STATE OF U P Vs. HARPAL

JUDGEMENT

(1.) GIRIDHAR Malviya, J. Heard the learned Government counsel and perused this application for condonation of delay. I have no hesitation to mention at the very outset that this application is totally misconceived and is filed in bad taste. The allegations as made do not appear to be having any legs to stand. In any case what the office of the Government Advocate and the State ought to have done was that after they had come to know in the instant case that the name of the respondent had been wrongly mentioned in Government Appeal No. 90 of 1992 they should immediately have moved an application for rectifying the said mistake in the memorandum of appeal Government Appeal No. 90 of 1992. As a matter of fact even if the stage of admission this fact would have been brought to my notice that in the memorandum the name of Harpal had been wrongly printed as Ismail. I would have permitted the said typing mistake to be corrected even on an oral request made by learned Govt. counsel. However, what appears to have happened is that the file of the learned. Counsel appearing in my Court had not been sent to him at all and I had to go through the judgment to check whether this was a fit case for admission or issue of notice or not. While going through the judgment it was not obviously possible for as to check the names of the respondents as even if I would have myself noticed that against two persons government appeals had been filed wherein the names of accused had been mentioned as Ajai Kumar alias Pappu and Ismail and not accused Harpal and Ismail, I would have myself asked the Government counsel to make the necessary correction in that regard. Instead of adopting this simple procedure the present application for condonation of delay has been made for which there may or there may not be substance what-so every. I would not even hesitate to add at this stage that as a Government counsel the checking of the names of the parties on the memorandum of appeal can never be considered to be the task of the counsel as such. The Government counsel is only expected to dictate the facts of the case and the grounds of appeal etc. Where after typing out the names of the parties etc. , are expected to be the work of the office of the Government Advocate. It was obviously a matter of either negligence of some person or whether it was a deliberate act, could have been a matter of enquiry but this certainly does not justify a fresh appeal being filed in this case when I have already admitted Government Appeal No. 90 of 1992 against the order of acquittal in Sessions Trial No. 47 of 1990 in which there were only two accused person's and one of the accused person's name was scribed incorrectly in the memorandum of appeal. In any case the present application is patently silent as to on which date defect was detected and thereafter what transpired day after day for filing the present ap plication along with another Government appeal. The result is that there is no proper explanation for delay either in this case to warrant condonation of delay. However as observed by my earlier there was no need of any fresh Government appeal being filed once there was already a Government appeal earlier filed in the instant case, against two persons. At the best if an application for correc tion of the name would have been moved in the other matter, it could have been examined whether the correction being merely a clerical error could have been permitted or whether notice in that regard ought to have gone to the other respondent.

(2.) ACCORDINGLY this application under Section 5, Limitation Act is dismissed being mis-conceived. It is also made clear that rejection of this application would not operate as a bar if the State of U. P. chose to move an application to correct the name of the parties in the memorandum of Government Appeal No. 90 of 1992. Application dismissed. .