JUDGMENT - MOHTA V.A., J.: - This is State appeal (with application for leave) against an order of acquittal recorded in a special case instituted upon a police report. 2. Before dealing with the merits of the matter we would dispose of the preliminary point relating to limitation. What is the period of limitation for such appeals is the first question. It is contended on behalf of the State that as the complainant in this case is a public servant, limitation of six months, as contemplated under section 378 sub-section (5) of the Code of Criminal Procedure, 1973 would apply and as the appeal is field after 127 days, application for condonation of delay filed by the State was redundant and no question of condonation of delay arises. It seems to us that the position taken by the State is incorrect. In our view, section 378(5) is attracted only when an application is made by a complainant for a leave to challenge the order of acquittal recorded in a case instituted upon a complaint. This is an appal by the State against an order of acquittal recorded in a case instituted upon police report and is governed by section 378(1), (2) and (3) and the correct period of limitation is 90 days from the date of passing of the order appealed against, provided under Article 114 sub-article (a) of the Limitation Act 1963. 3. If pages of Legislative history of appeal against order of acquittal are turned, it would be noticed that such aright was recognised for the first time by the Code of Criminal Procedure, 1872 and that to in favour of Government only. Private party had no such right until the amendment of the 1898 Code by Act No. 26 of 1955, section 417 sub-section (3) of the Old Code, as amended, permitted such a right to a complainant in a case instituted upon a complaint, provided special leave to appeal was obtained from the High Court. Right of appeal given to the Government under section 417 sub-sections (1) and (2) had no condition of leave attached to it. However, it had one limitation. If the order of acquittal was recorded in a complaint case and if the complainant's application for special leave to appeal in the matter was rejected, Government's right to appeal under section 417(1), (2) would also come to an end. However, it had one limitation. If the order of acquittal was recorded in a complaint case and if the complainant's application for special leave to appeal in the matter was rejected, Government's right to appeal under section 417(1), (2) would also come to an end. Section 378 of the new Code corresponds with section 417 of the old Code. Considering the fact that unlimited and general right given to the State against any order of acquittal was rare, in Anglo-American countries, the Law Commission in its 48th report re-examined the subject and recommended one more limitation on the right with a view to remove disparity between the right of an individual and the State in the matter. Accepting the recommendations, section 378(3) was enacted and even the right of appeal to the Government under section 378(1) and (2) was subjected to the condition of leave to be obtained from the High Court. The provision barring appeal by the State against an order of acquittal in a complaint case, in case leave to the complainant against the said acquittal was refused by the High Court, was retained by having corresponding provision in section 378 sub-section (6) 4. For quite some time there was debate before us as to whether there was at all any right of appeal to the Government against order of acquittals in a case instituted upon a complaint. Now considering the employment of wide words, “in any case”, in section 378(1) and (2), there appears no scope to doubt that State has a right to prefer an appeal even against the order of acquittal recorded in cases instituted upon complaint. Right of the State to challenge the order does not depend upon who instituted the case and how. Quite obviously the logic behind the provision is that every crime is against a society and it is not necessarily a matter of concern between warring individuals. 5. Article 114(a) of the Limitation Act, 1963 governs the limitation of appeals by Governments under section 417(1) and (2) of the old Code and Article 114(b), of appeals by complainants in a complaint case under section 417 sub-section (3). 5. Article 114(a) of the Limitation Act, 1963 governs the limitation of appeals by Governments under section 417(1) and (2) of the old Code and Article 114(b), of appeals by complainants in a complaint case under section 417 sub-section (3). Even after coming into force of the Code of Criminal Procedure, 1973, corresponding provisions in Article 114 of the Limitation Act were not altered and the question is whether the said Article continues to govern the limitation in cases covered by section 378(1) and (2) of the New Code which are in pari materia with the old section 417(1) and (2), despite the newly added condition of obtaining leave, attached to such right by section 378(3). The contention is that a obtaining of leave has become mandatory even for the State to file an appeal against acquittal, Article 114 sub-article (a) of the Limitation Act cannot continue to apply and inevitably resort will have to be taken to section 378(5), in which alone limitation in the matter of challenging all acquittals is mentioned. It is difficult to accept this submission, in view of the clear provision of section 378(4), which in terms refers only to applications by complainant in cases instituted upon “complaint” - a term defined under section 2(d) of the Code, as specifically excluding police report. True it is that explanation to section 2 sub-section (d) provides that even a report made by a Police Officer in a case which discloses after investigation the commission of non-cognizable offence is deemed to be a complaint; but that aspect of the matter would have no impact on the question before us. 6. True it is again that section 378 sub-section (5) does not specifically refer to a “complaint” case as such, but quite obviously it refers to applications contemplated under section 378(4) and to no other. Thus section 378 sub-section (5) governs only limitation of applications for leave by a complainant in a complaint case and it does not touch the cases governed by section 378(1) and (2). Thus section 378 sub-section (5) governs only limitation of applications for leave by a complainant in a complaint case and it does not touch the cases governed by section 378(1) and (2). No doubt, for the first time classification has been made between the complaints made by a public servant and a private individual in section 378(5) but that distinction is only for the purposes of providing enlarged period of limitation of six months in the former type of complaint cases, the obvious object being to provide more breathing time to public servants to perform several official formalities for preparation of applications for leave. Its object is not to equate the right of the Government under section 378(1) and (2) with the right of the other complainants (including public servants) in the matter of moving the High Court for leave to appeal. It is thus difficult to hold that section 378 sub-section (5) is attracted only because the complainant is a public servant, irrespective of the nature of the case and irrespective of who is the applicant and who has applied for leave. Then what provision relating to limitation governs the right to challenge the order of acquittal under section 378(1) and (2)? If Article 114(a) of the Limitation Act continues to govern, how does Government apply for leave? These points are no more res integra. In the case of (State of Rajasthan v. Ramdeen)1, A.I.R. 1977 S.C. 1328 this is what the Supreme Court has to say: “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 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. Under the law it will 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 take 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) Criminal Procedure Code 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 Criminal Procedure Code which is likely to affect adversely or even perhaps to destroy that right. 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, whereas 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 Criminal Procedure Code. 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 Criminal Procedure Code. If the leave sought for is not granted by the High Court, the appeal is not entertained and stands dismissed.” It is pertinent to notice that the starting point of limitation of 90 days for filing an appeal under Article 114(a) is the date of the order appealed against and starting point of limitation of 30 days to file an appeal in cases governed by Article 114 sub-article (b) is the date of grant of special leave. 7. This appeal has been filed within 127 days and is, therefore, late by 37 days. Though we have held that the appeal is barred by time, we are clearly of the opinion that the application for condonation of delay has to be allowed as the delay has been explained by filing an affidavit of a responsible officer of the Law and Judiciary Department. There is no reason to disbelieve the statement made therein, especially when there is no counter affidavit. Appeal dismissed. -----