Judgment :- 1. This appeal is against an order of acquittal. The appellant is Kerala State Electricity Board which figured as the complainant in the trial court. When this appeal came up for final arguments, a preliminary objection has been raised that the appeal is not maintainable since the application for special leave envisaged in S.378(4) of the Code of Criminal Procedure (for short 'the Code') was filed long after the expiry of the period of sixty days of the date of the order of acquittal. 2. S.378 of the Code contains provisions regarding appeals against acquittals. Sub-s. (4) enables the complainant (in a case instituted upon complaint) to present the appeal from an order of acquittal with special leave granted by the High Court "on an application made to it by the complainant in this behalf". Sub-s. (5) says that "no application under sub-s.(4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal". The preliminary objection is based on the fact that no application was filed for the grant of special leave before the expiry of the aforesaid period. To examine the position, the following facts are to be stated. 3. The trial court acquitted the accused on 29-1-1986, and the appellant obtained a certified copy of the judgment on 28-2-1986. The time available to the appellant for filing the application for special leave is only sixty days computed from the date of the order of acquittal. As the appellant is entitled to get exclusion of the time for obtaining a certified copy of the judgment, the period of sixty days can be computed from 28-2-1986. Sixty days from the said date would have expired on 28-4-1986. The appellant, instead of filing an appeal, filed a petition for revision on 3-7-1986. The appellant later realised that no revision would lie and hence filed an application for converting the petition for revision into a petition for appeal. That application was allowed on 5-1-1987. Even till then, the appellant did not file the application for grant of special leave. For reasons known to the appellant, an application for special leave was filed only on 31-8-1988. That application was allowed on 5-1-1987. Even till then, the appellant did not file the application for grant of special leave. For reasons known to the appellant, an application for special leave was filed only on 31-8-1988. However, the said application was allowed exparte and special leave was granted. Learned counsel for the respondent now contends that the special leave granted without affording an opportunity to the respondent is not binding on him and that, at any rate, he has the right to point out the legal infirmity in the special leave. In answer to the said contention, it was argued that since the special leave was already granted, it is not open to any party to canvass for its revocation. Learned counsel further contended that grant or refusal of leave is a matter between the the appellant and the court and the respondent has no locus standi in the matter. In support of the said stand, learned counsel invited my attention to the decision of the Division Bench of the Assam High Court in Silchar Munpl. Board v. Mukul Chandra (AIR 1968 Assam 24). The Division Bench pointed out that "under S.417 (4), there is no provision for issuing notice or hearing the respondent before granting leave, the grant or refusal of the leave being purely a matter of discretion of the Court receiving the leave application". On the said reasoning, it was held that it is not open to the High Court to re-examine the validity of the order by which leave was granted. It is a case in which there was an application for condonation of delay involved in filing the application for special leave and the delay was condoned, of course, at the stage when the opposite party had not entered appearance. With great respect, I am unable to agree with the reasoning as it denies a respondent the right or voice in the matter of grant of special leave in any circumstance. If there is any legal hurdle in granting special leave the appellant may be reluctant to point it out since it would be to his detriment. The party who is aggrieved in the grant of special leave overlooking the legal embargo cannot be denied the right to canvass that the appeal is not maintainable on the ground of defective application for special leave. The party who is aggrieved in the grant of special leave overlooking the legal embargo cannot be denied the right to canvass that the appeal is not maintainable on the ground of defective application for special leave. It may be that special leave can be granted exparte at the early stage, but that is no ground to hold that the opposite party shall have no right at any stage to assail the validity of the special leave or the sustainability of the application for it. If the respondent can have the right to question the sustainability of the order or the application by challenging it before a higher court, he must also have the right to bring it to the notice of the court which granted the special leave since he did not have such an opportunity earlier. 4. A constitution bench of the Supreme Court has held in Indo China S. Navion. Co. v. Jasjit Singh (AIR 1964 S. C. 1140) that it is open to the respondent to contend that special leave should not have been granted. The court observed as follows: "Even in cases where special leave has been granted with exparte hearing of the matter on the petition of the appellant for special leave, the respondent can, at the final hearing, raise a preliminary contention that special leave should not have been granted since the decision, judgment or order appealed against has not been pronounced either by a court or a tribunal within the meaning of Art.136(1) of the Constitution". Learned counsel for the appellant distinguished the said decision on the premise that Art.136(1) of the Constitution does not contain a ban similar to S.362 of the Code. But it is to be remembered that S.362 of the Code applies only to judgments or final orders signed by the presiding officer of the court by which the cases are disposed of. That Section has no application to interlocutory orders, or other orders passed during the intermediary stages of the trial or appeal. By granting special leave, the appeal is only brought in and not disposed of. If is of advantage in this context to refer to an early Division Bench decision of this Court in Catholic Union Bank Ltd. v. Antony (1960 KLT 1186). By granting special leave, the appeal is only brought in and not disposed of. If is of advantage in this context to refer to an early Division Bench decision of this Court in Catholic Union Bank Ltd. v. Antony (1960 KLT 1186). While dealing with the scope of S.417(3) of the old Code (which corresponds to S.378 of the present Code), the Bench has held that the decision on the petition for special leave to appeal cannot amount to a decision in an appeal that that the appeal is competent. The relevant observations of the Division Bench are the following: "Merely because leave has been granted, it does not preclude the court, when the true facts are brought before it, from going into the question whether the appeal is competent". In Raja Ram v. Ram Achal (AIR 1962 All. 6), a Division Bench has held that "the mere admission of an appeal or the mere grant of permission to file one does not conclude the matter in favour of the person to whom leave is granted or whose appeal is admitted, at the final hearing the question with regard to the maintainability of an appeal can always be raised". A single judge of the same High Court, while flowing the aforesaid ratio has observed in State v. Iswar Saran (AIR 1964 All. 497) that the objection regarding the maintainability of an appeal on legal grounds can be raised at any stage and the permission which has been granted for filing the appeal cannot be pleaded as a bar at the time of hearing. A single judge of Rajasthan High Court has observed, in a similar situation as this, in the following lines. "In may considered opinion there is nothing to prevent a respondent from raising a preliminary objection that the appellant could not have been granted leave to appeal on account of the application having been filed after the expiry of sixty days" (Mst. Dhani v. State (AIR 1965 Rajasthan 70)). It seems to me that the preponderant view is. in favour of the right of the respondent to question the maintainability of the appeal despite the initial grant of special leave exparte. 5. Dhani v. State (AIR 1965 Rajasthan 70)). It seems to me that the preponderant view is. in favour of the right of the respondent to question the maintainability of the appeal despite the initial grant of special leave exparte. 5. There is no material in this case to show that while granting special leave, this court considered whether the application is entertainable in view of the embargo contained in S.378(5) of the Code, Apparently, the application for special leave was filed two years after the expiry of the period of sixty days contemplated in the sub-section. Learned counsel, with a view to save this appeal, contended that the court can condone the delay by invoking S.5 of the Limitation Act, 1963 even without a formal application in that behalf. Even assuming for arguments' sake that S.5 of the Limitation Act could be invoked without a formal application in that behalf, there must be material on record to satisfy the court that the appellant had sufficient cause to explain the delay. But there is no such material in this case to explain the delay till 3-7-1986 when the petition for revision was filed. Hence there is no scope to apply S.5 of the Limitation Act. I, therefore, uphold the preliminary objection raised by the learned counsel for the respondent. As the appeal is not maintainable, it is dismissed.