IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR RESTORATION) NO. 1 of 2023 In F/CRIMINAL APPEAL NO. 32154 of 2022 With CRIMINAL MISC.APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2023 In F/CRIMINAL APPEAL NO. 32154 of 2022 ==========================================================

SHAHIDBHAI YUSUFBHAI CHHIPA Versus STATE OF GUJARAT ==========================================================

Appearance:

MR JEET J BHATT(6154) for the PETITIONER(s) No. 1 MS SHRUTI PATHAK, APP for the RESPONDENT(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE and HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 03/07/2023

IA ORDER

(PER : HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR)

RULE. learned APP Ms.Shruti Pathak waives service of notice of rule for and on behalf of the respondent - State. The applicant-convict has filed the present Criminal Misc. Application No.2 of 2023, under Section 5 of the Limitation Act, for condonation of delay of 129 days caused in filing the restoration application, being Criminal Misc. Application No.1 of 2023, for restoring the captioned Criminal Appeal.

Heard learned advocate appearing for the applicant-

convict and learned APP appearing for the respondent –

State.

Learned advocate for the applicant-convict submitted that the applicant-convict is in jail and the certified copy of the judgment and order dated 26.4.2022 passed by the learned Additional Sessions and Special Judge (POCSO), Anand, in Special (POCSO) Case No.66 of 2018 was not received and after receiving the same, the matter was allotted to the High Court Legal Services Committee. However, since the copy was not furnished, the learned advocate could not remove the office objections and hence, the application was dismissed. Now, he has received the certified copy of the judgment and he is able to remove the office objection. Hence, the delay has been caused in filing the restoration application. Therefore, he requested to allow the application and condone the delay caused in filing the restoration application.

Learned APP has vehemently opposed the present application. Considering the submissions made by the learned advocates for the parties, it appears that the delay of 129 days caused in filing the restoration application has been sufficiently explained. Therefore, we are inclined to allow the present application and condone the delay.

It is needless to mention that the primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice. Rule of limitation is not meant to destroy the rights of the parties. The Court is aware of the fact that if delay is not condoned, it would amount to dismissal of the appeal at the threshold and there is no presumption that the delay caused by the appliacnt is deliberate. In view thereof, the words ‘sufficient cause’ under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. Even, the reasons stated appear to be bonafide and genuine. There is no smack of malafide or dilatory tactics on the part of the applicant.

In view of the above, the delay of 129 days caused in filing the restoration application, as explained in paragraphs 3 and 4, is condoned. The captioned criminal appeal is restored to its file.

The Criminal Misc. Applications are accordingly allowed. Rule made absolute.

(A.Y. KOGJE, J.)

(HASMUKH D. SUTHAR, J.)

/MOINUDDIN