STATE Vs. VIKAS YADAV AND ANR.

JUDGEMENT

(1.) THIS is an application seeking condonation of delay in filing of the accompanying appeal. A preliminary objection has been taken by the respondents that the accompanying appeal which has been filed by the Government of NCT of Delhi is not maintainable as it is not the prosecuting State. This order proposes to settle this objection. The accompanying appeal has been filed on behalf of the State (Government of NCT of Delhi) under Section 377(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the =Cr.P.C') against the order on sentence dated 30.05.2008, whereby the respondents were sentenced to undergo life imprisonment for the offence under Section 302/34 IPC along with a fine of Rs 1 lac, in default whereof, they were to undergo simple imprisonment for one year. The respondents were also sentenced to undergo rigorous imprisonment for ten years in respect of the offence under Section 364/34 IPC along with a fine of Rs 50,000/ - each, in default whereof, they were to further undergo simple imprisonment for six months. The respondents were also sentenced to undergo rigorous imprisonment for five years in respect of the offence under Section 201/34 IPC and to pay a fine of Rs 10,000/ - each, in default whereof, they were to undergo simple imprisonment for a further period of three months. The aforesaid order on sentence dated 30.05.2008, passed by the learned Additional Sessions Judge was pursuant to the judgment dated 28.05.2008, whereby the respondents were convicted by the said Additional Sessions Judge, Delhi for the aforesaid offences in Sessions Case No. 78/2002, which arose out of FIR No. 192/2002 registered at Police Station Kavi Nagar, Ghaziabad. In the appeal under Section 377(1) Cr.P.C, the State (Government of NCT of Delhi) is seeking enhancement of sentence of the respondents from life imprisonment to death sentence for the offence under Section 302/34 IPC and from five years to seven years for the offence under Section 201 IPC.

(2.) AS pointed out in the order dated 25.03.2008, when the accompanying appeal came up for admission, the counsel for the respondents, i.e., the convicted persons, opposed even the issuance of any notice on the present condonation of delay application [Crl.M.A. 13400/2008], seeking condonation of delay of about 48 days in the filing of the accompanying appeal. It is submitted on behalf of the respondents that the State (Government of NCT of Delhi) could not have filed the appeal at all inasmuch as the Government of NCT of Delhi is not the prosecuting State. According to the learned Counsel for the respondents, the prosecuting State is the State of U.P inasmuch as the alleged offences occurred within the territory of Uttar Pradesh and the case itself emanated from FIR 192/2002 registered at Police Station Kavi Nagar, Ghaziabad, U.P. It was contended that the case was initially being tried as Criminal Case No. 192/2002 before the District and Sessions Judge, Ghaziabad, U.P and it is only pursuant to the Supreme Court order dated 23.08.2002, passed in Transfer Petition (Criminal) No. 449/2002, that the trial of the case was transferred from Ghaziabad to the Sessions Court in Delhi. According to the learned Counsel for the respondents, the transfer of the case from Ghaziabad, U.P to the Sessions Court in Delhi did not result in the change of the prosecuting State which, according to them, continued to be the State of U.P.

(3.) THE learned Counsel for the State of U.P was also heard, who took a half -hearted stand that the State of U.P was the prosecuting State. Mr P.K. Dey, who appeared on behalf of the de facto complainant, Mrs Neelam Katara, was also heard and he also submitted that it was the Government of NCT of Delhi which was the prosecuting State and not the State of U.P.