HARSH KUMAR, J. - (1.) Heard Shri Abhitab Kumar Tiwari, learned counsel for applicant, Shri Anand Mani Tripathi learned counsel for respondent nos. 2 and 3, learned A.G.A. for the State. No counter affidavit has been filed to the application under section 5 of Limitation Act, despite repeated opportunity has been given vide order dated 15.09.2016.
(2.) Learned counsel for the applicant contended that the complaint case filed by the applicant was dismissed acquitting the respondent nos. 2 and 3 vide impugned judgment and order dated 11.09.2009 passed by Special Judicial Magistrate (C.B.I.) Ghaziabad in Case No. 6199 of 2004 Ram Kishore Sharma v. Ram Nagina and another; that the cross case being Case Crime No. 659 of 1997 was registered on the F.I.R. lodged by respondent no. 2; that both the cases were cross case of each other and the complaint case and criminal case on the F.I.R. lodged by respondent no. 2 proceeded and decided together; that parties had come to out of court, compromise in the two cases and both cases were decided after evidence in acquittal; that respondent no. 2 cleverly got the appeal filed against acquittal order through the State in which Criminal Appeal No. 139 of 2009, the applicant-appellant and others were convicted vide judgment and order dated 28.09.2012 passed by Additional Sessions Judge, Court No. 4 Ghaziabad; that upon getting knowledge of the conviction order passed against applicant and others, the applicant and other co-accused persons preferred Criminal Revision No. 3546 of 2012 before this Hon'ble Court; that the applicant and other upon obtaining bail, after a period of seven months of filing the revision preferred appeal against the impugned judgment and order dated 11.09.2009 before the Sessions Judge with an application for condonation of delay under section 5 of Limitation Act Misc. Case No. 131 of 2013; that vide order dated 14.03.2014 at Annexure-3, the delay in filing of the appeal was condoned by the Additional Sessions Judge, Ghaziabad and subsequently vide order dated 22.12.2015 at A-4, the appeal was dismissed on technical ground of being not maintainable under section 372 Cr.P.C. before the Sessions Judge, as in view of the provisions of section 378(4), the appeal lies before the High Court; that upon dismissal of appeal by the Additional Sessions Judge, Court No. 5 Ghaziabad on technical ground, the applicant obtained copies of the impugned orders which were made available to him on 15.01.2016 and without any further deliberate delay, he preferred this appeal on 04.03.2016; that the applicant has not committed any intentional or deliberate delay in filing of the appeal and the delay, if any, is bona fide and has been caused due to wrong legal advice, on account of which instead of filing appeal before this Court, the appeal was filed by his counsel before the Sessions Judge and appellant prosecuted that appeal in good faith; that the appellant is a poor villager having no knowledge of legal matters; that the delay has been caused for bona fide reasons without any ill will; that the applicant has every hope of success in appeal and if the delay is not condoned, the applicant will suffer irreparable and by condonation of delay, the accused respondent nos. 2 and 3 are not likely to suffer whatsoever.
(3.) Learned A.G.A vehemently opposed the prayer of condonation of delay. Learned counsel for respondent nos. 2 and 3 relying on the case law given by the Apex Court in the case of Kaushalya Rani v. Gopal Singh AIR 1964 SC 260, contended that since section 378(5) Cr.P.C. specifically provides that no application for leave to appeal under subsection 4 for grant of special leave to appeal from an order of acquittal, shall be entertained by the High Court, after expiry of six months where the complainant is public servant and sixty days in every other case, computed from the date of that order of acquittal and since the above provision relates to special law the provisions of section 5 of Limitation Act are not applicable to the case and whatsoever may be the ground, the application under section 5 of Limitation Act is legally not maintainable and delay in filing appeal can not be condoned; that in the alternative if the applicability of section 5 of Limitation Act is found to be there, the applicant has deliberately delayed the filing of appeal before this Court and intentionally filed appeal before Sessions Judge in wrong forum to harm and harass the respondents, so delay condonation application is liable to be rejected. ;