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CR.MA/2627/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2627 of 2010
In
CRIMINAL
APPEAL No. 462 of 2010
=========================================================
VIHAJI
BACHUJI THAKOR - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MS
SUDHA C SHUKLA for
Applicant(s) : 1,
MR LB DABHI, ADDL.PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 05/08/2010
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
means of filing this application under Section 5 of the Limitation
Act, 1963 (‘the Act’, for short), the applicant has prayed to
condone delay of 243 days caused in filing above-mentioned criminal
appeal which is directed against the judgment and order dated
14.05.2009 rendered in Sessions Case No.321 of 2007 by the learned
Additional Sessions Judge, Fast Track Court No.1, Ahmedabad City by
which the applicant has been convicted for the offences punishable
under Sections 363, 366 and 120B IPC and sentenced to suffer RI for
7 years and fine of Rs.5,000/- and in default, SI for further period
of 6 months.
The
reasons as to why the appeal could not be filed in time are detailed
in paragraph 3 of the application, wherein it is inter-alia stated
that he is a poor person and he is unable to manage the fund for
fees of the advocate and, therefore, he could not engage a lawyer in
time. Thereafter, he tried to secure some amount from his relatives
and from other sources, but he failed and ultimately he approached
the Legal Aid Committee of this Court to assist him by engaging an
advocate from Legal Aid Committee and the Legal Aid Committee has
engaged an advocate, who has drafted the appeal and filed the same
and for that considerable time has been consumed. Therefore, delay
of 243 days has caused in filing the appeal. It is, therefore,
prayed that the delay may be condoned. It is also pleaded that there
was sufficient cause which prevented the applicant in filing appeal
in time.
Having
considered the submissions advanced by Ms.Sudha C.Shukla, learned
advocate for the applicant and Mr.L.B.Dabhi, learned APP for the
respondent – State of Gujarat and 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 as the reported decisions
of the Hon’ble Supreme Court construing Section 5 of the Act
liberally, we are of the considered opinion that the delay caused
has been aptly, elaborately and sufficiently explained by the
applicant. 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 243 days in filing the above proceedings is
condoned. Rule is made absolute.
(A.M.KAPADIA,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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