CENTRAL BUREAU OF INVESTIGATION (CBI) Vs. NABENDRA KUMAR @ N KUMAR
LAWS(GAU)-2018-10-37
HIGH COURT OF GAUHATI
Decided on October 05,2018

CENTRAL BUREAU OF INVESTIGATION (CBI) Appellant
VERSUS
Nabendra Kumar @ N Kumar Respondents

JUDGEMENT

Rumi Kumari Phukan, J. - (1.) The Interlocutory Application 215/2016 was filed under Section 5 of the Limitation Act for condoning the delay of 900 days in filing the accompanying special leave to appeal against the order of acquittal passed in Special Case No. 12/2006, under Section 120B, 420, 477A IPC, read with Section 13 (2) read with Section 13 (1) (d) P.C. Act, by the learned Special Judge, CBI, Additional Court No. 1, Guwahati.
(2.) The another application filed under Section 378 (3) Cr.P.C. for grant of special leave to appeal. Already heard the learned counsel for both the parties on the petitions. As against the said order of acquittal, the CBI preferred appeal under Section 377 Cr.P.C. with a delay condonation petition Crl. MC No. 261/2014 and after processing the said petition, this Court by condoning the delay of 47 days directed to register the appeal vide Crl. Appl. No. 95/2015, vide order dated 06.04.2015. However, on the objection raised by the learned counsel for the respondents regarding non-compliance of Sections 378 (2) (3) (5) Cr.P.C. that the appeal has been filed without special leave, the Court dismissed the appeal for non-compliance of Section 378 (3) Cr.P.C. by its order dated 03.06.2015. Thereafter, the petitioner moved another Interlocutory Application 840/2015, under Section 482 Cr.P.C. for setting aside and modification of the aforesaid order dated 03.06.2015, passed by this Court in Crl. Appl. No. 95/2015 and upon hearing the matter, said application was dismissed on a findings that as the appeal was filed without complying statutory requirement under Section 378 (3) Cr.P.C. and also in view of Section 362 Cr.P.C., the review of earlier order is not maintainable, hence dismissed as on 03.11.2015.
(3.) It is the contention of the learned counsel for the petitioner that once the Court has allowed the appeal to register by condoning the delay of 47 days, subsequent reliance upon the provision of Section 378 (3) Cr.P.C. by the respondent is not proper and the special leave may have been granted by the Court while the delay has already been condoned. Further, the very order for allowing the registration of the appeal by condoning the delay, it inherently indicates that there was a grant of special leave to appeal by the Court. Situated thus, the petitioner come forward with fresh applications for special leave to appeal so as to decide whether technical objection to the inherent power of the Court is enough to dismiss the entire appeal without hearing on merits. Further aspect that has been raised, whether such a leave to appeal could have been considered at the time of admission.;


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