan (supra), considered Section 8 of the General Clauses Act and arrived at a conclusion that the period of limitation to file an application would be three years and on grant of such leave, an appeal is to be filed or if already filed, could be entertained and that may now be read as 90 days from the date of the order appealed from.
24. Thus, one Division Bench in case of R. L. Chauhan (supra) held that it is not always imperative to issue a notice to the respondent before condoning delay. Accordingly, the views expressed by the Division Bench without hearing the affected party, delay can be condoned. The other Division Bench in case of A.B. Pathan (supra) laid down that the application for leave to appeal can be filed within a period of three years as contemplated in Article 117 of the First Schedule of the Limitation Act as there is no specific provision under the Limitation Act.
25. Sub-section (3) of Section 378 only states that the appeal shall not be entertained except with the leave of the Court. There is no question of making an application for leave as it is required to be made under Sub-section (4) of Section 378. Sub-section (4) of Section 378 requires an application by the complainant for grant of special leave to appeal from the order of acquittal. Sub-section (5) provides that such application shall not be considered for grant of special leave to appeal from an order of acquittal by the High Court after the expiry of six months where the complainant is a public servant and 60 days in every other case computed from the date of that order of acquittal. Thus, reading Sub-section (3) on one hand and Sub-sections (4) and (5) together, it is clear that so far as appeal under Sub-sections (1) or (2) of Section 378 is concerned, it requires no separate application and prayer for leave to appeal can be made in the appeal memo itself or can be made at the time of admission orally. While Sub-section (5) provides the period for making an application in case of an order of acquittal in a complaint case only. It appears that this distinction was not brought to the notice of the Division Bench for construing the provisions contained in Section 378.
26. The Division Bench in case of A.B. Pathan (supra) after considering the decision of the Apex Court in the case of State of Rajasthan v. Ramdeen and Ors. , expressed an opinion that, before the Apex Court, there was no question as to within what period, an application for leave to appeal against the order of acquittal is required to be filed. In the said case, before the Supreme Court, there was delay in filing the appeal memo after grant of leave and therefore, the Division Bench observed that the decision is of no assistance.
27. The Apex Court in case of State of Rajasthan v. Ramdeen and Ors. , has held that the application for leave to appeal, which was made by the State was equivalent to a memorandum of appeal under Section 378(1) read with Sub-section (3) of that Section. The fact that the application mentioned Section 378(3) was not decisive of the true character of the application which to all intents and purposes was a memorandum of appeal. There was, therefore, no need for presentation of a second petition of appeal nor for an application for condonation of delay. The appeal was filed within time. The Apex Court pointed out that the High Court committed an error of law in dismissing the same, as time-barred.
28. In that case, the State of Rajasthan preferred a petition for leave to appeal under Section 378 of the Criminal Procedure Code, 1973 which was within the period of limitation prescribed under Article 114(b) of the Limitation Act, 1963. Article 114(a) of the Limitation Act, 1963 provides for a period of limitation of appeal from an order of acquittal under Sub-section (1) or Sub-section (2) of Section 417 of the old Code. The Limitation Act being an Act of the year 1963, it has naturally not referred to Section 378 of the Criminal Procedure Code, 1973. Section 378 of the Criminal Procedure Code, 1973 is equivalent to Section 417 of the old Code with an important difference in case of appeal against acquittal by the State. Under the old Code, there was no provision for taking leave of the High Court by the State for presentation of an appeal to the High Court against an original or appellate order of acquittal. There was, however, provision for obtaining special leave to appeal under Section 417(2) of the old Code against an order of acquittal in any case institution upon complaint. Unlike in the old Code, Section 378(3) provides that no appeal under Sub-section (1) or Sub-section (2) thereof shall be entertained except with the leave of the High Court. Such a provision for obtaining leave of the High Court by the State was absent in the old Code.
29. The Apex Court further pointed out that, “It is not necessary as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal. If such a procedure is adopted, as above, it is likely, as it has happened in this case, the appeal may be time-barred if the High Court takes more than ninety days for disposal of the application for leave.” The Apex Court further pointed out that. “The right conferred by Section 378(1) of the Code, upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted, for in certain cases, it may so happen that the High Court may refuse to exercise its discretion to condone the delay.” The Apex Court in Para 10 of the judgment pointed out that “the application for leave to appeal, which was made by the State, can be considered as equivalent to a memorandum of appeal under Section 378(1) read with Sub-section (3) of Section 378 of the Code of Criminal Procedure, 1973. The fact that the application mentioned Section 378(3) is not decisive of the true character of the application which to all intends and purposes was a memorandum of appeal. There was, therefore, no need for presentation of a second petition of appeal nor for an application for condonation of delay.”
30. Thus, considering the language as it appears in Sub-section (1) and Sub-section (3) of Section 378 of the Code on one hand, and Sub-section (4) and (5) of Section 378 of the Code on the other hand, it becomes clear that separate application is to be made only in case where an appeal is preferred against the order of acquittal which is delivered in case instituted otherwise than on a police report. There being no specific provision for making an application under Sub-section (3), it is not necessary that the State should prefer separate application.
31. It would be more appropriate to consider the Gujarat High Court Rules, 1993. Rule 260 refers to contents of memorandum of appeal. Rule 264 refers to filing of appeals, Rule 265 refers to procedure regarding appeal which are beyond time. The said Rules are as under:
Rule 260 : Contents of Memorandum of Appeal:
The memorandum of appeal shall be made in the form of a petition in writing giving the grounds of objection numbered consecutively, and the grounds upon which the leave, if any, of the appellate Court is sought. It shall also show that the appeal is within time, and shall be accompanied by a certified copy of the judgment and the sentence or order of the Court, and also of the certificate of the Judge who tried the case that it is a fit case for appeal, when such certificate has been given.
Rule 264 : Filing of Appeals:
All appeals – Civil or Criminal, shall be filed in the office of the Registrar and shall be accepted, if within time, and are otherwise in conformity with the rules.
Rule 265 : Procedure regarding appeals which are beyond time:
When an appeal civil or criminal appears to the office to be beyond time, it shall be returned to the party or his Advocate, unless it is accompanied by a separate application for excuse of delay or the party or his advocate applies for it to be placed before the Court for orders.
Rule 266 refers to application for excusing delay, which reads as under: Rule 266 : Application for excusing delay:
An application for excusing the delay in presenting the appeal shall be filed within a fortnight of such return. Such application shall be placed before the Court for orders as soon as practicable.
32. Thus, it is very clear that it must be shown that the appeal which is presented is within time. The Registrar is required to accept the appeal if it is within time. If it is beyond time, the same is to be returned to the party or his Advocate by the registry unless it is accompanied by a separate application for condonation of delay. The party or his Advocate may apply for placing the matter before the Court for orders. If the appeal memo is returned as contemplated under Rule 265, then the delay condonation application is required to be preferred within a period of fortnight from the date of such return. These provisions are made keeping in mind the law of limitation as indicated in the Limitation Act, 1963 and various statutes.
33. Turning to Section 5 of the Limitation Act, it is pointed out by the Apex Court in the case of Uday Bhan Gupta v. Hari Shankar Bansal and Ors. , that, “Wherever an appeal or a revision petition is filed in the Registry of the High Court, the defects have to be pointed out and if the revision petition filed by the appellant is barred by limitation, the Registry ought to point out the defect which would prompt the appellant to seek condonation of delay.”
34. The Code of Criminal Procedure, 1973 being the Central Act, the General Clauses Act, 1897 is required to be referred to. Section 8 of the General Clauses Act reads as under:
8. Construction of references to repealed enactments:
Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification any provisions of a former enactment, the references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
35. Thus, in view of the Code of Criminal Procedure, 1973, which has repealed the Code of Criminal Procedure, 1898, the reference found in any other enactment or any instrument to the provisions contained in the Code of Criminal Procedure, 1898 is to be construed as reference to the provision re-enacted. Thus, in Article 114 and Article 115 of the Schedule to the Limitation Act, 1963 where there is a reference of Criminal Procedure Code, 1898, the same is to be construed as a reference to the provision contained in Criminal Procedure Code, 1973.
36. There is no need for the appellant to prefer a separate application for leave to appeal, while presenting an appeal under Section 378(1) or under Section 378(2) of the Code. In our opinion, view taken by the Division Bench in case of A. B. Pathan (supra) that the application for leave to appeal can be made within a period of three years from the date of judgment appealed against in case of appeal lodged under Section 378(1) or under Section 378(2) is not correct. As there is no provision for making an application for leave to appeal under Section 378(1) or under Section 378(2) like the provision contained in Section 378(4) of the Code, question of preferring separate application does not arise, and there is no need to read the provision for making an application for leave to appeal for which period of limitation of 3 years is prescribed in Article 117 of the Schedule of the Limitation Act.
37. It is a golden principle that, without hearing the party who is likely to be affected, no order can be passed. There is much development in administrative law. The principle is known as audi alteram partem, which has been explained by several decisions.
38. In the case of Ridge v. Baldwin reported in 1962 (1) All ER 834 (CA) : 1963 (1) QB 539 : 1962 (2) WLR 716 (CA), the principle of audi alterant partem is described as a “magna carta” of natural justice. A chief constable against whom some observations were made about the character as a senior police officer by the Presiding Judge resulted in dismissal by the watch committee. The Court of appeal opined that the watch committee was not exercising judicial or quasi judicial powers and therefore, the principles of natural justice did not apply. Reversing the decision of the Court of appeal, the House of Lords by a majority of 4:1 held that the power of dismissal could not be exercised without giving a reasonable opportunity of being heard and without observing the principle of natural justice. The order of dismissal was, therefore, held to be illegal. This principle has been followed in all quasi judicial actions of administrative authorities. When an administrative body is required to issue a show-cause notice before making a quasi judicial order, it is difficult to understand how the Court can exercise the discretion without hearing the party likely to be adversely affected thereby. Even where a discretion is to be exercised, it cannot be exercised against a party whose rights get affected, without giving an opportunity of hearing.
39. In view of the above legal position, it is very clear that, without hearing the accused in whose favour an order of acquittal is pronounced, the delay in filing the acquittal appeal cannot be condoned. Under the Code, when a time-barred appeal is preferred against an order of acquittal, the delay cannot be condoned, if sufficient cause is not shown.
40. The Apex Court in case of Ajit Singh Thakur Singh and Anr. v. State of Gujarat , had an occasion to consider the case where the appeal was filed three months after the limitation had expired. In that case, the appeal was not preferred because the State Government found no case on the merits for filing the appeal. However, it was filed because the High Court had observed – and that was long after limitation had expired – that the case was fit for appeal by the State Government. In that decision, the Court pointed out that:
Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired, it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay.
41. It goes without saying that the Limitation Act, 1963 applies in filing criminal appeals or applications and in case of delay, the application is required to be preferred for condonation of delay. In view of this decision, it cannot be said that in case of the State being an appellant, leave application can be preferred within a period of three years, and after the leave being granted, the appeal can be preferred within reasonable period as held by the Division Bench in A. B. Pathan’s case (supra). As pointed out earlier, there is no need to prefer an application for leave to appeal under Section 378(1) or (2) as it is required in case under Sub-section (4) of Section 378 of the Code.
42. In our view, once the leave is granted, the appeal is required to be admitted. Even in case of an appeal preferred against an order of acquittal passed in a case instituted otherwise than on a police report, when application under Sub-section (4) of Section 378 is granted, the appeals are admitted without further hearing. So far as the appeal preferred under Section 378(1) is concerned, along with the leave granted by the Court, the appeal should be admitted. If this course is not adopted, it would cause greater hardship to the lawyers and that would be waste of public time. In case, if the application is preferred and is disposed of by granting leave, the appeal will be required to be placed for admission. It may happen that the leave has been granted by one Bench and the appeal may be placed for admission of appeal before another Bench. This process would amount to nothing but waste of public time. Therefore, in absence of specific provision, it cannot be read in Sub-section (3) of Section 378, that application is to be filed. Wherever it was necessary, the legislature has made a provisions for application for leave to appeal e.g., the provisions contained in Sub-section (4) & (5) of Section 378.
43. In view of what we have said hereinabove, when an application is preferred under Section 5 of the Limitation Act for condonation of delay, the delay cannot be condoned without hearing the respondent and in view of the pronouncements which we have referred to above and particularly, the decision of the Apex Court in the case of Mela Ram & Sons v. Commissioner of Income Tax (supra), the Division Bench’s decision is not in consonance with the law laid down by the Apex Court in case of Mela Ram & Sons (supra) and is impliedly overruled by the latter decision of the Supreme Court in the case of State of Maharashtra v. S.V. Dongre (supra). The decision of the Division Bench in the case of A.B. Pathan (supra) is not a good law in view of provision contained in the Code and the decision of the Apex Court in the case of State of Rajasthan (supra).
In our view, therefore, the delay in preferring an appeal cannot be condoned without giving an opportunity of being heard to accused.
44. This matter is ordered to be forthwith placed before the Division Bench taking up such matters.
