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CR.MA/277/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 277 of 2010
In
CRIMINAL
MISC.APPLICATION No. 276 of 2010
In
CRIMINAL APPEAL No. 32 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
IBRAHIMBHAI
BODHABHAI NIYATAR & 2 - Respondent(s)
=========================================================
Appearance
:
MR
RC KODEKAR, ADDL.PUBLIC PROSECUTOR
for
Applicant(s) : 1,
MR ND GOHIL, for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 12/07/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
Though
the cause-list shows Rule issued to respondents No.1 to 3 has not
been received back, Mr.N.D.Gohil, learned advocate appears and
states that he has received the instructions to appear on behalf of
respondents No.1 to 3 and he has also entered his appearance on
behalf of respondents No.1 to 3.
By
filing instant application No.5 of the Limitation Act, 1963 (‘the
Act’, for short), the applicant – State of Gujarat has prayed
to condone delay of 16 days caused in filing Criminal Misc.
Application No.276 of 2010, seeking leave to file Criminal Appeal
No.32 of 2010, which is directed against the judgment and order
dated 16.9.2009 rendered in Sessions Case No.177 of 2003 by the
Additional Sessions Judge, Ahmedabad (Rural), acquitting the
respondents – accused of the offences punishable under
Sections 306, 498A IPC and Sections 3 and 4 of Dowry Prohibition
Act, 1961.
The
reasons as to why the appeal could not be filed in time are detailed
in paragraphs 3,4 and 5 of the application. It is supported by
affidavit sworn by G.P.Rathod, Under Secretary, Legal Department,
Gandhinagar. In the application it is stated that because of
inter-department and intra-department proceedings, delay has been
caused. It is also pleaded that in the Government, files are moving
from one table to another table for obtaining necessary sanction.
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
considered the submissions advanced by Mr.R.C.Kodekar, learned APP
for the applicant – State of Gujarat, and Mr.N.D.Gohil,
learned advocate for respondents No.1 to 3 and on perusal of the
averments made in the application, which have remained
uncontroverted and 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 there was sufficient cause which prevented the
Applicant from filing the Appeal in time. The record does not
indicate that there was any 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.
In
view of the aforesaid, according to us, this 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 16 days caused in filing the above
proceedings is condoned. Rule is made absolute.
Registry
is directed to list the Criminal Misc. Application No.276 of 2010 in
Criminal Appeal No.32 of 2010 for admission hearing on 20.07.2010.
(A.M.KAPADIA,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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