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TMI Blog1964 (3) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 2 assaulted the deceased and caused his death as alleged by the prosecution; but that they acted in self defence when the deceased assaulted accused 1 with a merge in a such a way as to give rise to a reasonable apprehension of death of accused-1. Hence, the learned Sessions Judge acquitted the accused. Feeling aggrieved by the acquittal of the respondents by the learned Sessions Judge, the State has filed this appeal. (4) At the commencement of the hearing of this appeal, Mr. B. V. Krishnaswamy Rao, the learned counsel for the respondents-accused, raised a preliminary objection that the appeal was barred by time and that the state had not shown sufficient cause for condoning the delay in filing the appeal. (5) It is will settled that before an appeal under Section 417 of the Code of Criminal Procedure can be decided on merits, it is the duty of the Court to determine whether the appeal is filed in time and if there is any delay, whether such delay in presenting the appeal should be condoned. (6) Along with the memorandum of appeal, the state filed an application under Section 5 of the Limitation Act supported by affidavits, praying for the condonation of delay in filing the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to such appeals provided for the respondent making a motion for cancelling leave granted. However, according to practice of this Court, when criminal appeal is admitted, the next stage in the case will only be its hearing. There is no express provision for making a motion for cancelling admission of a criminal appeal. (10) Further, the appellant cannot be said to have incurred any expenses for preparation of the records because the records are typed by the Office of the High Court and the appellant is not called upon to pay any amount towards the charges of typing or printing in criminal appeals. It is no doubt true that the money for typing or printing of records in criminal cases must ultimately come from the State funds. But the State, qua appellant, will not incur any expenses for printing or typing of records. Hence the facts of this case are distinguishable from the facts of the aforesaid Madras Case. (11) Mr. Ashrit also relied on the decision of Bishendut Tewari v. Nandan Pershad Dubay 22 CWN 25 in which the High Court of Calcutta has also observed that an order admitting the appeal should not be discharged inter alia because the respondent's application was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecretary. In the affidavit of the Librarian it is stated that the Librarian found on 8-7-1963 at about 5-25 P.M. the file relating to the preferring of the appeal along with three other files in the rack containing old Gazettes adjoining the Law Library and that the Librarian sent the file to the acting Under Secretary, publication and that on 9-71963, the said Under Secretary sent the file to the litigation section of the Law Department. (17) We have now to consider the explanation offered on behalf of the appellant for the delay in filing the appeal is satisfactory and would constitute sufficient cause for not preferring the appeal within the period of limitation prescribed by Article 157 of the Indian Limitation Act, 1908. As laid down by the Bombay High Court in Emperor v. Shiva Adar, 9 Bom LR 893, the power given to the Court under Section 5 of the Limitation Act to condone the delay has to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood and delay in filing an appeal ought not to be excused unless there are special circumstances. While dealing with an application under Section 5 of the Limitations A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject and the case, therefore, has to be decided on general principles which apply to all ordinary litigants who may have to apply for the condonation of delay under Section 5 of the Limitation Act. (21) In considering the expression sufficient cause occurring in O. 22, R. 9, Civil P.C., the Supreme Court observed as follows in Union of India v. Ram Charan, [1964]3SCR467 : There is no question of construing the expression 'sufficient cause' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent . (22) As observed by Beg. J. in State of Uttar Pradesh v. Christopher Tobit AIR 1955 All 473 law has already allowed an extended period of limitation to the Government for filing an appeal against acquittal. While the period of limitation allowed for a private person to prefer an appeal to the High Court from an order of conviction is only sixty days, a longer period of three months is prescribed by Art. 157 of the Limitation Act for the State to prefer an appeal against an acquittal. The period of limitation is deliberately made larger by the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Advocate-General filing the appeal, as not being unduly long, as the counsel for the state had to study the judgment and other papers in the case, prepare grounds, get them typed and file an application under Section 5 of the Limitation Act supported by affidavits. (27) But the appellant has yet to explain the delay between 9-7-1963, ie., the date on which the file was traced and came to be in the possession of the litigation section of the Law Department and 24-7-1963, the date on which the Government passed orders. The affidavit of the Under Secretary does not disclose any satisfactory reason for this inordinate delay. Mr. Ashrit, the learned High Court Government Pleader merely stated that an enquiry was held in the Law Department of the Secretariat into the misplacement of the file and that the papers had to pass through several officers before the Government passed orders sanctioning the filing of the appeal. We are unable to see how holding of an enquiry as to the misplacement of the file could be ground for the delay in filing the appeal. Such enquiry could have gone on without holding up the file and without deferring the filing of the appeal. It is evident from the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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