MOHAMMAD YAQOOB MIR,J. - (1.) Vide judgment, dated 06.04.2015, trial court (learned Sessions Judge, Anantnag) on conclusion of trial has acquitted respondent Nos. 2 and 3 whereas respondent No. 1 has been acquitted of the charges under Sections 302, 447 read with Section 34, RPC but has been convicted under Section 304, RPC. Aggrieved thereof, State has decided to file an appeal but in terms of Proviso to sub-section (1) of section 417 of the Code of Criminal Procedure, 1973 appeal cannot be filed except with the leave of the Court, hence the instant application. The applicants have also filed an application for condoning the delay of 95 days in preferring the appeal.
(2.) According to learned counsel for the respondents, application for leave to appeal should have been filed within the period of limitation which has not been done, therefore, delay cannot be condoned as Section 5 of the Limitation Act, which provides for condonation of delay, is not applicable.
(3.) Learned counsel for the respondents proceeded on the notion that when the period of limitation is prescribed by Section 417. Cr.P.C, then, in terms of section 29 of the Limitation Act, 1963 Section 5 of the Limitation Act will not apply. The submission of the learned counsel is misplaced. Proviso to Section 417 Cr. P. C. has been added by way of amendment in the year 2012 to the following effect: 'Provided no appeal to the High Court under sub-section (1) shall be entertained except with the leave of the High Court'. Sub-section (1) of Section 417 does not, by itself, prescribe any period of limitation for filing application seeking leave to appeal.;