The application for leave to appeal is equivalent to a memorandum of appeal under Section 373(1) read with sub-section (3) of that section of the Code of Criminal Procedure 1973.

JUDGMENT :

1. Present Criminal Misc. Application has been filed by the applicant-original complainant under Section 378 (4) of the Code Criminal Procedure, 1973 seeking leave to appeal challenging the impugned judgment and order of acquittal passed in CBI Special Case No.62 of 2003 by learned Special Judge, CBI Court No.2, Ahmedabad dated 30.11.2018, on the grounds stated in the application.

2. Heard learned Special Public Prosecutor Mr. R.C. Kodekar for the applicant-CBI at length.

3. During the course of hearing, a specific query was put by the Court that whether is there any provision to file separate application for leave to appeal by the State or not?

4. In response to the same, learned Senior Advocate Mr. B.B. Naik and learned Senior Advocate Mr. Devang Nanavati were appointed as Amicus Curiae, whereas learned Public Prosecutor Mr. Mitesh Amin has assisted the Court for adjudication of this issue.

5. Heard learned advocates for the respective parties.

6. It is beneficial to refer to the judgment of the Hon’ble Supreme Court in the case of the State of Rajasthan Vs. Ramdeen and Ors., reported in AIR 1977 SC 1328, wherein the Hon’ble Apex Court has held as under :

8. The matter will, therefore, have to be decided in terms of Section 378 (1) and (3) of the Code of Criminal Procedure, 1973. Section 378(1), so far as it is material for our purpose, provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal. Sub-section (3) of that section provides that such an appeal shall not be entertained except with the leave of the High Court. Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to entertain the appeal. It is not necessary, as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal. If such a procedure is adopted, as above, it is likely, as it has happened in this case, the appeal may be time-barred if the High Court takes more than ninety days for disposal of the application for leave. The possibility that the High Court may always in such cases condone the delay on application filed before it does not, in law, solve the legal issue. The right conferred by section 378(1), Cr.P.C., upon the State to prefer an appeal against acquittal will be jeopardized if such a procedure is adopted, for in certain cases it may so happen that the High Court may refuse to exercise its discretion to condone the delay. The right conferred under the section cannot be put in peril by an interpretation of section 378, Cr.P.C. which is likely to affect adversely or even perhaps to destroy that right.

9. Besides, under article 114 of the Limitation Act, in an appeal from an order of acquittal by the State, the period of limitation is ninety days from the date of the order appealed from; where - as in an appeal from an order of acquittal, in any case instituted upon complaint, the period is thirty days from the date of the grant of special Leave. Thus there is a clear distinction between the two types of appeals with regard to terminus a quo under Article 114. It is therefore, not necessary to wait until the grant of leave by the High Court to present a memorandum of appeal against acquittal at the instance of the State. Thus appeal can be filed by the State within ninety days from the date of the order of acquittal and a prayer may be included in that appeal for entertaining the appeal under sub-section (3) of section 378, Cr. P.C. If the leave sought for is not granted by the High Court, the appeal is not entertained and stands dismissed.

10. We are, therefore, clearly of opinion that the application for leave to appeal, which was made by the State in this