Judgment

GOSWAMI, J. - The respondents were tried by the Sessions Judge, Merta (Rajasthan) for offences under Ss.302, 302/149 and some other minor sections of the I.P.C. Respondent Goparam was acquitted of all the charges. The other respondents also were acquitted of the charges under Ss.302 and 302/149, I.P.C. Respondent Sangram was convicted under S.304 Part II, I.P.C. Respondent Dayalram was convicted under S.324, I.P.C. Respondents Budharam and Ramdeen were convicted under S.323, I.P.C.

2. Being aggrieved by the judgment of the Sessions Judge, the State of Rajasthan preferred an appeal against acquittal of the major charges under S.378 of the Code of Criminal Procedure, 1973.

3. The Sessions Judge delivered the judgment on March 30, 1974 and the Code of Criminal Procedure, 1973, came into force from April 1, 1974. The appeal was, therefore, preferred under the new Code.

4. It appears that the State of Rajasthan preferred a petition for leave to appeal under S.378 (3) of the Code of Criminal Procedure, 1973, on June 27, 1974 which was within the period of limitation prescribed under Art. 114 (b) of the Lim. Act, 1963. Art. 114 (a) of the Lim. Act, 1963, provides for a period of limitation for appeal from an order of acquittal under sub-s. (1) or sub-s. (2) of S.417 of the Code of Criminal Procedure, 1898 (hereinafter to be described as the old Code). The Lim. Act being an Act of the year 1963, does not naturally refer to S.378 of the Code of Criminal Procedure 1973. S.378 of the Code of Criminal Procedure, 1973, is equivalent to S.417 of the old Code with an important difference in case of appeal against acquittal by the State. Under the old Code there was no provision for taking leave of the High Court by the State for presentation of an appeal to the High Court against an original or appellate order of acquittal. There was, however, provision for obtaining special leave to appeal under S.417 (3) of the old Code against an order of acquittal in any case instituted upon complaint. With some changes about limitation, with which we are not concerned, provision for special leave to appeal in any case instituted upon complaint has been retained in the new Code. Unlike in the old Code, S.378 (3) provides that no appeal under sub-s. (1) or sub-s. (2) thereof shall be entertained except with the leave of the High Court. Such a provision for obtaining leave of the High Court by the State was absent in the old Code.

5. Since the State filed an appeal against acquittal in this case soon after the coming into force of the new Code, the State of Rajasthan preferred an application describing it as a petition for leave to appeal under S.378 (3) of the Code of Criminal Procedure, 1973, with a prayer "to accept this petition to file an appeal in the present case...." Although the application was described as one under S.378 (3) of the Code of Criminal Procedure, all the facts and other requisites for a memorandum of appeal, including the grounds on which the appeal was founded, were given in as great a detail as was necessary. The High Court after hearing the State granted leave to appeal on August 16, 1974. The State thereafter filed again a petition of appeal on September 10, 1974. This date is clearly beyond the period of ninety days prescribed under Art. 114 (a) of the Lim. Act, 1963. The High Court dismissed the appeal on January 27, 1975, as time barred.

6. In view of S.8 of the General Clauses Act, 1897, it is not disputed before us that Art. 114 (a) is applicable in this case. The respondents, however, submit that the petition of appeal should have been presented within ninety days of the judgment of the Sessions Judge which was on March 30, 1974. Since that was not done and there was not even an application for condonation of delay, the High Court had no alternative than to dismiss the appeal as time barred. The respondents further add that it was the practice of the Rajasthan High Court to present a memorandum of appeal after obtaining