1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2496 OF 2009 IN CRIMINAL APPLICATION NO. OF 2009 IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra Applicant versus Rajesh Babaji Sawant and others Respondents Mrs.P.P.Shinde, APP for State. Mr.Anas Shaikh i/by Jamila Shaikh and Associates for respondent nos.1, 9 and 12. CORAM : B.H.MARLAPALLE AND MRS.MRIDULA BHATKAR, JJ. DATE : 04th May 2010 PC : 1. Heard Mrs.Shinde, learned APP for the applicant-State of Maharashtra. An affidavit-in-reply has been filed on behalf of respondents to oppose this application for condonation of delay and we have perused the same. 2. In Sessions Case No.828 of 2004 and 82 of 2005, twelve accused persons were put on trial and the learned Additional Sessions Judge for Greater Mumbai by his judgment and order dated 28th April 2008 was 2 pleased to acquit all of them. Hence, the State has filed an application for seeking leave to appeal under section 378(3) of the Code of Criminal Procedure, but belatedly. This application prays for condonation of delay which is about 293 days. 3. As directed by us, Mrs.Lata R. Chheda, the learned Additional Public Prosecutor in the Sessions Court, at Mumbai has filed her affidavit explaining the delay caused. The reply filed by the respondents states that the delay caused of 293 days has not been explained properly. Therefore, there is no case made out to condone the same. It has been more particularly pointed out that when the judgment and order in Sessions Case No.828 of 2004 was rendered on 28th April 2008, for the first time the office of the learned Additional Public Prosecutor filed an application on 10th February 2009 for a certified true copy, and, thus, no explanation has been furnished as to why the Public Prosecutors' office required almost ten months to apply for the certified true copy. It has been further pointed out that the proposal seeking leave sanction from the Government was also submitted belatedly i.e. on 16th April 2009 and no explanation was furnished. 4. It is clear from the affidavit filed by Mrs.Lata R. Chheda that the original complainant waited for more than three months for the State to file an appeal against the order of acquittal and finally approached this Court by a Criminal Revision Application. When the learned A.P.P. from the High Court inquired as to whether the State Government had taken steps to 3 challenge the order of acquittal, it appears that the Public Prosecutors' office applied for a certified true copy. It is, therefore, prayed that the substantial portion of delay is attributable to the office of Additional Public Prosecutor at the Sessions Court. Mrs.Lata Chheda was present before us and we have noted the assurance given by her as well as the explanation furnished by her. We are satisfied that the delay caused was not deliberate and it was pointed out that initially an application for certified true copy was made within time but it was not traceable and, therefore, a fresh application was submitted in February 2009. 5. Be that as it may, we are of the opinion that the delay caused of 293 days in moving an application for seeking leave to appeal deserves to be condoned in the peculiar circumstances of this case. 6. Hence, the criminal application is allowed in terms of prayer clause (b). (MRS.MRIDULA BHATKAR, J.) (B.H.MARLAPALLE, J.) 4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. OF 2009 IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra Applicant versus Rajesh Babaji Sawant and others Respondents Mrs.P.P.Shinde, APP for State. Mr.Anas Shaikh i/by Jamila Shaikh and Associates for respondent nos.1, 9 and 12. CORAM : B.H.MARLAPALLE AND MRS.MRIDULA BHATKAR, JJ. DATE : 04th May 2010 PC : 1. Heard Mrs.Shinde, learned A.P.P. for the applicant-State. We have perused the order of acquittal passed on 28th April 2008 by learned Additional Sessions Judge for Greater Mumbai in Sessions Case No.828 of 2004 and 82 of 2009. The Trial Court noted that so far as accused nos. 7 to 10 and 12 were concerned, there was nothing brought on record by the prosecution in support of its charge against them and, therefore, the Trial Court noted that in causing unnatural death of Balu, there was no material against accused nos.7 to 10 and 12. This reasoning, in our opinion, does not require any reconsideration. 5 2. Hence, leave to appeal is granted only against respondent nos.1 to 4, 6 and 11. 3. The criminal appeal is admitted against the said respondents. 4. An action under section 390 of the Code of Criminal Procedure to be taken by the Trial Court. 5. Criminal Revision Application No.365 of 2008 to be tagged with this appeal. (MRS.MRIDULA BHATKAR, J.) (B.H.MARLAPALLE, J.)