( 1 ) THE matter referred to this Full Bench raises an important question having bearing on the right of an accused viz. , Can delay in filing of an appeal by the State be condoned without giving an opportunity of hearing to the accused?

( 2 ) THE State of Gujarat preferred an appeal being aggrieved by an order of acquittal recorded by the learned Special Judge, City Sessions Court, ahmedabad wherein the accused Kailashchandra Badriprasad and Ors. , were tried for an offence punishable under Sec. 3 of the Essential Commodities Act in special Case No. 4 of 1993. As there was delay of 81 days in filing the appeal, the State preferred Misc. Criminal Application No. 4735 of 1995 for condonation of delay under Sec. 5 of the Limitation Act, 1963.

( 3 ) THE attention of the Division Bench hearing the application filed by the State against Kailashchandra Badrinath and Ors. , was drawn to the decision of a Division Bench in case of State of Gujarat v. Ramesh L. Chauhan, reported in 1994 (2) GLR 1577, inter alia, requesting that the Court in exercise of its discretionary powers, can condone the delay in instituting an appeal or revision without hearing the other side.

( 4 ) THE Division Bench (Coram : K. J. Vaidya and N. N. Mathur, JJ.) in case of State of Gujarat v. R. L. Chauhan, expressed an opinion that, "it is not necessary to issue notice to other side because while appreciating the case at the time of admission, the Court even otherwise carefully scrutinizes the facts and circumstances of that particular case and purely thereupon, bearing in mind legal position when it feels that no case is made out, then even in absence of other side, the Court can and does dismiss such appeal or revision application summarily and in case it is of the opinion that prima facie case is made out, then such appeal or revisions are admitted. On very same principle, delay condonation applications can also certainly be decided and there indeed cannot be any such imperative rule that before deciding the same, to be exact condoning delay, notice should always be issued to the other side in each and every case, irrespective of the facts and circumstances of the particular case".

( 5 ) THE Division Bench, at the stage of admission, in view of the decision of the Apex Court in case of State of Maharashtra v. Sharadchandra Vinayak dongre, reported in 1995 SCC (Cri.) 16, was of the view that the opinion expressed by the Division Bench in the case of Ramesh Chauhan (supra) requires re-consideration by a Larger Bench, and that is how the matter has been placed before the Full Bench.

( 6 ) SO far as the appeals are concerned, Chapter XXIX of the Criminal procedure Code, 1973 (hereinafter referred as code) is required to be perused. In the case of inadequate sentence, the appeal may be preferred by the State under Sec. 377 of the Code. Relevant portion of Sec. 377 is reproduced as under :-"377 (1) : Save as otherwise provided in sub-sec. (2), the State Government may, in any case of conviction on a trial held by any Court other than a High court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. "

( 7 ) SO far as the appeal in case of acquittal is concerned, which is required to be preferred by the State Government, one will have to look at Sec. 378 of the Code. The relevant part of Sec. 378 is reproduced hereunder :"378. Appeal in case of acquittal :- (1) Save as otherwise provided in sub-sec. (2) and subject to the provision of sub-sees. (3) and (5), the State Government may, in any case, direct the public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Sessions in revision. (2) xxx xxx xxx (3) No appeal under sub-sec. (1) or sub-sec. (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is p