STATE OF SIKKIM Vs. GANESH DHAKAL

JUDGEMENT

(1.) A delay of 578 days has occurred on the part of the Prosecution in filing the Appeal under Sec. 377(1)(b) and (3) of the Code of Criminal Procedure, 1973. The instant I.A. has been filed seeking condonation of such delay.

(2.) Learned Additional Public Prosecutor submits that the Appeal assails the Judgment dtd. 26/8/2021 and Order on Sentence dtd. 31/8/2021, as the Respondent was a government employee and convicted for the offence of rape under Sec. 376(1) of the Indian Penal Code, 1860, when he ought to have been convicted and sentenced as per the provisions of Sec. 376(2)(b) and (c) of said Code. Advancing grounds for the delay, Learned Additional Public Prosecutor submitted that sixty days thereafter would be afforded to the Prosecution to file the Appeal post the pronouncement of the Order on Sentence. Meanwhile, on 16/11/2021, the Respondent filed an Appeal assailing the aforementioned Judgment before this Court. When the said matter was being heard on 10/4/2023 by this Court, it came to the notice of the Petitioner/Appellant herein, that, the Respondent was a government employee and was posted in the Indian Reserve Battalion, at Yangang, Namchi District and by virtue of his employment he ought to have been convicted under the above provisions as already agitated. Hence, on 12/4/2023, the Learned Additional Public Prosecutor forwarded a letter to the Director General of Police intimating him that in Crl. A. No.14 of 2021 (Ganesh Dhakal vs. State of Sikkim) pending before this High Court the Additional Public Prosecutor had sought some time to take steps in the matter for enhancement of sentence. On 13/4/2023, the Legal Officer of the Police Headquarter was also of the opinion that Appeal could be preferred. On 6/5/2023, the Deputy Inspector General of Police was of the same opinion. On 11/5/2023 the File was forwarded to the office of the Advocate General for necessary opinion. On 17/5/2023, the Additional Advocate General also opined that an Appeal could be preferred and the File was thus processed on the same day for obtaining government approval. On 19/5/2023 the approval of the government was obtained and the File forwarded to the office of the Advocate General on 23/5/2023. Thereafter, the Appeal was filed before this Court on 26/5/2023 by which date a delay of 578 days had ensued. That, in view of the issue involved as argued, the delay being bona fide may be condoned as it was unintentional and the grounds put forth sufficiently explain the delay.

(3.) Learned Counsel for the Respondent objecting to the prayer for condonation of delay submitted that no indulgence should be afforded to the Petitioner/Appellant for the delay caused as it would seriously prejudice the Respondent. That, the issue of the government employment of the Respondent was evident during the trial before the Court of Learned Judge, Fast Track, South and West, at Gyalshing, however, the Prosecution during the entire trial failed to take any steps in this context or draw the attention of the Learned Trial Court to the issue and hence it cannot be raised now belatedly to the disadvantage of the Respondent. Besides the Prosecution has failed to explain the delay on a day to day basis and has put forth only excuses, which thereby deserve no consideration and the Petition ought to be dismissed outright.