Criminal Appeal No 343 of 1976
Appeal by Special Leave from the Judgment and Order dated 27 1 1975 of the Rajasthan High Court in DB Crl
Appeal No 57574 SM Jain I Makwana and D Shandari for the appellant
Doongar Singh and SK Garnbhir for the respondents
The Judgment of the Court was delivered by GOSWAMI J
The respondents were tried by the Sessions Judge Merta Rajasthan for offences under sections 302 302149 and some other minor sections of the Indian Penal Code
Respondent Goparam was acquitted of all the charges
The other respondents also were acquitted of the charges under sections 302 and 302149 IPC
Respondent Sangram was convicted under section 304 Part 11 IPC
Respondent Dayal ram was convicted under section 324 IPC
Respondents Budharam and Ramdeen were convicted under section 323 140 Being aggrieved by the judgment of the Sessions Judge the State of Rajasthan preferred an appeal against acquittal of the major charges under section 378 of the Code of Crimi nal Procedure 1973
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
It appears that the State of Rajasthan preferred a petition for leave to appeal under section 3783 of the Code of Criminal Procedure 1973 on June 27 1974 which was within the period of limitation prescribed under article 114b of the 
Article 114a of the  provides for a period of limitation for appeal from
an order of acquittal under subsection 1 or sub section 2 of section 417 of the Code of Criminal Procedure 1898 hereinafter to be described as the Old Code
The being an act of the year 1963 does not naturally refer to section 378 of the Code of Criminal Procedure Code 1973
Section 378 of the Code of Criminal Procedure 1973 is equivalent to section 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 section 4173 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 con cerned provision for special leave to appeal in any case instituted upon complaint has been retained in the new Code
Unlike in the Old Code section 3783 provides that no appeal under sub section 1 or sub section 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
Since the State flied 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 section 3783 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 section 3873 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 rounded 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 article 114e of the 
The High Court dismissed the appeal on January 27 1975 as time barred
In view of section 8 of the  it is not disputed before us that article 114a is applicable in this case
The respondents however submit that the petition of appeal should have 141 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 condona tion of delay the High Court had no alternative then 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 leave of the High Court
It was therefore incumbent upon the appellant to have preferred the petition of appeal within ninety days as prescribed under the law
The High Court also while refusing leave to appeal to the Supreme Court observed in its order that the practice of this court is that separate memo of appeal has to be filed in all matters relating to the grant of leave to appeal under section 378 Cr P C
It is difficult to appreciate the reference to practice by the High Court so far as appeals by State are concerned when the new Code of Criminal Procedure for the first time provided for obtaining leave to appeal by the State only from April 1 1974
It is admitted that there are no rules laid down by the High Court in the matter of application for leave to appeal by the State
It is therefore not possi ble to decide the matter relying upon the so called practice soon after the provision has been introduced
The matter will therefore have to be decided in terms of section 3781 and 3 of the Code of Criminal Procedure 1973
Section 3781 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 applica tion filed before it does not in law solve the legal issue
The right conferred by section 3781 Cr
PC upon the State to prefer an appeal against acquittal will be jeopardised 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
PC which is likely to affect adversely or even perhaps to destroy that right
Besides under article 114 of the  in an appeal from an order of acquittal by the State the period of limitation is 142 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 there fore not fiecessary to wait until the grant of leave by the High Court to present a memorandum of appeal against acquit tal 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
If the leave sought for is not granted by the High Court the appeal is not entertained and stands dis missed
We are therefore clearly of opinion that the application for leave to appeal which was made by the State in this case is equivalent to a memorandum of appeal under section 3731 read with sub section 3 of that section of the Code of Criminal Procedure 1973
The fact that the application mentioned section 3783 is not deci sive of the true character of the applicant1on which to all intents and purposes was a memorandum of appeal
There was There was therefore no need for presentation of a second petition of appeal nor for an application for condonation of delay in this case
The petition of appeal was filed within time and the High Court committed an error of law in dismissing the same as time barred
In the result the appeal is allowed
The order of the High Court is set aside
The petition of appeal of June 27 1974 shall be restored to the file of the High Court and treated as a memorandum of appeal under section 3781 of the Code of Criminal Procedure 1973 and since leave had already been granted by the High Court the appeal will be disposed of in accordance with law
Appeal allowed


Summary:
The State filed an application under section 3783 of the CrPC 1973 for leave to appeal against the acquittal of the respondents of the charges under section 302 and 302149 IPC by the Trial Court
The application although made under section 3783 contained all the requisites for a memoran dum of appeal
The High Court granted the appellant leave to the appeal but dismissed the appeal filed thereafter on the ground that it had not been filed within ninety days of the date of judgment appealed from and was therefore time barred under article 114a of the 
Allowing the appeal by special leave the Court HELD 1 The High Court has not laid down any rules in the matter of application for leave to appeal by the State
The matter will have to be decided in terms of section 3781 and 3 of the Code of Criminal Procedure 1973
An 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
The appeal may otherwise become time barred if the High Court takes more than ninety days for disposal of the application for leave and refuses to exercise its jurisdiction to condone the delay
The right conferred under the section cannot be put in peril by an interpretation of section 378 Cr
PC which is likely to affect adversely or even perhaps to destroy that right
141 C H 2 The fact that the appellant s application mentioned section 3783 is not decisive of the true character of the application which to all intents and purposes was a memoran dum of appeal
142 C D