Wednesday, 6 July 2016

Whether private counsel can be permitted to conduct trial in session court?

“13. From the scheme of the Code the legislative
intention is manifestly clear that prosecution in a
Sessions Court cannot be conducted by anyone
other than the Public Prosecutor. The legislature
reminds the State that the policy must strictly
conform to fairness in the trial of an accused in a
Sessions Court. A Public Prosecutor is not
expected to show a thirst to reach the case in the
conviction of the accused somehow or the other
irrespective of the true facts involved in the case.
The expected attitude of the Public Prosecutor
while conducting prosecution must be couched in
fairness not only to the court and to the
investigating agencies but to the accused as well.
If an accused is entitled to any legitimate benefit
during trial the Public Prosecutor should not
scuttle/conceal it. On the contrary, it is the duty
of the Public Prosecutor to winch it to the fore
and make it available to the accused. Even if the
defence counsel overlooked it, the Public
Prosecutor has the added responsibility to bring
it to the notice of the court if it comes to his
knowledge. A private counsel, if allowed a free
hand to conduct prosecution would focus on
bringing the case to conviction even if it is not a
fit case to be so convicted. That is the reason why
Parliament applied a bridle on him and subjected
his role strictly to the instructions given by the
Public Prosecutor.
14. It is not merely an overall supervision which
the Public Prosecutor is expected to perform in
such cases when a privately engaged counsel is
permitted to act on his behalf. The role which a
private counsel in such a situation can play is,
perhaps, comparable with that of a junior
advocate conducting the case of his senior in a
court. The private counsel is to act on behalf of
the Public Prosecutor albeit the fact that he is
engaged in the case by a private party. If the role
of the Public Prosecutor is allowed to shrink to a
mere supervisory role the trial would become a
combat between the private party and the
accused which would render the legislative
mandate in Section 225 of the Code a dead
letter.”
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.131 of 2016
(@ Special Leave Petition (Criminal) No. 837 of 2016)
Anant Prakash Sinha @ Anant Sinha …Appellant
Versus
State of Haryana & Anr. …Respondents
Citation:(2016) 6 SCC105
Dipak Misra, J.
Dated:March, 4, 2016


Despite completion of a decade from the date of
solemnisation of the marriage and in spite of two off springs
in the wedlock, neither the time nor the expansion of family
nor the concern for the children could cement the bond or
weld the affinity between the appellant-husband and the
wife, the 2nd respondent herein, as a consequence of which
she was compelled to set the criminal law in motion by
lodging FIR No. 376 dated 23.11.2013 which was registered
for the offences punishable under Section 498A/323/34 of
the Indian Penal Code (IPC) against the husband and the
mother-in-law alleging that the husband was insistent upon
getting mutual divorce and on her resistance, he had
physically assaulted her and deprived her of basic facilities
of life. All these allegations had the foundation in demand of
dowry and non-meeting of the same by the family members
of wife. After due investigation, the prosecuting agency
placed the charge-sheet against the husband alone for the
offences punishable under Section 498A and 323 IPC before
the learned Judicial Magistrate 1st Class, Gurgaon who
eventually vide order dated 04.04.2009 framed charges
against the husband for commission of the said offences.
2. When the matter was pending before the learned
Magistrate, an application dated 31.07.2014 under Section
216 of the Code of Criminal Procedure (CrPC) was filed by
the informant-wife for framing an additional charge under
Section 406 IPC against the husband and mother-in-law,
Renuka Sinha. It was stated in the said application that
there was an express complaint with regard to
misappropriation of the entire stridhan and other articles
and hence, the accused persons had committed breach of
trust, but no charge-sheet was filed in respect of the said
offence. It was contended that in her statement recorded
under Section 161 CrPC, she had categorically stated about
misappropriation of the stridhan by the family members of
her husband. The learned Magistrate took note of the
materials, namely, stridhan list, complaint addressed to
D.C.P. (East), Gurgaon, statements recorded under Section
161 CrPC and letter dated 16.11.2013 from Women Cell,
D.C.P. (East), Gurgaon and came to hold that in view of the
specific allegations regarding misappropriation of her entire
stridhan by the husband and the other statements recorded
during investigation, a prima facie case for criminal breach
of trust was made out and, accordingly, allowed the
application under Section 216 CrPC against the husband
and the mother-in-law. Be it noted, a prayer had been made
to add the charge for the offence under Section 120B IPC
also but the same was not accepted by the learned
Magistrate.
3. The order passed by the learned Magistrate came to be
assailed in Criminal Revision No. 5 of 2015 before the
learned Additional Sessions Judge, Gurgaon and it was
contended in the revision that the mother-in-law was not
charge-sheeted by the police but the trial court had directed
to frame the charge against her and, therefore, the whole
approach was erroneous. It was also urged that there was
no material to make out a prima facie case under Section
406 IPC against the husband. The stand put forth by the
revisionist was combatted by the prosecution as well as by
the informant on the ground that the trial court has power
to add or alter any charge under Section 216 CrPC and,
therefore, no exception could be taken to the order passed
by the learned Magistrate. The revisional court dwelt upon
the law pertaining to alteration and addition of charges and
came to hold that the framing of the charge against
mother-in-law was unsustainable but the framing of
additional charge under Section 406 IPC against the
husband, the appellant herein, could not be faulted. Being
of this view, the revisional court partly allowed the revision
petition by setting aside the order of framing of charge
against the mother-in-law.
4. The defensibility of the aforesaid order was called in
question by the husband by preferring a petition under
Section 482 CrPC in the High Court of Punjab and Haryana
forming the subject matter of CRL.M. No. 24510 of 2015.
The soundness of the order was attacked by placing reliance
on the principles as elucidated in CBI v. Karimullah Osan
Khan1
 and Hasanbhai Valibhai Qureshi v. State of
Gujarat and others2
. As is demonstrable from the
impugned order, the learned single Judge appreciating the
ratio of the aforesaid decisions has opined that the court
can exercise power of addition or modification of charge
under Section 216 CrPC on the basis of material before the
court. The High Court has also observed that the trial court
has spelt out the reasons that have necessitated for addition
of the charge and hence, the impugned order did not
1
(2014) 11 SCC 538
2
(2004) 5 SCC 347 : (2004) 2 RCR (Criminal) 463 Page 6
6
warrant any interference. To buttress the view, the High
Court has drawn support from the authority in Jasvinder
Saini and others v. State (Government of NCT of Delhi)3
.
5. We have heard Mr. Amarendra Sharan, learned senior
counsel appearing for the appellant and Mr. Sanjay Kumar
Visen, learned counsel for the respondent-State.
6. It is submitted by Mr. Sharan, learned senior counsel
for the appellant that the High Court would have been well
within the domain of its jurisdiction in exercise of power
under Section 482 CrPC in setting aside the orders passed
by the courts below, for the Magistrate has no power under
Section 216 CrPC to alter or modify the charge on the basis
of an application filed by the informant. It is his further
submission that the trial court could have altered the
charge if some evidence had come on record but not on the
basis of the material that was already on record.
Additionally, it is urged by Mr. Sharan that materials on
record do not remotely attract any of the ingredients of the
offence under Section 406 CrPC and, therefore, addition of
charge in respect of the said offence is wholly unsound and
3
(2013) 7 SCC 256Page 7
7
faulty. It has also been argued by Mr. Sharan that the
charges could not have been added on the basis of an
application filed by the informant, for such an application
as required in law is to be filed only by the Public
Prosecutor. In support of the aforesaid submissions, he has
drawn inspiration from the authorities in Harihar
Chakravarty v. State of West Bengal4
, Hasanbhai
Valibhai Qureshi (supra), Jasvinder Saini and others
(supra), Umesh Kumar v. State of Andhra Pradesh and
another5
, Karimullah Osan Khan (supra) and orders
passed by the High Court of Punjab and Haryana in
Poonam and anr. V. State of Punjab6
 and Anant Sinha
v. State of Haryana and ors.
7
.
7. Mr. Visen, learned counsel for the respondent-State,
has supported the order passed by the High Court and
submitted that there is no prohibition under Section 216
CrPC to alter or add a charge prior to the recording of
evidence if the court is moved for the said purpose and it is
satisfied that charge framed by it deserves to be altered or
4 AIR 1954 SC 266
5
(2013) 10 SCC 591
6 CRR 657 of 2015 [High Court of Punjab and Haryana]
7 Criminal Misc. No. M-1044 of 2014 (O&M) Order dated 07.03.2014Page 8
8
an additional charge is required to be added. According to
him, the order passed by the High Court being totally
correct and impenetrable, there is no reason to interfere
with the same in exercise of jurisdiction under Article 136 of
the Constitution of India. Learned counsel would further
contend that when the Magistrate has jurisdiction to rectify
the mistake by adding or altering the charge, he can hear
the counsel for the parties and do it suo motu and an
application either filed by the Public Prosecutor or by the
informant is only to bring the said facts to his notice and in
any case, that would not invalidate the order.
8. The controversy as raised rests on two aspects. The
first aspect that has emanated for consideration is whether
without evidence being adduced another charge could be
added. In this context, we may usefully refer to Section 216
CrPC which reads as follows:-
“216. Court may alter charge.—
(1) Any court may alter or add to any charge at
any time before judgment is pronounced.
(2) Every such alteration or addition shall be
read and explained to the accused.
(3) If the alteration or addition to a charge is
such that proceeding immediately with the trial is
not likely, in the opinion of the court, to prejudicePage 9
9
the accused in his defence or the prosecutor in
the conduct of the case, the court may, in its
discretion, after such alteration or addition has
been made, proceed with the trial as if the altered
or added charge had been the original charge.
(4) If the alteration or addition is such that
proceeding immediately with the trial is likely, in
the opinion of the court, to prejudice the accused
or the prosecutor as aforesaid, the court may
either direct a new trial or adjourn the trial for
such period as may be necessary.
(5) If the offence stated in the altered or added
charge is one for the prosecution of which
previous sanction is necessary, the case shall not
be proceeded with until such sanction is
obtained, unless sanction has been already
obtained for a prosecution on the same facts as
those on which the altered or added charge is
founded.”
9. The aforesaid provision has been interpreted in
Hasanbhai Valibhai Qureshi (supra) wherein the Court
has observed:-
“Section 228 of the Code in Chapter XVII and
Section 240 in Chapter XIX deal with framing of
the charge during trial before a Court of Session
and trial of warrant cases by Magistrates
respectively. There is a scope of alteration of the
charge during trial on the basis of materials
brought on record. Section 216 of the Code
appearing in Chapter XVII clearly stipulates that
any court may alter or add to any charge at any
time before judgment is pronounced. Whenever
such alteration or addition is made, the same is
to be read out and informed to the accused.”Page 10
10
10. In the said case, reference was made to Kantilal
Chandulal Mehta v. State of Maharashtra8
 wherein it
has been ruled that Code gives ample power to the courts to
alter or amend a charge provided that the accused has not
to face a charge for a new offence or is not prejudiced either
by keeping him in the dark about the charge or in not giving
him full opportunity of meeting it and putting forward any
defence open to him on the charge finally preferred against
him. Placing reliance on the said decision, it has been
opined that if during trial the trial court on a consideration
of broad probabilities of the case based upon total effect of
the evidence and documents produced is satisfied that any
addition or alteration of the charge is necessary, it is free to
do so, and there can be no legal bar to appropriately act as
the exigencies of the case warrant or necessitate.
11. In Jasvinder Saini and others (supra), the chargesheet
was filed before the jurisdictional Magistrate alleging
commission of offences under Sections 498-A, 304-B, 406
and 34 IPC against the appellant Nos. 1 to 4 therein. A
supplementary charge-sheet was filed in which the
8
(1969) 3 SCC 166Page 11
11
appellant Nos. 5 to 8 therein were implicated for the case to
which Section 302 IPC was also added by the investigating
officer. After the matter was committed to the Court of
Session, the trial court came to the conclusion that there
was no evidence or material on record to justify framing of a
charge under Section 302 IPC, as a result of which charges
were framed only under Sections 498-A, 304-B read with
Section 34 IPC. When the trial court was proceeding with
the matter, this Court delivered the judgment in Rajbir
alias Raju and anr. v. State of Haryana9
 and directed
that all the trial courts in India to ordinarily add Section
302 to the charge on Section 304-B IPC so that death
sentences could be imposed in heinous and barbaric crimes
against women. The trial court noted the direction in
Rajbir (supra) and being duty-bound, added the charge
under Section 302 IPC to the one already framed against the
appellant therein and further for doing so, it placed reliance
on Section 216 CrPC. The said order was assailed before
the High Court which opined that the appearance of
evidence at the trial was not essential for framing of an
9
(2010) 15 SCC 116Page 12
12
additional charge or altering a charge already framed,
though it may be one of the grounds to do so. That apart,
the High Court referred to the autopsy surgeon which,
according to the High Court, provided prima facie evidence
for framing the charge under Section 302 IPC. Being of this
view, it declined to interfere with the order impugned. This
Court adverting to the facts held thus:-
“It is common ground that a charge under
Section 304-B IPC is not a substitute for a charge
of murder punishable under Section 302. As in
the case of murder in every case under Section
304-B also there is a death involved. The
question whether it is murder punishable under
Section 302 IPC or a dowry death punishable
under Section 304-B IPC depends upon the fact
situation and the evidence in the case. If there is
evidence whether direct or circumstantial to
prima facie support a charge under Section 302
IPC the trial court can and indeed ought to frame
a charge of murder punishable under Section
302 IPC, which would then be the main charge
and not an alternative charge as is erroneously
assumed in some quarters. If the main charge of
murder is not proved against the accused at the
trial, the court can look into the evidence to
determine whether the alternative charge of
dowry death punishable under Section 304-B is
established. The ingredients constituting the two
offences are different, thereby demanding
appreciation of evidence from the perspective
relevant to such ingredients. The trial court in
that view of the matter acted mechanically for it
framed an additional charge under Section 302Page 13
13
IPC without adverting to the evidence adduced in
the case and simply on the basis of the direction
issued in Rajbir case. The High Court no doubt
made a half-hearted attempt to justify the
framing of the charge independent of the
directions in Rajbir case (supra), but it would
have been more appropriate to remit the matter
back to the trial court for fresh orders rather
than lending support to it in the manner done by
the High Court.”
12. It is appropriate to note here, the Court further
observed that the annulment of the order passed by the
court would not prevent the trial court from re-examining
the question of framing a charge under Section 302 IPC
against the appellant therein and passing an appropriate
order if upon a prima facie appraisal of the evidence
adduced before it, the trial court comes to the conclusion
that there is any room for doing so. In that context,
reference was made to Hasanbhai Valibhai Qureshi
(supra).
13. In Karimullah Osan Khan (supra), the Court was
concerned with the legality of the order passed by the
Designated Court under the Terrorist and Disruptive
Activities (Prevention) Act, 1987 for Bomb Blast Case,Page 14
14
Greater Bombay rejecting the application filed by the
Central Bureau of Investigation (for short “CBI”) under
Section 216 CrPC for addition of the charges punishable
under Section 302 and other charges under the IPC and the
Explosives Act read with Section 120-B IPC and also under
Section 3(2) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987. The Designated Court framed
charges in respect of certain offences and when the CBI filed
an application for addition of the charge under Section 302
IPC and other offences, the Designated Court rejected the
application as has been indicated earlier. In the said
context, the Court proceeded to interpret the scope of
Section 216 CrPC. Reference was made to the decisions in
Jasvinder Saini (supra) and Thakur Shah v. King
Emperor10. Proceeding further, it has been ruled thus:-
“17. Section 216 CrPC gives considerable power
to the trial court, that is, even after the
completion of evidence, arguments heard and the
judgment reserved, it can alter and add to any
charge, subject to the conditions mentioned
therein. The expressions “at any time” and before
the “judgment is pronounced” would indicate that
the power is very wide and can be exercised, in
appropriate cases, in the interest of justice, but
10 (1942-43) 70 IA 196 : (1943) 56 LW 706 : AIR 1943 PC 192Page 15
15
at the same time, the courts should also see that
its orders would not cause any prejudice to the
accused.
18. Section 216 CrPC confers jurisdiction on all
courts, including the Designated Courts, to alter
or add to any charge framed earlier, at any time
before the judgment is pronounced and
sub-sections (2) to (5) prescribe the procedure
which has to be followed after that addition or
alteration. Needless to say, the courts can
exercise the power of addition or modification of
charges under Section 216 CrPC, only when
there exists some material before the court,
which has some connection or link with the
charges sought to be amended, added or
modified. In other words, alteration or addition of
a charge must be for an offence made out by the
evidence recorded during the course of trial
before the court. (See Harihar Chakravarty v.
State of W.B. (supra) Merely because the charges
are altered after conclusion of the trial, that itself
will not lead to the conclusion that it has resulted
in prejudice to the accused because sufficient
safeguards have been built in Section 216 CrPC
and other related provisions.”
14. At this juncture, we have to appropriately recapitulate
the principles stated in Harihar Chakravarty (supra). In
the said case, a complaint was filed charging the appellant
and another for the offences punishable under Sections
409, 406, 477 and 114 of the IPC. The complainant and his
witnesses were examined and on the basis of said evidence,
the learned Magistrate had framed a charge under SectionPage 16
16
409 IPC against the appellant. The appellant entered upon
his defence and after the trial, the Magistrate acquitted the
appellant and the other accused under Section 409 IPC.
The complainant filed a criminal revision before the High
Court which set aside the order of acquittal and remanded
the matter to the Magistrate for decision for amendment of
the charge by examining appropriate evidence. The said
order was the subject matter of assail before this Court.
This Court, addressing to the merits of the case opined
thus:-
“8. This was a private prosecution in which the
complainant came forward with a story that the
never ordered the appellant to purchase these
shares and that therefore the shares did not
belong to him, and he had no interest in them or
title to them. In fact his case was that the shares
were never purchased by the appellant under his
instructions. All that was found to be false and it
was found that he did order them to be
purchased and that therefore the shares were
his. The order which was made by the learned
Judge in effect meant that the complainant
should abandon his original story to lay claim to
the shares and prosecute the Appellant for
another and distinct offence which could only
arise on a different set of facts coming into
existence after the purchase of the shares. The
appellant might or might not be guilty of this
other offence, but he is certainly innocent of the
offence with which he was charged and for whichPage 17
17
he was fully tried and therefore he is entitled to
an acquittal and the learned Judge had no power
to set aside that order so long as he agreed, as he
did, that the appellant was not guilty of the
offence with which he was charged. Once a
charge is framed and the accused is found not
guilty of that charge an acquittal must be
recorded under Section 258(1) of the Criminal
Procedure Code. There is no option in the matter
and we are of the opinion therefore that the order
setting aside the acquittal was in any event bad.
9. Next as regards the direction to alter the
charge so as to include an offence for which the
appellant was not originally charged, that could
only be done if the trial court itself had taken
action under Section 227 of the Criminal
Procedure Code before it pronounced judgment.
It could only have done so if there were materials
before it either in the complaint or in the
evidence to justify such action.
10. The complaint affords no material for any
such case because it is based on the allegation
that the shares did not belong to the complainant
and that in fact they were never purchased. The
learned Judge observed that the contention was
that the shares belonged to the complainant and
were dishonestly pledged by the appellant with
the Nath Bank. We do not find even a word about
this either in the complaint or in the examination
of the complainant.”
[emphasis is added]
15. After so stating, the Court opined that there was no
material on which the trial court could have amended the
charge under Section 227 CrPC and the learned JudgePage 18
18
therefore had no power to direct an amendment and a
continuation of the same trial as he purported to do. The
purpose of laying stress on the said authority is that the
trial court could issue a direction for alteration of the
charge if there were materials before it in the complaint or
any evidence to justify such action. On the aforesaid
three-Judge Bench decision, it is quite vivid that if there are
allegations in the complaint petition or for that matter in
FIR or accompanying material, the court can alter the
charge. In Thakur Shah v. King Emperor (supra), what
the Court has held is that alteration or addition of a charge
must be for an offence made out by the evidence recorded
during the course of trial before the court. It does not
necessarily mean that the alteration can be done only in a
case where evidence is adduced. We may hasten to clarify
that there has been a reference to the decision rendered in
Harihar Chakravarty (supra) but the said reference has to
be understood in the context. Section 216 CrPC, as is
evincible, does not lay down that the court cannot alter the
charge solely because it has framed the charge. In
Hasanbhai Valibhai Qureshi (supra), it has been statedPage 19
19
there is scope for alteration of the charge during trial on the
basis of material brought on record. In Jasvinder Saini
and others (supra), it has been held that circumstances in
which addition or alteration of charge can be made have
been stipulated in Section 216 CrPC and sub-sections (2) to
(5) of Section 216 CrPC deal with the procedure to be
followed once the court decides to alter or add any charge.
It has been laid down therein that the question of any such
addition or alteration generally arise either because the
court finds the charge already framed to be defective for any
reason or because such addition is considered necessary
after the commencement of the trial having regard to the
evidence that may come before the court. If the said
decision is appositely understood, it clear lays down the
principle which is in consonance with Harihar
Chakravarty (supra).
16. From the aforesaid, it is graphic that the court can
change or alter the charge if there is defect or something is
left out. The test is, it must be founded on the material
available on record. It can be on the basis of the complaintPage 20
20
or the FIR or accompanying documents or the material
brought on record during the course of trial. It can also be
done at any time before pronouncement of judgment. It is
not necessary to advert to each and every circumstance.
Suffice it to say, if the court has not framed a charge
despite the material on record, it has the jurisdiction to add
a charge. Similarly, it has the authority to alter the charge.
The principle that has to be kept in mind is that the charge
so framed by the Magistrate is in accord with the materials
produced before him or if subsequent evidence comes on
record. It is not to be understood that unless evidence has
been let in, charges already framed cannot be altered, for
that is not the purport of Section 216 CrPC.
17. In addition to what we have stated hereinabove,
another aspect also has to be kept in mind. It is obligatory
on the part of the court to see that no prejudice is caused to
the accused and he is allowed to have a fair trial. There are
in-built safeguards in Section 216 CrPC. It is the duty of
the trial court to bear in mind that no prejudice is caused to
the accused as that has the potentiality to affect a fair trial.Page 21
21
It has been held in Amar Singh v. State of Haryana11
that the accused must always be made aware of the case
against them so as to enable him to understand the defence
that he can lead. An accused can be convicted for an offence
which is minor than the one he has been charged with,
unless the accused satisfies the court that there has been a
failure of justice by the non-framing of a charge under a
particular penal provision, and some prejudice has been
caused to the accused. While so stating, we may reproduce
the following two passages from Bhimanna v. State of
Karnataka12:-
“25. Further, the defect must be so serious that it
cannot be covered under Sections 464/465 CrPC,
which provide that, an order of sentence or
conviction shall not be deemed to be invalid only
on the ground that no charge was framed, or that
there was some irregularity or omission or
misjoinder of charges, unless the court comes to
the conclusion that there was also, as a
consequence, a failure of justice. In determining
whether any error, omission or irregularity in
framing the charges has led to a failure of justice,
this Court must have regard to whether an
objection could have been raised at an earlier
stage during the proceedings or not. While
judging the question of prejudice or guilt, the
court must bear in mind that every accused has
11 (1974) 3 SCC 81
12 (2012) 9 SCC 650Page 22
22
a right to a fair trial, where he is aware of what
he is being tried for and where the facts sought to
be established against him, are explained to him
fairly and clearly, and further, where he is given a
full and fair chance to defend himself against the
said charge(s).
26. This Court in Sanichar Sahni v. State of
Bihar13, while considering the issue placed
reliance upon various judgments of this Court
particularly on Topandas v. State of Bombay14
,
Willie (William) Slaney v. State of M.P.15
,
Fakhruddin v. State of M.P.16
, State of A.P. v.
Thakkidiram Reddy17
, Ramji Singh v. State of
Bihar18 and Gurpreet Singh v. State of Punjab19
and came to the following conclusion: (Sanichar
Sahni case (supra), SCC p. 204, para 27)
“27. Therefore … unless the convict is able
to establish that defect in framing the
charges has caused real prejudice to him
and that he was not informed as to what
was the real case against him and that he
could not defend himself properly, no
interference is required on mere
technicalities. Conviction order in fact is to
be tested on the touchstone of prejudice
theory.”
A similar view has been reiterated in Abdul
Sayeed v. State of M.P.20

13 (2009) 7 SCC 198
14 AIR 1956 SC 33
15 AIR 1956 SC 116
16 AIR 1967 SC 1326
17 (1998) 6 SCC 554
18 (2001) 9 SCC 528
19 (2005) 12 SCC 615
20 (2010) 10 SCC 259 Page 23
23
18. We have reproduced the aforesaid passages by
abundant caution so that while adding or altering a charge
under Section 216 CrPC, the trial court must keep both the
aforestated principles in view. The test of prejudice, as has
been stated in the aforesaid judgment, has to be borne in
mind.
19. Presently to the second aspect. Submission of Mr.
Sharan is that the learned Magistrate could not have
entertained the application preferred by the informant, for
such an application is incompetent because it has to be filed
by the public prosecutor. In this regard, he has laid stress
on the decision in Shiv Kumar v. Hukam Chand and
another21
. In the said case, the grievance of the appellant
was that counsel engaged by him was not allowed by the
High Court to conduct the prosecution in spite of obtaining
a consent from the concerned Public Prosecutor. The trial
court had passed an order to the extent that the advocate
engaged by the informant shall conduct the case under the
supervision, guidance and control of the Public Prosecutor.
He had further directed that the Public Prosecutor shall
21 (1999) 7 SCC 467
retain with himself the control over the proceedings. The
said order was challenged before the High Court and the
learned single Judge allowing the revision had directed that
the lawyer appointed by the complainant or private person
shall act under the directions from the Public Prosecutor
and may with the permission of the court submit written
arguments after evidence is closed and the Public
Prosecutor in-charge of the case shall conduct the
prosecution. This Court referred to Sections 301, 302(2),
225 CrPC and various other provisions and came to hold as
follows:-
“13. From the scheme of the Code the legislative
intention is manifestly clear that prosecution in a
Sessions Court cannot be conducted by anyone
other than the Public Prosecutor. The legislature
reminds the State that the policy must strictly
conform to fairness in the trial of an accused in a
Sessions Court. A Public Prosecutor is not
expected to show a thirst to reach the case in the
conviction of the accused somehow or the other
irrespective of the true facts involved in the case.
The expected attitude of the Public Prosecutor
while conducting prosecution must be couched in
fairness not only to the court and to the
investigating agencies but to the accused as well.
If an accused is entitled to any legitimate benefit
during trial the Public Prosecutor should not
scuttle/conceal it. On the contrary, it is the duty
of the Public Prosecutor to winch it to the fore
and make it available to the accused. Even if the
defence counsel overlooked it, the Public
Prosecutor has the added responsibility to bring
it to the notice of the court if it comes to his
knowledge. A private counsel, if allowed a free
hand to conduct prosecution would focus on
bringing the case to conviction even if it is not a
fit case to be so convicted. That is the reason why
Parliament applied a bridle on him and subjected
his role strictly to the instructions given by the
Public Prosecutor.
14. It is not merely an overall supervision which
the Public Prosecutor is expected to perform in
such cases when a privately engaged counsel is
permitted to act on his behalf. The role which a
private counsel in such a situation can play is,
perhaps, comparable with that of a junior
advocate conducting the case of his senior in a
court. The private counsel is to act on behalf of
the Public Prosecutor albeit the fact that he is
engaged in the case by a private party. If the role
of the Public Prosecutor is allowed to shrink to a
mere supervisory role the trial would become a
combat between the private party and the
accused which would render the legislative
mandate in Section 225 of the Code a dead
letter.”
20. Being of this view, this Court upheld the order passed
by the High Court. The said decision is, in our opinion, is
distinguishable on facts. The instant case does not pertain
to trial or any area by which a private lawyer takes control
of the proceedings. As is evident, an application was filed
by the informant to add a charge under Section 406 IPC as
there were allegations against the husband about the
criminal breach of trust as far as her stridhan is concerned.
It was, in a way, bringing to the notice of the learned
Magistrate about the defect in framing of the charge. The
court could have done it suo motu. In such a situation, we
do not find any fault on the part of learned Magistrate in
entertaining the said application. It may be stated that the
learned Magistrate has referred to the materials and
recorded his prima facie satisfaction. There is no error in
the said prima facie view. We also do not perceive any
error in the revisional order by which it has set aside the
charge framed against the mother-in-law. Accordingly, we
affirm the order of the High Court in expressing its
disinclination to interfere with the order passed in revision.
We may clarify that the entire scrutiny is only for the
purpose of framing of charge and nothing else. The learned
Magistrate will proceed with the trial and decide the matter
as per the evidence brought on record and shall not be
influenced by any observations made as the same have to be
restricted for the purpose of testing the legal defensibility of
the impugned order.
21. Consequently, the appeal, being devoid of merit,
stands dismissed.
 .................................J.
 [Dipak Misra]
.................................J.
 [Shiva Kirti Singh]
NEW DELHI
March, 4, 2016
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