Delhi High Court
State vs Vikas Yadav & Anr on 7 August, 2009
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed, P. K. Bhasin
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 07.08.2009
+ Crl. M. A. 13400/2008 in CRL. A 958/2008
STATE ... Appellant
- versus -
VIKAS YADAV & ANR ... Respondents
Advocates who appeared in this case:
For the Appellant : Ms Mukta Gupta, PP For the Respondent No.1 : Mr U. R. Lalit, Sr Advocate with Mr Sumeet Verma and Ms Charu Verma For the Respondent No.2 : Mr D. C. Mathur, Sr Advocate with Mr Sanjay Jain and Mr Mukesh Kumar For the complainant : Mr P. K. Dey with Mr Kaushik Dey For the State of U. P. : Mr Sakha Ram Singh, Sr Advocate with Mr Sahdev Singh and Mr Kamlendra Mishra CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE P. K. BHASIN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes BADAR DURREZ AHMED, J
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 Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 1 of 27 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 Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 2 of 27 377(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 Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 3 of 27 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. On the other hand, the learned counsel for the State of Delhi submitted that since the trial had been transferred to the Sessions Court in Delhi by virtue of the Supreme Court order dated 23.08.2002, the Government of NCT of Delhi became the prosecuting State. She submitted that the order of conviction and the order on sentence, which are impugned herein, were passed by the learned Additional Sessions Judge, New Delhi and the appeal was competent only before the Delhi High Court. She submitted that this fact stands concluded by virtue of the Supreme Court order dated 22.10.2008, passed in SLP (Criminal) 5368/2008, entitled Vikas Yadav v State of U.P, whereby the respondent Vikas Yadav's Special Leave Petition against the order passed by a Division Bench of the Allahabad High Court on 10.07.2008 in Criminal Appeal No. 4154/2008 which, in turn, was directed against the impugned judgment dated 28.05.2008 and order on sentence dated 30.05.2008 passed by the learned Additional Sessions Judge, New Delhi, was dismissed by the Supreme Court as having no merit. The Allahabad High Court, by virtue of the order dated Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 4 of 27 10.07.2008 had come to the conclusion that the appeal under Section 374 Cr. P.C by the convict Vikas Yadav was not maintainable before the Allahabad High Court inasmuch as the order of conviction and order on sentence had been passed by the learned Additional Sessions Judge in New Delhi, which was outside the territorial jurisdiction of the Allahabad High court. Consequently, Ms Mukta Gupta appearing for the State of Delhi, submitted that the issue that it was the Delhi High Court and not the Allahabad High Court which could entertain an appeal from the impugned judgment and order on sentence, had been settled by the dismissal of the Special Leave Petition by virtue of the Supreme Court's order dated 22.10.2008. It was, therefore, contended that the State of U.P. no longer retained control over the case and that the transfer of the case from Ghaziabad to the Sessions Court in Delhi also resulted in the change of the prosecuting State from the State of U.P to the Government of NCT of Delhi.
4. 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. Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 5 of 27
5. To appreciate the arguments, it would be necessary to set out the sequence of events relevant for the purposes of determining the question as to whether the Government of NCT of Delhi is the appropriate State and consequently whether the appeal under Section 377(1) Cr.P.C could have been filed by Government of NCT of Delhi?
6. As noted above, FIR No. 192/2002 was registered at Police Station Kavi Nagar, Ghaziabad. The offence was allegedly committed within the State of U.P. The trial also was proceeding before the District and Sessions Judge, Ghaziabad, U.P in Criminal Case No. 192/2002. A Transfer Petition (Criminal) No. 449/2002 was filed before the Supreme Court by the mother (Mrs Neelam Katara) of the deceased Nitish Katara, who is alleged to have been abducted and murdered by the respondents herein. The Supreme Court noted that from the narration of facts as well as materials on record, the atmosphere at Ghaziabad was not congenial for the continuance of the criminal proceedings and that the apprehension of the mother (Mrs Neelam Katara) could not be said to be fanciful nor could it be said to be unfounded. Consequently, the Supreme Court directed that the Criminal Case No. 192/2002 entitled State v Vikas Yadav: Police Station- Kavi Nagar, Ghaziabad, pending before the Court of the District and Sessions Judge, Ghaziabad, U.P be transferred to the Sessions Court in Delhi.
Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 6 of 27
7. It must be pointed out that when the trial was going on before the District and Sessions Judge, Ghaziabad, the State of U.P had appointed one Mr S. K. Saxena as the Special Prosecutor. By an administrative order dated 28.01.2004, Mr S. K. Saxena was removed from the position of Special Prosecutor. That order was challenged by Mrs Neelam Katara before the Supreme Court in Writ Petition (Criminal) 25/2004. By an order dated 26.03.2004, the Supreme Court, after hearing the counsel for the complainant, Mrs Neelam Katara, as also the counsel for the State of U.P and the State of Delhi and the counsel for the accused, who appeared as an intervener, observed that Mr Saxena, who had been removed as a Special Prosecutor had himself not challenged the impugned order and it appeared that he was not willing to continue as a Special Prosecutor. Therefore, the Supreme Court did not want to set aside the order dated 28.01.2004 as the case could be handled by any other able prosecutor. The Supreme Court noted that the counsel for the Government of NCT of Delhi had submitted that as the Sessions Case was being tried by the Additional Sessions Judge at Patiala House, the Special Prosecutor could be appointed by the Delhi Government. It was also observed that Government of NCT of Delhi had a panel of names and amongst the said names the name of Sh. K. K. Singh, Senior Prosecutor was also available for conducting the case as a Special Prosecutor. Importantly, Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 7 of 27 the counsel for the accused submitted that the accused would not have any objection if Sh. K. K. Singh was appointed as a Special Prosecutor. Consequent upon this, the Supreme Court directed:- ―the State of Delhi shall fix the remuneration payable to the Special Prosecutor Sh. K. K. Singh and the same shall be paid by the State of U.P‖. The writ petition was accordingly disposed of. Two circumstances which arose out of this order are important. The first circumstance is that Sh. K. K. Singh was appointed as the Special Prosecutor by the State of Delhi, though the remuneration was to be paid by the State of U.P. The second point of importance is that the counsel for the accused had no objection to this arrangement.
8. After the transfer of the case from Ghaziabad, U.P to the Sessions Court in Delhi, the same was numbered as Sessions Case No. 78/2002 and was heard by the learned Additional Sessions Judge, Patiala House Courts, New Delhi. During the pendency of the trial, a bail application bearing No. 2070/2004 had been moved before the Delhi High Court on behalf of the accused. The title given in the case was -- ―Vishal Yadav v. State (NCT of Delhi)‖. When the matter came up before a learned Single Judge of this Court on 18.03.2005, the learned counsel for the accused made an oral submission that there was a mistake in the cause title and that instead of ―NCT of Delhi‖, it should be read as ―the State of U.P‖. The learned Single Judge, without notice to either of the Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 8 of 27 States, directed that the said mistake be rectified and the cause title should show the respondent as the State of U.P and not as the State (NCT of Delhi).
9. Another proceeding in the shape of a writ petition being WP (Crl) 535-536/2005 entitled Vishal Yadav v. Lt. Governor and Another was filed before this Court. The matter came up before a learned Single Judge of this Court on 20.04.2005. A point was raised that the State of U.P also ought to have been arrayed as a party. The learned Single Judge ordered that the State of U.P be arrayed as respondent No.3. The said WP(Crl) 535-536/2005 had been filed by the respondents herein, seeking quashing of a letter dated 09.03.2005, issued by the Government of NCT of Delhi to Ms Mukta Gupta, Standing Counsel (Criminal), Government of National Capital Territory of Delhi, informing her that the competent authority had ―now directed that all matters emanating from FIR No. 192/2002 entitled State v. Vikas Yadav, which come before the Hon'ble High Court, would be conducted, prosecuted and defended by Ms Mukta Gupta, Standing Counsel (Criminal) in the Hon'ble High Court of Delhi‖. An interim order on 20.04.2005 was passed by a learned Single Judge of this Court on the said petition directing: ―till the next date of hearing, it is directed that whatever cases/ proceedings would be conducted, prosecuted and defended by Ms Mukta Gupta, standing counsel (Crl.) Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 9 of 27 for the State in the High Court of Delhi in relation to FIR No. 192/2002 titled as State Versus Prakash Yadav pursuant to the order dated 9.3.2005, it shall be so conducted, prosecuted and defended by her on behalf of the State of U.P. and not on behalf of the Government of NCT of Delhi‖.
10. Another bail application No. 1142/2005 had been filed on behalf of Vishal Yadav. That application was entitled ―Vishal Yadav v. State of U.P‖ and the order dated 06.10.2005, whereby bail was granted to the said Vishal Yadav by the learned Single Judge of this Court, indicated that the State of U.P was represented ―through Ms Mukta Gupta, Advocate for State‖.
11. Incidentally, the aforesaid Writ Petition (Criminal) 535-536/2005 was dismissed in default on 28.03.2008 but it was again restored by another learned Single Judge of this Court on 28.05.2008 and the interim orders were also directed to continue.
12. We have specifically referred to the orders passed in various proceedings before this Court during the pendency of the trial before the learned Additional Sessions Judge, New Delhi because it was contended on the part of the respondents that the orders passed therein and particularly the above mentioned orders dated 18.03.2005, 20.04.2005, 06.10.2005 and 28.05.2008 clearly indicated that Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 10 of 27 Ms Mukta Gupta, who was the Standing Counsel (Criminal) for the Government of NCT of Delhi was actually appearing on behalf of the State of U.P and not on behalf of the Government of NCT of Delhi. Secondly, it was submitted that throughout it was the State of U.P which has been prosecuting this case and, therefore, the present appeal is not maintainable as it has been filed by the Government of NCT of Delhi and not by the State of U.P.
13. As mentioned above, the impugned judgment was delivered by the learned Additional Sessions Judge, Patiala House Courts, New Delhi on 28.05.2008, whereby the respondents were convicted for having committed the offence under Section 364/302/201/34 IPC and thereafter the order on sentence dated 30.05.2008 was passed by the said learned Additional Sessions Judge. The respondent Vikas Yadav, being aggrieved by the impugned judgment and order on sentence, filed an appeal before the Allahabad High Court, being Criminal Appeal No. 4154/2008. A Division Bench of the Allahabad High Court by its order or judgment dated 10.07.2008, dismissed the said appeal on the ground of lack of territorial jurisdiction. The Allahabad High Court held that the provisions of Section 374 (2) Cr.P.C had a clear reference to the place of ‗conviction' and not the place where the offence was committed. Since the respondent Vikas Yadav had been convicted by the Sessions Court in Delhi, the appeal would not be maintainable Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 11 of 27 before the High Court at Allahabad. Being aggrieved by the said order dated 10.07.2008, passed by the Allahabad High Court, the respondent Vikas Yadav filed a Special Leave Petition (Criminal) being SLP (Criminal) 5368/2008 before the Supreme Court. By virtue of an order dated 18.09.2008, passed in that Special Leave Petition, the Supreme Court directed the impleadment of the Government of NCT of Delhi as a party respondent and also directed issuance of notice to the Standing Cousnel of the Government of NCT of Delhi. On 22.10.2008, when the matter came up before the Supreme Court after notice, the Supreme Court passed the following order:-
―NCT of Delhi will be treated as party respondent in this matter only.
We have heard learned counsel for the parties at length. We find no merit in this special leave petition. The special leave petition is, accordingly, dismissed.
In case an appeal is filed before Delhi High Court within a week, the delay, if any, in filing the appeal will be condoned.‖ It is thereafter that the respondent Vikas Yadav filed an appeal being Criminal Appeal No. 910/2008 before this Court. That appeal came up for admission on 31.10.2008, when, a Division Bench of this Court adjourned the matter to enable the counsel for the convict Vikas Yadav to produce orders/ documents which, according to the said counsel, showed that the Government of NCT of Delhi was not a necessary party. Thereafter, the relevant orders and documents were filed and the Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 12 of 27 matter came up for hearing on 02.12.2008, when a detailed order was passed. The delay in filing of the appeal was condoned and the appeal filed by Vikas Yadav was admitted but while doing so, the Court observed as under:-
―The appellant has impleaded State of U.P as the respondent. Though the learned counsel for the appellant has vehemently opposed the impleadment of Government of National Capital Territory of Delhi as a party and has referred to various orders passed from time to time by the Delhi High Court or Supreme Court in support of his contention that Government of NCT of Delhi is neither necessary nor proper party, but a perusal of the said orders, as a matter of fact, shows that in none of the orders relied upon such an observation that the Government of NCT of Delhi is not a necessary party or is not to be heard has been passed. As a matter of fact it would be expedient and in the interest of Justice to hear the Government of NCT of Delhi because the trial was conducted by the Court of Sessions in Delhi.
Considering the entirety of the facts and circumstances, we are of the opinion that it will be appropriate to hear the Government of National Capital Territory also for the disposal of the present appeal. The learned counsel, Mr.Vikas Singh who appears on behalf of State of U.P has no objection in case the Government of National Capital Territory of Delhi is also issued the notice and is heard for the decision of this appeal.
Consequently, notices are issued to the State of U.P and Government of National Capital Territory of Delhi. Notices are accepted by Mr.Kamlendra Mishra Advocate on behalf of State of U.P and by Ms.Mukta Gupta, Standing Counsel on behalf of Government of NCT of Delhi.‖ (underlining added) Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 13 of 27
14. In respect of the said order dated 02.12.2008, the de facto complainant Mrs Neelam Katara, filed a Special Leave Petition before the Supreme Court. The same was disposed of by the Supreme Court on 02.03.2009 by the following order:-
―Permission to file SLP is granted.
Heard learned counsel for the petitioner.
Learned counsel for the petitioner contends that the State of U.P. is unnecessary party in the case filed by the accused before the High Court and NCT of Delhi alone should have been made a party by the impugned order. The High Court was pleased to implead NCT of Delhi as party respondent before the High Court in the pending matter. The case was tried before the Additional Sessions Judge, Patiala House, New Delhi, and the appeal is preferred before the Delhi High Court and NCT of Delhi is a party. Of course Public Prosecutor appearing for the State of Delhi will assist the court in the appeal filed by the accused.
The special leave petitions are disposed of accordingly.‖ (underlining added) From the aforesaid, it was apparent that the Public Prosecutor appearing for the State of Delhi was to ―assist‖ the Court in the appeal filed by the accused. In other words, the Supreme Court did not set aside the order dated 02.12.2008.
15. Finally, after examining the orders passed by the Division Bench on 02.12.2008 and the order passed by the Supreme Court on 02.03.2009, whereby the Special Leave Petition challenging the Division Bench order of 02.12.2008, was disposed of by the Supreme Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 14 of 27 Court, a learned Single Judge of this Court by a judgment and order dated 16.03.2009, dismissed the Writ Petition (Criminal) 535/2005, whereby the validity of the letter dated 09.03.2005 appointing Ms Mukta Gupta to defend the case of the Government of NCT of Delhi in all proceedings emanating from FIR No. 192/2002 was challenged. The effect of the said order is that the earlier interim order dated 20.04.2005 no longer survives. The matter rests there.
16. The present appeal for enhancement of sentence has been filed under Section 377(1) Cr.P.C. The relevant provision reads as under:-
―377. Appeal by the State Government against sentence.
(1) Save as otherwise provided in sub-section (2), the State Government may in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy --
(a) to the Court of Session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court.
(2) xxxx xxxx xxxx
(3) xxxx xxxx xxxx‖
It is apparent that the appeal is to be filed by the State Government.
But the appeal is to be presented by the Public Prosecutor. It is the State Government who has to direct the Public Prosecutor to present the appeal before the High Court. Section 24 Cr. P.C refers to Public Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 15 of 27 Prosecutors. Section 24(1) Cr.P.C stipulates that for every High Court, the Central Government or the State Government, shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Public Prosecutors for conducting in such Court any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. It is apparent that the Public Prosecutor is appointed for a High Court. He/ she is appointed by the State Government after consultation with the High Court and it is the Public Prosecutor, who conducts any prosecution, appeal or other proceeding on behalf of the State Government in that High Court. It is obvious that the reference to High Court and State Government means High Court and State Government of the same State. It is only the State Government of State ‗A' which can appoint a Public Prosecutor for the High Court of State ‗A'. The Public Prosecutor so appointed would be the Public Prosecutor for State ‗A' in respect of any prosecution, appeal or other proceeding before the High Court of State ‗A'.
17. Going back to Section 377 (1) Cr.P.C, we again find the three expressions -- ―State Government‖, ―High Court‖ and ―Public Prosecutor‖. All of them have to be construed in the same manner. If we are referring to the State Government of State ‗A', then the reference to the High Court is also of State ‗A' and the Public Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 16 of 27 Prosecutor is also the Public Prosecutor appointed by the State Government of State ‗A', for the High Court of State ‗A'.
18. As noted above, the Allahabad High Court took the view in the context of the appeal filed by the respondent Vikas Yadav that Section 374(2) Cr.P.C has reference to a person convicted by a Sessions Judge or an Additional Sessions Judge and not to the place of the offence. Consequently, the Allahabad High Court was of the view that the appeal against the impugned judgment and order would not lie before it, although the offence is alleged to have been committed within the territory of U.P. The Allahabad High Court, as already mentioned above, took the view that the relevant High Court would be that, within whose jurisdiction the Sessions Court or the Additional Sessions Judge convicted the person. This view was challenged before the Supreme Court and the Special Leave Petition was dismissed by the said order dated 22.10.2008. However, the Supreme Court also made the observation that the Government of NCT of Delhi would be treated as a party respondent ―in this matter only‖. Based upon this observation, it was contended on behalf of the respondents that it was only for the purposes of the Special Leave Petition before the Supreme Court that the Government of NCT of Delhi was treated as the party respondent otherwise it was actually the State of U.P, which was the prosecuting State. We are unable to accept this argument. Even if we assume that Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 17 of 27 whatever the Supreme Court observed in the order dated 22.10.2008 was limited only to the Special Leave Petition before it, we find nothing in the Supreme Court order which prevents us from considering as to whether the State Government referred to in Section 377(1) Cr.P.C was the State of U.P or the Government of NCT of Delhi. Similarly, there is nothing in the order dated 02.12.2008, passed by a Division Bench of this Court in the appeal filed by the respondent, Vikas Yadav from which it could be construed that the Government of NCT of Delhi was not the prosecuting State and that it was only the State of U.P which could have filed the appeal under Section 377(1) Cr.P.C.
19. We have already indicated that, on going through the provisions of the Code of Criminal Procedure, the expressions --―the State Government‖, ―the High Court‖ and ―the Public Prosecutor‖, have reference to the State Government, High Court and Public Prosecutor of the same State. Section 377(1) cannot be read in a manner so as to enable the State Government of State ‗B' to direct the Public Prosecutor of State ‗A' to present an appeal before the High Court in State ‗A'. The State Government can issue directions only to the Public Prosecutor appointed by it in consultation with the High Court within the territory of the State.
Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 18 of 27
20. Now, let us examine the position with regard to transfer of a case from the District Court of one State to the District Court of another, pursuant to a direction given by the Supreme Court under Section 406 Cr. P. C.
21. In Hanumant Dass v. Vinay Kumar: (1982) 2 SCC 177 the main contention raised was that the transfer of the case from Dharamshala, lying within the territorial jurisdiction of the High Court of Himachal Pradesh, to Gurdaspur, lying within the jurisdiction of the Punjab & Haryana High Court, did not change the parties and the parties remained the same even after the transfer of the case from Dharamshala to Gurdaspur. It was contended that the State of Himachal Pradesh where the offence was committed was a necessary party and should have been impleaded in the appeal. It was submitted before the Supreme Court that, in the absence of the State of Himachal Pradesh as a party and in the absence of notice to the counsel for the State of Himachal Pradesh, the High Court was not justified in disposing of the appeal and its judgment was a nullity. The Supreme Court referred to various provisions of the Code of Criminal Procedure, 1973 including Section 2(u) [‗Public Prosecutor'], 24 [Public Prosecutors], 225 [Trial to be conducted by Public Prosecutors], 378 [Appeal in case of acquittal], 385 [Procedure for hearing appeals not dismissed summarily] and 432 [Power to suspend or remit sentences]. Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 19 of 27
22. Section 432, which authorises the ―appropriate‖ Government to suspend or remit sentences, reads as under:-
―432. (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion ....
(6) The provisions of the above sub-sections shall also apply to any order passed by a criminal court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.
(7) In this section and in Section 433, the expression ‗appropriate Government' means,--
(a) in cases where the sentence is for an offence against, or the order referred to in sub-
section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.‖ Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 20 of 27
23. From the various provisions referred to above, the Supreme Court held that it is evident that there shall be a Public Prosecutor for conducting any prosecution appeal or other proceeding on behalf of the Central Government or State Government in the High Court. The Supreme Court further observed that according to section 432(7), the ―appropriate‖ Government is the Government of the State of conviction and not the Government of the State where the offence was committed. The Court noted that:-
―A somewhat similar question came up for consideration in the State of M.P. v. Ratan Singh: [(1976) 3 SCC 470] where the respondent was convicted and sentenced to imprisonment for life by a court in the State of Madhya Pradesh. At his request he was transferred to a jail in the State of Punjab, to which State he belonged. He applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment. The application was sent to the Government of Madhya Pradesh, which rejected it. In a writ petition filed by him the High Court of Punjab & Haryana held that the State of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter. This Court in appeal observed ―a perusal of this provision clearly reveals that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of Section 401 of the Code of Criminal Procedure. Thus since the prisoner in the instant case was tried, convicted and sentenced in the State of Madhya Pradesh, the State of Madhya Pradesh would be the appropriate Government to exercise the discretion for remission of the sentence under Section 401(1) of the Code of Criminal Procedure....‖ Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 21 of 27
24. However, the Supreme Court in Hanumant Dass (supra) pointed out that Ratan Singh (supra) was a case based on Section 401 of the old Criminal Procedure Code, but the Code of Criminal Procedure, 1973, had put the matter completely beyond any controversy and reiterated the provisions of Section 402(3) in sub-section (7) of Section 4321.
25. In Jayendra Saraswati Swamigal (3) v. State of T.N.:(2008) 10 SCC 180 the Supreme Court considered the provisions of Section 24 Cr. P.C. It held:-
―11. Section 24(1) deals with the appointment of Public Prosecutor or Additional Public Prosecutor for conducting any prosecution, appeal or other proceedings on behalf of the Central Government or State Government in the High Court. Sub-section (3) of Section 24 requires that for every district, the State Government shall appoint a Public Prosecutor and one or more Additional Public Prosecutors. Sub-sections (3) to (7) deal with the appointment of Public Prosecutor and Additional Public Prosecutor for the district. The power of appointment is given to the State Government and such appointment should be from a panel of names prepared by the District Magistrate in consultation with the Sessions Judge. Sub-section (7) of Section 24 provides that a person shall be eligible to be appointed as a Public Prosecutor or as an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub- section (3) or sub-section (6) only if he has been in practice as an advocate for not less than seven years. A conjoint reading of all these provisions would clearly show that the 1 Section 402(3)(b) of the old Code was -- ―(b) in other cases, the State Government‖. Section 432(7)(b) of the 1973 Code is -- ―(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed‖.Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 22 of 27
State Government has the power of appointment of Public Prosecutor or Additional Public Prosecutor for each district or Court of Session in the sessions division in the State to conduct any prosecution, appeal or other proceedings pending before the courts in that State. The power of the State Government to appoint a Public Prosecutor and Additional Public Prosecutor would extend only for conducting any prosecution, appeal or other proceedings in the courts within the State.‖ (underlining added) The Supreme Court further held:-
―12. As per the procedure prescribed under Section 24, the State of Tamil Nadu can appoint a Public Prosecutor to conduct criminal cases in any of the court in that State. Such powers cannot be exercised by the State Government to conduct cases in any other State. Once the case is transferred as per Section 406 CrPC to another State, the transferor State no longer has control over the prosecution to be conducted in a court situated in a different State to which the case has been transferred. It is the prerogative of the State Government to appoint a Public Prosecutor to conduct the case which is pending in the sessions division of that State.‖ (underlining added)
26. With regard to the powers of the Supreme Court in giving direction while transferring cases under Section 406 Cr. P. C, the Supreme Court had this to say:-
―13. Of course, this Court while passing order of transfer, can give an appropriate direction as to which State should appoint the Public Prosecutor to conduct that particular case. Such orders are passed having regard to the circumstances of the case and the grounds on which the transfer has been effected. This Court can certainly give directions irrespective of the provisions contained in Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 23 of 27 Section 24 CrPC. But so far as this case is concerned, nothing had been stated in the order of the transfer. The provisions contained in Section 24 CrPC shall prevail and it is for the appropriate State Government within whose area the trial is conducted to appoint Public Prosecutor under sub-sections (3) to (7) of Section 24 CrPC.
14. Sub-section (8) of Section 24 CrPC is a special provision regarding the appointment of a Special Prosecutor. This power can be exercised by the Central Government and the State Government for the purpose of any case or class of cases, and a person who has been in practice as an advocate for not less than ten years may be appointed as a Special Public Prosecutor. These powers are also to be exercised by the State Government of the transferee court where the sessions case is pending. Of course, the transferee State can appoint any person having qualification prescribed under sub-section (8) of Section 24 CrPC.‖ (underlining added)
27. The Supreme Court considered the object and purpose of transfer of a criminal trial. It held that the goal sought to be achieved was to ensure a fair trial. Public Prosecutors play a vital and key role in the trial. It is the Public Prosecutor who can withdraw from prosecution under Section 321 Cr. P.C and, again, it is the Public Prosecutor who is to file an appeal, though upon the direction of the State, against acquittal under Section 378 Cr. P.C or against a sentence under Section 377 Cr.P.C. In this context, the Supreme Court held:-
―15. The purpose of transfer of the criminal case from one State to another is to ensure fair trial to the accused. In this case, the main ground on which the transfer of the sessions case was ordered from the Sessions Court of Chinglepet in Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 24 of 27 Tamil Nadu to the Principal District and Sessions Judge, Pondicherry, was that the action of the prosecution agency had created a reasonable apprehension in the mind of the appellant-accused that he would not get justice if the trial was held in the State of Tamil Nadu.
16. The Public Prosecutor plays a key role during trial of a sessions case. Though the Sessions Judge has got a supervising control over the entire trial of the case, it is the Public Prosecutor who decides who are the witnesses to be examined on the side of the prosecution and which witness is to be given up, or which witness is to be recalled for further examination. For proper conduct of a criminal case the Public Prosecutor plays a vital role. It may also be noticed herein that under Section 225 CrPC during every trial before the Court of Session, the prosecution shall be conducted by the Public Prosecutor and as regards withdrawal also, the Public Prosecutor in charge of the case has to make the application for withdrawal of prosecution as per Section 321 CrPC. In case of acquittal of the accused the State Government may direct the Public Prosecutor to file an appeal.
17. As is evident from various provisions of CrPC, the State Government of Tamil Nadu can only appoint a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under Section 24 CrPC to conduct the prosecution and appeal, or other proceeding in any criminal courts in respect of any case pending before the courts of Tamil Nadu and in respect of any case pending before the courts at Pondicherry, the State Government of Pondicherry is the appropriate Government to appoint Public Prosecutor, Additional Public Prosecutor or Special Public Prosecutor.
18. However, we make it clear that the State of Pondicherry can appoint any counsel as Public Prosecutor having requisite qualifications as prescribed under sub-section (8) of Section 24 CrPC whether he is a lawyer in the State of Pondicherry or any other State. As it is a criminal case registered by the State of Tamil Nadu the expenses for conducting the trial are to be borne by the State of Tamil Nadu. The advocate's fees payable to the Public Prosecutor, Additional Public Prosecutor or Special Public Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 25 of 27 Prosecutor by the State of Pondicherry shall be borne by the State of Tamil Nadu and the Home Departments of the two States may undertake consultations with each other and an appropriate decision may be taken by the authorities concerned in this regard.‖
28. The legal position is that once a case is transferred by the Supreme Court under Section 406 Cr. P.C from one State to another State, the transferor State no longer retains control over the prosecution to be conducted in a Court situated in the transferee State. While transferring a case under Section 406 Cr. P.C, the Supreme Court can give appropriate directions as to which State should appoint the Public Prosecutor to conduct that particular case. But, if no such directions are given, then it is the transferee State which is to appoint the Public Prosecutor and take overall responsibility for the prosecution of the case. In the present case, we find that no such directions have been given by the Supreme Court while transferring the case from UP to Delhi. Though, subsequently, in the said Writ Petition (Criminal), when the question of removal of Mr Saxena as the Public Prosecutor and appointment of a Special Prosecutor in his place arose, the Supreme Court approved the appointment of Mr K.K. Singh as Special Prosecutor. The name of Mr K. K. Singh was from amongst the panel of the Government of NCT of Delhi and, importantly, the respondents had no objection to his appointment. Mr K. K. Singh was appointed as Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 26 of 27 Special Prosecutor by the Government of NCT of Delhi though his remuneration was payable by the State of UP. But, merely because the remuneration was payable by the State of UP does not mean that the State of UP was the Prosecuting State. In Jayendra Saraswati (supra) also, the Supreme Court directed the fees to be paid by the transferor State (Tamil Nadu) though the Public Prosecutor was to be appointed by the transferee State (Pondicherry).
29. From the aforesaid discussion, it is apparent that the Government of NCT of Delhi is the State Government which can file an appeal under Section 377 (1) Cr.P.C in this case and not the State of U.P. As such, the preliminary objection raised by the respondents is overruled.
BADAR DURREZ AHMED, J P. K. BHASIN, J August 07, 2009 SR Crl. M. A. 13400/2008 in CRL. A 958/2008 Page 27 of 27