Section 5 of the Limitation Act is applicable to an application for leave to appeal under Section 378 of the Code of Criminal Procedure, 1973, and the reason assigned by the State Government for the delay in filing the application for leave to appeal, being the strike by Advocates and lawyers, is sufficient to condone the delay under Section 5 of the Limitation Act.

( 1 ) THE memo of appeal along with application Under Section 378 (3, Cr. P. C. and another application Under Section 5, Limitation Act was filed before the Registrar on 3-4-1981 at his residence. The order of acquittal was passed by the First Additional Sessions Judge, Mathu-ra in s. T. 105 of 1980 on 3-12-1980. Application for copy of the order/judgment was moved on 12-12-1980, Notice of the preparation of the copy was given on 7-141981. Copy was actually taken on 14-1-1981, The office rightly reported that the memo of appeal and application Under section 378 (3, Cr. P. C. were filed beyond time by 4 days.

( 2 ) NOTICE of the application Under Section 5 62the Limitation Act was issued to the respondents opposite parties. One Alis Das, a pairokar of the respondents filed counter-affidavit. Sri Keshav sahay Advocate, appeared on behalf of the respondents: Chhinga, respondent No. 1 filed another counter-affidavit. He was represented by Sri Tejpal, Advocate.

( 3 ) THE learned State counsel filed re-Joinder affidavit. In support of the application Under section 5 of the Limitation Act, Shitla Prasad Shukla, ah official in the office of the Government advocate, filed affidavit. He deposed that the proposal for filing appeal was received at the residence, of the Government Advocate on 2tf-3i981 i. e. within the period of limitation for filing appeal etc. He further deposed that the office of the High Court as well as the office of the government Advocate were closed on account of strike with the result that the file retarded at. the residence of the Government Advocate up to 1-4-1981. He then Reposed that the office of the Government " Advocate opened on 1-4-1981 (Thesday, that file was marked to Sri V. \p, goal, Deputy Government Advocate to. . prepare the memorandum of appeal arid leave petition, that the said documents were prepared on 2-4-198 and then they were filed.

( 4 ) LEARNED Counsel for the parties tyere heard at length.

( 5 ) I would first of all deal with the contention of. Sri Tejpal. His contention 18: that an application Under Section 5 of the Limitation Act does not lie in view of he provisions of section 378 and Article 114 (a, jjim. Act. ,he referred to 3 cases also

(1) Hukumdev Narain. Yadav v. Lalit Narain Mishra MANU/sc/0247/1973;, AIR1974 SC 480 , (1974 )2 SCC133 , [1974 ]3 SCR31 ; (2) Raja Pandey v. Sheo Pujan Pan-dey AIR 1942 All 429 (FB); and (3) Kaushalya Rani v. Gopal Singh MANU/sc/0090/1963. , AIR1964 SC 260 , [1964 ]4d SCR982

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( 6 ) UNDER the old Cr. P. C. the State had a right to file an appeal against an order of acquittal without obtaining the leave of the Court; but if a complainant wanted to file an appeal against art order of fecqiiittal, he wst required to obtain leave of the Court (vide Section 417 (1, (3) arid x4) ). An:application for leave to ap- peal was to be filed within 60 days from the date of the order of acquittal. Under the new Cri. P. C, 1973, which came into force from 1-4-1974, not only the complainant but also the State have to obtain leave to file appeal. The relevant portion of section 378 (1) of the new Code which corresponds to Section 417 (1) of the old Code reads as follows: 378 (1 ). . . Subject to the provision of Sub-sections (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". Sub-section (s (3) and (5) run as follows:

(3) No appeal under Sub-section (1 ). . . shall be entertained except with the leave of the High court. (5) No application. . . for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of. . . 90 days. . . computed from the date of that order of acquittal.

( 7 ) SUB-SECTION (4) of Section 378 provides for an application for leave to appeal if the case arose on a complaint and the complainant desired to file an appeal