At this stage, it also needs to be clarified that though the
application was filed by the respondent invoking both the provisions as
contained in Sections 301 and 302 Cr.P.C. and even the learned
Magistrate considered and allowed the same vide his order dated
4.8.2012. However, the permission so granted by the learned
Magistrate has essentially to be read and considered in light of the
prayer contained in the application.
19. Once the respondent had specifically sought permission
that his counsel be permitted to assist the prosecution, he cannot turn
around to contend that such permission included a right to conduct the
trial. Therefore, the petitioner at this stage has every right to object
against the filing of the application directly by the counsel engaged by
the respondent, instead of the same having been filed by the Public
Prosecutor.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. MMO No. 256 of 2015
Date of decision : November 4th , 2016.
Sateesh Chander Kuthiala .
V
State of Himachal Pradesh and another
Coram
Mr. Justice Tarlok Singh Chauhan, Judge.
Citation: 2017 CRLJ 97
The moot question that falls for consideration in this
petition under Section 482 Cr.P.C. is as to whether the complainant
can conduct the trial when admittedly he has only sought and granted
permission by the learned trial Court to assist and not conduct the trial.
2. This petition arises out of the order passed by learned
Chief Judicial Magistrate, Shimla, H.P. in Cr.M.A. No. 6-4 of 2015 on
21.7.2015 whereby the application filed by the complainant/respondent
under Sections 294 and 311 of the Code of Criminal Procedure, 1973,
through his counsel, seeking permission to tender in evidence certified
copies of the judgment passed by learned Sub Judge (II), Shimla in
Case No. 62/I of 1985 titled Shri Radha Krishan Kuthiala versus Shri
Gian Chand Kuthiala and copy of judgments dated 31.3.1998 passed
by learned Additional District Judge, Shimla passed in Civil Appeal
No.105/S/13 of 88/86 in case titled Shri Hari Krishan and others versus
Shri Radha Krishan and others, came to be allowed.
3. Mr. K.D. Sood, Senior Advocate, assisted by Mr. Dushyant
Dadwal, Advocate, would vehemently contend that even if permission
had been granted by the learned trial Magistrate to the respondent to
assist the Public Prosecutor in the trial, it did not in any manner
authorise the complainant/respondent to directly file the application in
question, through his counsel, that too, without even associating the
Public Prosecutor as this would not be assisting but would amount to
conducting the trial itself.
4. On the other hand, Mr. Gautam Sood, learned counsel for
the complainant/respondent would strenuously argue that once the
permission has been granted to the complainant under Sections 301
and 302 Cr.P.C., then the complainant was not only entitle to assist the
Public Prosecutor, but he could even conduct the trial independently.
5. Both the parties have placed reliance on the latest
judgment of the Hon’ble Supreme Court in Dhariwal Industries Ltd.
vs. Kishore Wadhwani and others AIR 2016 SC 4369 to contend
that the point in issue is squarely answered in their favour.
I have heard learned counsel for the parties and gone
through the material placed on record carefully.
6. It would be noticed that prior to 31.12.2009 the concept of
“victim” was virtually alien to the Code of Criminal Procedure. However,
the Code of Criminal Procedure (Amendment) Act, 2008, brought
about widespread amendments not only by introducing the definition of
victim as Section 2 (wa) w.e.f. 31.12.2009, but various other provisions
were also included in the Code for benefit of the victim. Thereby
recognizing the importance and relevance of a “victim” in not only the
process of investigation, enquiry, trial, but even in matters relating to
appeal, revision etc.
7. The statement of objects and reasons for introducing the
amendment inter alia mentions that “At present, the victims are the
worst sufferers in a crime and they don’t have much role in the Court
proceedings. They need to be given certain rights and compensation,
so that there is no distortion of the criminal justice system.”
8. The definition of “victim” as found in Section 2(wa) reads
as under:
“Section 2 (wa) “victim” means a person who has suffered any
loss or injury caused by reason of the act or omission for which
the accused person has been charged and the expression
“victim” includes his or her guardian or legal heir.”
9. The new clause introduces a definition of “victim” to confer
certain rights on the guardians and legal heirs of the victim like to
engage an Advocate under Section 24 (8), right to file an appeal under
proviso to Section 372, to claim compensation under new Section
357-A.
10. The Scheme behind the insertion of this new definition of
“victim” is also apparent from the insertion of a proviso to Section 24
(8) of Cr.P.C., so as to enable a victim, or those who are covered by
this definition, to engage an advocate of his/their choice to assist the
prosecution. Since the entire criminal justice machinery is set into
motion on the asking of or due to the sufferings of the victim, the law
makers have deemed it fit to enable the victim to actively participate in
the judicial process. There can be no manner of doubt that right from
the occurrence of the incident till the ultimate decision by the highest
Court of law, the “victim” is as much interested in the decision as is the
accused or the State. In fact, the “victim” on account of his being the
sufferer/injured, has to be recognized as the most aggrieved party in a
crime.
11. The rights of a “victim”, who can be said to be a “victim”,
whether the same would include the complainant, what are his rights
etc. have been subject matter of a Full Bench of the Punjab and
Haryana High Court in M/s Tata Steel Ltd vs. M/s Atma Tube
Products Ltd. and others, 2014 (173) Pun.LR 1 and it shall be
worthwhile to extract some portions of the judgment, which reads thus:
“(7). The universalist views on criminal justice system emphasize
on the norms collectively recognized and accepted by all of humanity.
The internationally accepted norms whereunder an individual's
criminal act(s) is accountable are universally binding and applicable
across national borders on the premise that crimes committed are not
just against individual victims but also against mankind as a whole.
The crime against an individual thus transcends and is taken as an
assault on humanity itself. It is the concept of the humanity at large
as a victim which has essentially characterized 'crimes' on
universally- accepted principles. The acceptability of this principle
was the genesis of Criminal Justice System with State dominance
and jurisdiction to investigate and adjudicate the 'crime'. For long, the
criminal law had been viewed on a dimensional plane wherein the
Courts were required to adjudicate between the accused and the
State. The 'victim' - the de facto sufferer of a crime had no
participation in the adjudicatory process and was made to sit outside
the Court as a mute spectator. The ethos of criminal justice
dispensation to prevent and punish 'crime' would surreptitiously turn
its back on the 'victim' of such crime whose cries went unnoticed for
centuries in the long corridors of the conventional apparatus. Various
international Declarations, domestic legislations and Courts across
the world recognized the 'victim' and they voiced together for his right
of representation, compensation and assistance. The UN Declaration
of Basic Principles of Justice for the Victims of Crime and Abuse of
Power, 1985, which was ratified by a substantial number of countries
including India, was a landmark in boosting the pro-victim movement.
The Declaration defined a 'victim' as someone who has suffered
harm, physical or mental injury, emotional suffering, economic loss,
impairment of fundamental rights through acts or omissions that are
in violation of criminal laws operative within a State, regardless of
whether the perpetrator is identified, apprehended, prosecuted or
convicted and regardless of the familial relationship between the
perpetrator and the 'victim'.
(8). European Union (EU) also took great strides in granting and
protecting the rights of 'victims' through various Covenants including
the following:-
i. The position of a victim in the framework of Criminal Law and
Procedure, Council of Europe Committee of Ministers to Member
States, 1985;
ii. Strengthening victim's right in the EU communication from the
Commission to the European Parliament, the Council, the Economic
and Social Committee and the Committee of the Reasons, European
Union, 2011;
iii. Proposal for a Directive of the European Parliament and of the
Council establishing "Minimum Standards on the Rights, Support and
Protection of Victims of Crime, European Union, 2011".
(9). The United States of America (USA) had earlier made two
enactments on the subject i.e. (i) The Victims of Crime Act, 1984
under which legal assistance is granted to the crime-victims; and (ii)
The Victims' Rights and Restitution Act of 1990, followed by
meaningful amendments, repeal and insertion of new provisions in
both the Statutes through an Act passed by the House of
Representatives as well as the Senate on April 22, 2004.
(10). In Australia, the Legislature has enacted South Australia
Victims of Crime Act, 2001 while in Canada there are two legislations
known as Victims of Crime Act, Prince Edward Island and Victims of
Crime Act, British Columbia. Most of these legislations have defined
the 'victim' of a crime liberally and have conferred varied rights on
such victims.
Indian Perspective:
(11). Much before the United Nations stepped into or the other
developed nations legislated for the protection and promotion of
victims' rights, the Supreme Court in Rattan Singh vs. State of
Punjab, (1979) 4 SCC 719, lamented against complete desertion of a
victim in our criminal jurisprudence observing that "The victimization
of the family of the convict may well be a reality and is regrettable. It
is a weakness of our jurisprudence that the victims of the crime, and
the distress of the dependants of the prisoner, do not attract the
attention of the law. Indeed, victim reparation is still the vanishing
point of our criminal law. This is a deficiency in the system which
must be rectified by the Legislature. We can only draw attention to
this matter. Hopefully, the Welfare State will bestow better thought
and action to traffic justice in the light of the observations we have
made".
(12). The Legislature though did not come forward to address the
issue but the Law Commission of India, nonetheless, in its 154th
Report attributed Chapter-XV on "Victimology" made radical
recommendations on the aspect of compensatory justice through a
Victim Compensation Scheme. Thereafter came the report of a
Committee on the Reforms of Criminal Justice System, commonly
known as "Malimath Committee Report, 2003". The Committee was
constituted by Government of India with an avowed object of
suggesting ways and means for developing a cohesive system in
which all the parts work in coordination to achieve the common goal
as the people by and large have lost confidence in the criminal justice
system and the bewildered victim is crying for attention and justice.
The Committee recommended the right of the victim or his legal
representative 'to be impleaded as a party in every criminal
proceeding where the charge is punishable with seven years
imprisonment or more'; the right of voluntary organizations for
impleadment in court proceedings in select cases; the victim's right to
be represented by an advocate of his choice and if he is not in a
position to afford, to provide an advocate at the State's expenses;
victim's right to participate in criminal trial; the right to know the status
of investigation and take necessary steps in this regard and to be
heard at crucial stages of the criminal trial including at the time of
grant or cancellation of bail. The Committee further recommended
that "the victim shall have a right to prefer an appeal against any
adverse order...; he should be provided legal services and that 'victim
compensation' is a State obligation in all serious crimes, whether the
offender is apprehended or not, convicted or acquitted" and for this
object a separate legislation be enacted.
(13). Soon after the Malimath Committee report came the verdict in
Jahira Habibullah H. Sheikh & Anr. vs. State of Gujarat & Ors.,
(2004) 4 SCC 158, ripping apart the ailing criminal justice system in
India and ordering re-trial of Best Bakery Case and desirability of
further investigation in terms of Section 173(8) CrPC due to the
factors like dishonest and faulty investigation, holding of trial in a
perfunctory manner, non-production of vital witnesses, prosecuting
agency acting unfairly and forcing eye-witnesses to turn hostile,
resulting into the acquittal of several accused suspected to be
involved in the gruesome murder of as many as 14 people as a result
of communal frenzy.
(14). Before we proceed further, let there be a special reference to
those decisions of the Hon'ble Supreme Court which built up the
victim's right brick by brick, revolutionalised the conventional criminal
justice system and sensitized its stakeholders, notwithstanding the
fact that statutory initiatives through the desired amendments in the
Code of Criminal Procedure, 1973 (in short, 'the Code') were still
illusory.
(15). In PSR Sadhanantham vs. Arunachalam & Anr., (1980) 3
SCC 141, the Constitution Bench considered the question whether
the brother of a victim who had been murdered, possessed the right
to petition under Article 136 of the Constitution for special leave to
appeal against the acquittal of the accused? After noticing that under
the Code, the right of appeal vested in the State is subject to leave to
be granted by the High Court and a complainant's right to appeal was
also subject to his obtaining 'special leave' to appeal from the High
Court, it was held that a petition filed by the private party other than
the complainant should be entertained "in those cases only where it
is convinced that the public interest justifies an appeal against the
acquittal and that the State has refrained from petitioning from
special leave for reasons which do not bear on the public interest but
are prompted by private influence, want of bona fide and other
extraneous considerations".
(16). In Bhagwant Singh vs. Commissioner of Police, (1985) 2 SCC 537,
the right of the complainant to be heard before the acceptance of a
cancellation report submitted by the police after investigation of the
FIR, was accepted laying down that the informant must be given an
opportunity of hearing so that he could make his submissions to
persuade the Magistrate to take cognizance of the offence and issue
due process.
(17). In M/s JK International vs. State Government of NCT of Delhi, (2001)
3 SCC 462, the Supreme Court recognized the right of the
complainant at whose instance the police-case was registered, to be
heard by the High Court in the proceedings initiated by the accused
for quashing those proceedings. It held thus:-
"9. The scheme envisaged in the Code of Criminal procedure
(for short the Code) indicates that a person who is aggrieved
by the offence committed, is not altogether wiped out from the
scenario of the trial merely because the investigation was
taken over by the police and the charge sheet was laid by
them. Even the fact that the court had taken cognizance of
the offence is not sufficient to debar him from reaching the
court for ventilating his grievance. Even in the sessions court,
where the Public Prosecutor is the only authority empowered
to conduct the prosecution as per Section 225 of the Code, a
private person who is aggrieved by the offence involved in the
case is not altogether debarred from participating in the
trial..."
(18). In Puran Shekhar and Anr. vs. Rambilas & Anr., (2001) 6
SCC 338, the locus standi of father of the deceased in a dowry death
case, to move the High Court and seek cancellation of bail granted
by the Sessions Court was upheld as he was not a stranger.
(19). In Delhi Domestic Working Women's Forum vs. Union of India
& Ors, (1995) 1 SCC 14, the Supreme Court in exercise of its PIL
jurisdiction directed the National Commission for Women to evolve a
Scheme to protect rape victims through various measures and cast
obligation on the Union of India to implement the Scheme so evolved
by the Commission.
(20). Rama Kant Rai vs. Madan Rai & Ors., (2003) 12 SCC 395
was a case where against an order of acquittal passed by the High
Court in a murder case, the right of the private party to file an appeal
under Article 136 of the Constitution was eloquently recognized
especially to meet the pressing demands of justice.
(21). In Sakshi vs. Union of India & Ors, (2004) 5 SCC 518,
mandatory guidelines for the recording of evidence of victim of
offence under Sections 354, 375, 367 & 377 IPC were laid down.
(22). In Mosiruddin Munshi vs. Mohammad Siraj & Ors., (2008) 8
SCC 434, the right of the complainant to be heard before an order
affecting the criminal proceedings initiated at his instance was
recognized and it was held that the FIR could not be quashed by the
High Court at the instance of the accused without notice to the
original complainant.
(23). Some of the High Courts also dutifully espoused the cause of
'victims' and expanded the jurisprudence to create a space for them
at one or the other stage of Court hearings. We may usefully quote
the following observations made by a Division Bench of Assam High
Court in NC Bose vs. Prabodh Dutta Gupta, AIR 1955 (Assam) 116:-
"[I]t seems to me that the person vitally interested in the issue
of the prosecution or the trial is the person aggrieved who
'initiates' the proceedings. He may be both civilly and
criminally liable if, on account of any unfairness or partiality,
the trial or the proceeding ends in wrongful acquittal or
discharge of the accused. The Legislature therefore could not
have intended to shut out such a person from coming to the
High Court and claiming redress under Section 526 of the
Code. The words should be construed to have the widest
amplitude so long as the effect of the interpretation is not to
open the door to frivolous applications at the instance of
intermeddlers or officious persons having no direct interest in
the prosecution or trial".
Evolution of Right to Appeal:
(24). Since the issues to be determined by three-Judge Bench, as
mentioned in para 6, are hedging around the 'right to appeal' given to
a 'victim', we may briefly notice the evolution of that right under the
Indian legal regime.
(25). The Code of Criminal Procedure when originally enacted in
the year 1861 did not provide for any right to appeal against acquittal
to anyone including the State. It was in the Code of Criminal
Procedure of 1898 that Section 417 was inserted enabling the
Government to direct the Public Prosecutor to present an appeal to
the High Court from an original or appellate order of acquittal passed
by any Court other than a High Court. The Law Commission of India
in its 41st Report given in September, 1969 as also in 48th Report
pertaining to the Criminal Procedure Bill, 1970, however,
recommended to restrict the right of appeal given to the State
Government against an order of acquittal by introducing the concept
of 'leave to appeal' and that all appeals against acquittal should come
to the High Court though it rejected the right to appeal to "the victim
of a crime or his relatives".
(26). The Code of Criminal Procedure, 1973 came into being on
January 25, 1974 repealing the Code of Criminal Procedure, 1898.
The recommendations made by the Law Commission of India,
referred to above, largely found favour with the Parliament when it
inserted an embargo in sub-Section (3) to Section 378 against
entertainment of an appeal against acquittal "except with the leave of
the High Court". Sub- section (4) of Section 378 retained the
condition of maintainability of an appeal at the instance of a
complainant against an order of acquittal passed in a complaint-case
only if special leave to appeal was granted by the High Court. Save in
the manner as permitted by Section 378, no appeal could lie against
an order of acquittal in view of the express embargo created by
Section 372 according to which "no appeal shall lie from any
judgement or order of a Criminal Court except as provided for by this
Code or by any other law for the time being in force". The Code of
Criminal Procedure (Amendment) Act, 2005:
(27). Hon'ble Supreme Court in a string of decisions a few of which are
already cited, has recognized time and again one or the other right of
the 'victim' including locus standi of his/her family members to appeal
against acquittal in the broadest sense. Notwithstanding these
decisions or the chorus of such like rights being heard in all civic
societies, the Legislature in its wisdom did not deem it necessary to
permit a 'victim' to appeal against the acquittal of his wrong-doer
even while carrying out sweeping amendments in the Code in the
year 2005…..”
12. Before adverting to the relative merits of the case, it would
be necessary to first make note of the application filed by the
complainant/respondent under Sections 301 and 302 Cr.P.C., which
reads thus:
“Application under Section 301 and 302 of Cr.P.C., 1973 on
behalf of Sh. Radha Krishan Kuthiala, with a prayer for
assisting prosecution in the above titled case.
1. That the above titled case is pending of adjudication
before this Ld. Court for offences U/s 420, 468, 467 of
IPC.
2. That the complainant Sh. Radha Krishan Kuthiala had
filed a complaint in the said case with regard to said
offences.
3. That the undersigned wants to assist the prosecution in
the said case through the undersigned counsel.
It is, therefore, prayed that the present application may
very kindly be allowed and the undersigned counsel be
permitted to assist the prosecution as per the provisions of
Cr.P.C.”
13. A perusal of the aforesaid application would reveal that not
only in the prayer clause, but even in the heading of the application the
only relief prayed for by the respondent was that he through his
counsel, be permitted to assist the prosecution and had not sought any
permission to conduct the trial of the case. It was perhaps for this
reason that even the petitioner had not opposed the application as is
evident from order dated 4.8.2012, the relevant portion thereof, reads
as under:
“At this stage, Sh. Gautam Sood, Advocate, moved an
application U/s 301 & 302 Cr.P.C, the same is considered and
allowed as not opposed by Ld. APP.”
14. Notably, there is an ocean of difference between assisting
the Public Prosecutor under Section 301 and conducting the
prosecution on the basis of a permission granted under Section 302. A
Public Prosecutor is not actuated by any personal interest in the case.
Whereas, the pleader engaged by a person, who is a de facto
complainant has a personal interest in the case.
15. Now, adverting to the judgment rendered by the Hon’ble
Supreme Court in Dhariwal Industries Ltd. vs. Kishore Wadhwani
and others AIR 2016 SC 4369, it would be noticed that the learned
Single Judge of the Bombay High Court had modified the order passed
by the Additional Chief Metropolitan Magistrate, whereby he had
permitted the appellant before the Hon’ble Supreme Court (Dhariwal
Industries) to be heard at the stage of framing of charge under Section
239 of the Code of Criminal Procedure by expressing the view that the
role of the complainant was limited under Section 301 Cr.P.C. and that
he could not be allowed to take control over the prosecution by directly
addressing the Court, but can only act under the directions of the
Assistant Public Prosecutor in charge of the case.
16. The Hon’ble Supreme Court not only upheld the order
passed by the Bombay High Court, but it even explained the distinction
between Sections 301 and 302 Cr.P.C. as would be evident from the
following observations:
“8. Section 301 CrPC reads as follows:-
“Appearance by Public Prosecutors.-(1) The Public
Prosecutor or Assistant Public Prosecutor in charge of a
case may appear and plead without any written authority
before any court in which that case is under inquiry, trial
or appeal.
(2) If in any such case any private person instructs a
pleader to prosecute any person in any Court, the Public
Prosecutor or Assistant Public Prosecutor in charge of
the case shall conduct the prosecution, and the pleader
so instructed shall act therein under the directions of the
Public Prosecutor or Assistant Public Prosecutor, and
may, with the permission of the Court, submit written
arguments after the evidence is closed in the case.”
9. In Shiv Kumar (supra), the Court has clearly held that
the said provision applies to the trials before the Magistrate as
well as Court of Session.
10. Section 302 CrPC which is pertinent for the present
case reads as follows:-
“Permission to conduct prosecution-(1)Any
Magistrate inquiring into or trying a case may permit the
prosecution to be conducted by any person other than
police officer below the rank of Inspector; but no person,
other than the Advocate-General or Government
Advocate or a Public Prosecutor or Assistant Public
Prosecutor, shall be entitled to do so without such
permission:
Provided that no police officer shall be permitted
to conduct the prosecution if he has taken part in the
investigation into the offence with respect to which the
accused is being prosecuted.
(2) Any person conducting the prosecution may do so
personally or by a pleader.”
11. In Shiv Kumar (supra) interpreting the said provision, the
Court has ruled:-
“ 8. It must be noted that the latter provision is intended
only for magistrate courts. It enables the magistrate to
permit any person to conduct the prosecution. The only
rider is that magistrate cannot give such permission to a
police officer below the rank of Inspector. Such person
need not necessarily be a Public Prosecutor.
9. In the Magistrate’s Court anybody (except a police
officer below the rank of Inspector) can conduct
prosecution, if the Magistrate permits him to do so. Once
the permission is granted the person concerned can
appoint any counsel to conduct the prosecution on his
behalf in the Magistrate’s Court.
11. The old Criminal Procedure Code (1898) contained
an identical provision in Section 270 thereof. A Public
Prosecutor means any person appointed under Section
24 and includes any person acting under the directions
of the Public Prosecutor,(vide Section 2(u) of the Code).
12. In the backdrop of the above provisions we have to
understand the purport of Section 301 of the Code.
Unlike its succeeding provision in the Code, the
application of which is confined to magistrate courts, this
particular section is applicable to all the courts of
criminal jurisdiction. This distinction can be discerned
from employment of the words any court in Section 301.
In view of the provision made in the succeeding section
as for magistrate courts the insistence contained in
Section 301(2) must be understood as applicable to all
other courts without any exception. The first sub-section
empowers the Public Prosecutor to plead in the court
without any written authority, provided he is in charge of
the case. The second sub-section, which is sought to be
invoked by the appellant, imposes the curb on a counsel
engaged by any private party. It limits his role to act in
the court during such prosecution under the directions of
the Public Prosecutor. The only other liberty which he
can possibly exercise is to submit written arguments
after the closure of evidence in the trial, but that too can
be done only if the court permits him to do so.”
12. It is apt to note here that in the said decision it has
also been held that from the scheme of CrPC, the legislative
intention is manifestly clear that prosecution in a Sessions
Court cannot be conducted by anyone other than the public
prosecutor. It is because the legislature reminds the State that
the policy must strictly conform to fairness in the trial of an
accused in a Sessions Court. The Court has further observed
that a public prosecutor is not expected to show the thirst to
reach the case in the conviction of the accused somehow or the
other irrespective of the true facts involved in the case.
13. In J.K. International (AIR 2001 SC 1142) (supra), a
three-Judge Bench was adverting in detail to Section 302
CrPC. In that context, it has been opined that the private
person who is permitted to conduct prosecution in the
Magistrate’s Court can engage a counsel to do the needful in
the court in his behalf. If a private person is aggrieved by the
offence committed against him or against any one in whom he
is interested he can approach the Magistrate and seek
permission to conduct the prosecution by himself. This Court
further proceeded to state that it is open to the court to consider
his request and if the court thinks that the cause of justice
would be served better by granting such permission the court
would generally grant such permission. Clarifying further, it has
been held that the said wider amplitude is limited to
Magistrate’s Court, as the right of such private individual to
participate in the conduct of prosecution in the sessions court is
very much restricted and is made subject to the control of the
public prosecutor.
14. Having carefully perused both the decisions, we do not
perceive any kind of anomaly either in the analysis or ultimate
conclusion arrived by the Court. We may note with profit that in
Shiv Kumar (supra), the Court was dealing with the ambit and
sweep of Section 301 CrPC and in that context observed that
Section 302 CrPC is intended only for the Magistrate’s Court. In
J.K. International (supra) from the passage we have quoted
hereinbefore it is evident that the Court has expressed the view
that a private person can be permitted to conduct the
prosecution in the Magistrate’s Court and can engage a
counsel to do the needful on his behalf. The further observation
therein is that when permission is sought to conduct the
prosecution by a private person, it is open to the court to
consider his request. The Court has proceeded to state that the
Court has to form an opinion that cause of justice would be best
subserved and it is better to grant such permission. And, it
would generally grant such permission. Thus, there is no
cleavage of opinion.
15. In Sundeep Kumar Bafna (AIR 2014 SC 1745) (supra),
the Court was dealing with rejection of an order of bail under
Section 439 CrPC and what is meant by “custody”. Though the
context was different, it is noticeable that the Court has
adverted to the role of public prosecutor and private counsel in
prosecution and in that regard, has held as follows:-
“... in Shiv Kumar v. Hukam Chand (supra), the question
that was posed before another three - Judge Bench was
whether an aggrieved has a right to engage its own
counsel to conduct the prosecution despite the presence
of the Public Prosecutor. This Court duly noted that the
role of the Public Prosecutor was upholding the law and
putting together a sound prosecution; and that the
presence of a private lawyer would inexorably
undermine the fairness and impartiality which must be
the hallmark, attribute and distinction of every proper
prosecution. In that case the advocate appointed by the
aggrieved party ventured to conduct the crossexamination
of the witness which was allowed by the
trial court but was reversed in revision by the High Court,
and the High Court permitted only the submission of
written argument after the closure of evidence.
Upholding the view of the High Court, this Court went on
to observe that before the Magistrate any person (except
a police officer below the rank of Inspector) could
conduct the prosecution, but that this laxity is
impermissible in the Sessions by virtue of Section 225
CrPC, which pointedly states that the prosecution shall
be conducted by a Public Prosecutor. ...”
16. Mr. Tulsi, learned senior counsel, has drawn inspiration
from the aforesaid authority as Shiv Kumar (supra) has been
referred to in the said judgment and the Court has made a
distinction between the role of the public prosecutor and the
role of a complainant before the two trials, namely, the sessions
trial and the trial before a Magistrate’s Court.
17. As the factual score of the case at hand is concerned, it
is noticeable that the trial court, on the basis of an oral prayer,
had permitted the appellant to be heard along with the public
prosecutor. Mr. Tulsi, learned senior counsel submitted such a
prayer was made before the trial Magistrate and he had no
grievance at that stage but the grievance has arisen because of
the interference of the High Court that he can only participate
under the directions of the Assistant Public Prosecutor in
charge of the case which is postulated under Section 301
CrPC.
18. We have already explained the distinction between
Sections 301 and 302 CrPC. The role of the informant or the
private party is limited during the prosecution of a case in a
Court of Session. The counsel engaged by him is required to
act under the directions of public prosecutor. As far as Section
302 CrPC is concerned, power is conferred on the Magistrate
to grant permission to the complainant to conduct the
prosecution independently.
19. .We would have proceeded to deal with the relief prayed
for by Mr. Tulsi but, no application was filed under Section 302
CrPC and, therefore, the prayer was restricted to be heard
which is postulated under Section 301 CrPC. Mr. Singh,
learned senior counsel appearing for the respondents would
contend that an application has to be filed while seeking
permission. Bestowing our anxious consideration, we are
obliged to think that when a complainant wants to take the
benefit as provided under Section 302 CrPC, he has to file a
written application making out a case in terms of J.K.
International (supra) so that the Magistrate can exercise the
jurisdiction as vested in him and form the requisite opinion.”
17. It would be clear from the aforesaid that the role of the
informant or the private party is limited during the prosecution of a case
in a Court of Session. The counsel engaged by him is required to act
under the directions of public prosecutor. However, as far as Section
302 Cr.P.C. is concerned, power is conferred on the Magistrate to
grant permission to the complainant to conduct the prosecution
independently. However, such permission has to be expressly obtained
by filing a written application.
18. At this stage, it also needs to be clarified that though the
application was filed by the respondent invoking both the provisions as
contained in Sections 301 and 302 Cr.P.C. and even the learned
Magistrate considered and allowed the same vide his order dated
4.8.2012. However, the permission so granted by the learned
Magistrate has essentially to be read and considered in light of the
prayer contained in the application.
19. Once the respondent had specifically sought permission
that his counsel be permitted to assist the prosecution, he cannot turn
around to contend that such permission included a right to conduct the
trial. Therefore, the petitioner at this stage has every right to object
against the filing of the application directly by the counsel engaged by
the respondent, instead of the same having been filed by the Public
Prosecutor.
20. Adverting to the facts, it would be noticed that the
application filed by the complainant/respondent under Sections 294
and 311 Cr.P.C. was opposed by the petitioner by filing reply wherein
number of preliminary objections had been raised including the
maintainability of the application on the ground that the complainant
was granted permission to assist the Public Prosecutor but he was
overstepping his limits by moving the application directly through his
counsel.
21. Strangely enough, the learned trial Magistrate somehow
assumed that the application had been filed by the complainant/State
which finding is contrary to the record. Before allowing the application,
it was obligatory on the Magistrate to have first gone into the question
of maintainability of the application and only thereafter could the same
have been allowed, more particularly, when the petitioner had
questioned the locus-standi of the complainant/respondent. Having
failed to take into consideration all these facts and law on the subject,
the order passed by the learned Magistrate cannot be sustained.
22. In view of the aforesaid discussion, there is merit in the
petition and the same is accordingly allowed and the order dated
21.7.2015 passed by the learned Magistrate is quashed and set-aside.
However, it shall not prevent the respondent, if so advised, from filing
an application under Section 302 Cr.P.C. before the learned Magistrate
and as and when the same is filed, the learned Magistrate shall
consider the same in accordance with law.
23. With the aforesaid observations, the petition is disposed of
in terms of the liberty aforesaid, so also the pending application(s) if
any.
November 4th, 2016. (Tarlok Singh Chauhan)
(GR) Judge
Print Page
application was filed by the respondent invoking both the provisions as
contained in Sections 301 and 302 Cr.P.C. and even the learned
Magistrate considered and allowed the same vide his order dated
4.8.2012. However, the permission so granted by the learned
Magistrate has essentially to be read and considered in light of the
prayer contained in the application.
19. Once the respondent had specifically sought permission
that his counsel be permitted to assist the prosecution, he cannot turn
around to contend that such permission included a right to conduct the
trial. Therefore, the petitioner at this stage has every right to object
against the filing of the application directly by the counsel engaged by
the respondent, instead of the same having been filed by the Public
Prosecutor.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. MMO No. 256 of 2015
Date of decision : November 4th , 2016.
Sateesh Chander Kuthiala .
V
State of Himachal Pradesh and another
Coram
Mr. Justice Tarlok Singh Chauhan, Judge.
Citation: 2017 CRLJ 97
The moot question that falls for consideration in this
petition under Section 482 Cr.P.C. is as to whether the complainant
can conduct the trial when admittedly he has only sought and granted
permission by the learned trial Court to assist and not conduct the trial.
2. This petition arises out of the order passed by learned
Chief Judicial Magistrate, Shimla, H.P. in Cr.M.A. No. 6-4 of 2015 on
21.7.2015 whereby the application filed by the complainant/respondent
under Sections 294 and 311 of the Code of Criminal Procedure, 1973,
through his counsel, seeking permission to tender in evidence certified
copies of the judgment passed by learned Sub Judge (II), Shimla in
Case No. 62/I of 1985 titled Shri Radha Krishan Kuthiala versus Shri
Gian Chand Kuthiala and copy of judgments dated 31.3.1998 passed
by learned Additional District Judge, Shimla passed in Civil Appeal
No.105/S/13 of 88/86 in case titled Shri Hari Krishan and others versus
Shri Radha Krishan and others, came to be allowed.
3. Mr. K.D. Sood, Senior Advocate, assisted by Mr. Dushyant
Dadwal, Advocate, would vehemently contend that even if permission
had been granted by the learned trial Magistrate to the respondent to
assist the Public Prosecutor in the trial, it did not in any manner
authorise the complainant/respondent to directly file the application in
question, through his counsel, that too, without even associating the
Public Prosecutor as this would not be assisting but would amount to
conducting the trial itself.
4. On the other hand, Mr. Gautam Sood, learned counsel for
the complainant/respondent would strenuously argue that once the
permission has been granted to the complainant under Sections 301
and 302 Cr.P.C., then the complainant was not only entitle to assist the
Public Prosecutor, but he could even conduct the trial independently.
5. Both the parties have placed reliance on the latest
judgment of the Hon’ble Supreme Court in Dhariwal Industries Ltd.
vs. Kishore Wadhwani and others AIR 2016 SC 4369 to contend
that the point in issue is squarely answered in their favour.
I have heard learned counsel for the parties and gone
through the material placed on record carefully.
6. It would be noticed that prior to 31.12.2009 the concept of
“victim” was virtually alien to the Code of Criminal Procedure. However,
the Code of Criminal Procedure (Amendment) Act, 2008, brought
about widespread amendments not only by introducing the definition of
victim as Section 2 (wa) w.e.f. 31.12.2009, but various other provisions
were also included in the Code for benefit of the victim. Thereby
recognizing the importance and relevance of a “victim” in not only the
process of investigation, enquiry, trial, but even in matters relating to
appeal, revision etc.
7. The statement of objects and reasons for introducing the
amendment inter alia mentions that “At present, the victims are the
worst sufferers in a crime and they don’t have much role in the Court
proceedings. They need to be given certain rights and compensation,
so that there is no distortion of the criminal justice system.”
8. The definition of “victim” as found in Section 2(wa) reads
as under:
“Section 2 (wa) “victim” means a person who has suffered any
loss or injury caused by reason of the act or omission for which
the accused person has been charged and the expression
“victim” includes his or her guardian or legal heir.”
9. The new clause introduces a definition of “victim” to confer
certain rights on the guardians and legal heirs of the victim like to
engage an Advocate under Section 24 (8), right to file an appeal under
proviso to Section 372, to claim compensation under new Section
357-A.
10. The Scheme behind the insertion of this new definition of
“victim” is also apparent from the insertion of a proviso to Section 24
(8) of Cr.P.C., so as to enable a victim, or those who are covered by
this definition, to engage an advocate of his/their choice to assist the
prosecution. Since the entire criminal justice machinery is set into
motion on the asking of or due to the sufferings of the victim, the law
makers have deemed it fit to enable the victim to actively participate in
the judicial process. There can be no manner of doubt that right from
the occurrence of the incident till the ultimate decision by the highest
Court of law, the “victim” is as much interested in the decision as is the
accused or the State. In fact, the “victim” on account of his being the
sufferer/injured, has to be recognized as the most aggrieved party in a
crime.
11. The rights of a “victim”, who can be said to be a “victim”,
whether the same would include the complainant, what are his rights
etc. have been subject matter of a Full Bench of the Punjab and
Haryana High Court in M/s Tata Steel Ltd vs. M/s Atma Tube
Products Ltd. and others, 2014 (173) Pun.LR 1 and it shall be
worthwhile to extract some portions of the judgment, which reads thus:
“(7). The universalist views on criminal justice system emphasize
on the norms collectively recognized and accepted by all of humanity.
The internationally accepted norms whereunder an individual's
criminal act(s) is accountable are universally binding and applicable
across national borders on the premise that crimes committed are not
just against individual victims but also against mankind as a whole.
The crime against an individual thus transcends and is taken as an
assault on humanity itself. It is the concept of the humanity at large
as a victim which has essentially characterized 'crimes' on
universally- accepted principles. The acceptability of this principle
was the genesis of Criminal Justice System with State dominance
and jurisdiction to investigate and adjudicate the 'crime'. For long, the
criminal law had been viewed on a dimensional plane wherein the
Courts were required to adjudicate between the accused and the
State. The 'victim' - the de facto sufferer of a crime had no
participation in the adjudicatory process and was made to sit outside
the Court as a mute spectator. The ethos of criminal justice
dispensation to prevent and punish 'crime' would surreptitiously turn
its back on the 'victim' of such crime whose cries went unnoticed for
centuries in the long corridors of the conventional apparatus. Various
international Declarations, domestic legislations and Courts across
the world recognized the 'victim' and they voiced together for his right
of representation, compensation and assistance. The UN Declaration
of Basic Principles of Justice for the Victims of Crime and Abuse of
Power, 1985, which was ratified by a substantial number of countries
including India, was a landmark in boosting the pro-victim movement.
The Declaration defined a 'victim' as someone who has suffered
harm, physical or mental injury, emotional suffering, economic loss,
impairment of fundamental rights through acts or omissions that are
in violation of criminal laws operative within a State, regardless of
whether the perpetrator is identified, apprehended, prosecuted or
convicted and regardless of the familial relationship between the
perpetrator and the 'victim'.
(8). European Union (EU) also took great strides in granting and
protecting the rights of 'victims' through various Covenants including
the following:-
i. The position of a victim in the framework of Criminal Law and
Procedure, Council of Europe Committee of Ministers to Member
States, 1985;
ii. Strengthening victim's right in the EU communication from the
Commission to the European Parliament, the Council, the Economic
and Social Committee and the Committee of the Reasons, European
Union, 2011;
iii. Proposal for a Directive of the European Parliament and of the
Council establishing "Minimum Standards on the Rights, Support and
Protection of Victims of Crime, European Union, 2011".
(9). The United States of America (USA) had earlier made two
enactments on the subject i.e. (i) The Victims of Crime Act, 1984
under which legal assistance is granted to the crime-victims; and (ii)
The Victims' Rights and Restitution Act of 1990, followed by
meaningful amendments, repeal and insertion of new provisions in
both the Statutes through an Act passed by the House of
Representatives as well as the Senate on April 22, 2004.
(10). In Australia, the Legislature has enacted South Australia
Victims of Crime Act, 2001 while in Canada there are two legislations
known as Victims of Crime Act, Prince Edward Island and Victims of
Crime Act, British Columbia. Most of these legislations have defined
the 'victim' of a crime liberally and have conferred varied rights on
such victims.
Indian Perspective:
(11). Much before the United Nations stepped into or the other
developed nations legislated for the protection and promotion of
victims' rights, the Supreme Court in Rattan Singh vs. State of
Punjab, (1979) 4 SCC 719, lamented against complete desertion of a
victim in our criminal jurisprudence observing that "The victimization
of the family of the convict may well be a reality and is regrettable. It
is a weakness of our jurisprudence that the victims of the crime, and
the distress of the dependants of the prisoner, do not attract the
attention of the law. Indeed, victim reparation is still the vanishing
point of our criminal law. This is a deficiency in the system which
must be rectified by the Legislature. We can only draw attention to
this matter. Hopefully, the Welfare State will bestow better thought
and action to traffic justice in the light of the observations we have
made".
(12). The Legislature though did not come forward to address the
issue but the Law Commission of India, nonetheless, in its 154th
Report attributed Chapter-XV on "Victimology" made radical
recommendations on the aspect of compensatory justice through a
Victim Compensation Scheme. Thereafter came the report of a
Committee on the Reforms of Criminal Justice System, commonly
known as "Malimath Committee Report, 2003". The Committee was
constituted by Government of India with an avowed object of
suggesting ways and means for developing a cohesive system in
which all the parts work in coordination to achieve the common goal
as the people by and large have lost confidence in the criminal justice
system and the bewildered victim is crying for attention and justice.
The Committee recommended the right of the victim or his legal
representative 'to be impleaded as a party in every criminal
proceeding where the charge is punishable with seven years
imprisonment or more'; the right of voluntary organizations for
impleadment in court proceedings in select cases; the victim's right to
be represented by an advocate of his choice and if he is not in a
position to afford, to provide an advocate at the State's expenses;
victim's right to participate in criminal trial; the right to know the status
of investigation and take necessary steps in this regard and to be
heard at crucial stages of the criminal trial including at the time of
grant or cancellation of bail. The Committee further recommended
that "the victim shall have a right to prefer an appeal against any
adverse order...; he should be provided legal services and that 'victim
compensation' is a State obligation in all serious crimes, whether the
offender is apprehended or not, convicted or acquitted" and for this
object a separate legislation be enacted.
(13). Soon after the Malimath Committee report came the verdict in
Jahira Habibullah H. Sheikh & Anr. vs. State of Gujarat & Ors.,
(2004) 4 SCC 158, ripping apart the ailing criminal justice system in
India and ordering re-trial of Best Bakery Case and desirability of
further investigation in terms of Section 173(8) CrPC due to the
factors like dishonest and faulty investigation, holding of trial in a
perfunctory manner, non-production of vital witnesses, prosecuting
agency acting unfairly and forcing eye-witnesses to turn hostile,
resulting into the acquittal of several accused suspected to be
involved in the gruesome murder of as many as 14 people as a result
of communal frenzy.
(14). Before we proceed further, let there be a special reference to
those decisions of the Hon'ble Supreme Court which built up the
victim's right brick by brick, revolutionalised the conventional criminal
justice system and sensitized its stakeholders, notwithstanding the
fact that statutory initiatives through the desired amendments in the
Code of Criminal Procedure, 1973 (in short, 'the Code') were still
illusory.
(15). In PSR Sadhanantham vs. Arunachalam & Anr., (1980) 3
SCC 141, the Constitution Bench considered the question whether
the brother of a victim who had been murdered, possessed the right
to petition under Article 136 of the Constitution for special leave to
appeal against the acquittal of the accused? After noticing that under
the Code, the right of appeal vested in the State is subject to leave to
be granted by the High Court and a complainant's right to appeal was
also subject to his obtaining 'special leave' to appeal from the High
Court, it was held that a petition filed by the private party other than
the complainant should be entertained "in those cases only where it
is convinced that the public interest justifies an appeal against the
acquittal and that the State has refrained from petitioning from
special leave for reasons which do not bear on the public interest but
are prompted by private influence, want of bona fide and other
extraneous considerations".
(16). In Bhagwant Singh vs. Commissioner of Police, (1985) 2 SCC 537,
the right of the complainant to be heard before the acceptance of a
cancellation report submitted by the police after investigation of the
FIR, was accepted laying down that the informant must be given an
opportunity of hearing so that he could make his submissions to
persuade the Magistrate to take cognizance of the offence and issue
due process.
(17). In M/s JK International vs. State Government of NCT of Delhi, (2001)
3 SCC 462, the Supreme Court recognized the right of the
complainant at whose instance the police-case was registered, to be
heard by the High Court in the proceedings initiated by the accused
for quashing those proceedings. It held thus:-
"9. The scheme envisaged in the Code of Criminal procedure
(for short the Code) indicates that a person who is aggrieved
by the offence committed, is not altogether wiped out from the
scenario of the trial merely because the investigation was
taken over by the police and the charge sheet was laid by
them. Even the fact that the court had taken cognizance of
the offence is not sufficient to debar him from reaching the
court for ventilating his grievance. Even in the sessions court,
where the Public Prosecutor is the only authority empowered
to conduct the prosecution as per Section 225 of the Code, a
private person who is aggrieved by the offence involved in the
case is not altogether debarred from participating in the
trial..."
(18). In Puran Shekhar and Anr. vs. Rambilas & Anr., (2001) 6
SCC 338, the locus standi of father of the deceased in a dowry death
case, to move the High Court and seek cancellation of bail granted
by the Sessions Court was upheld as he was not a stranger.
(19). In Delhi Domestic Working Women's Forum vs. Union of India
& Ors, (1995) 1 SCC 14, the Supreme Court in exercise of its PIL
jurisdiction directed the National Commission for Women to evolve a
Scheme to protect rape victims through various measures and cast
obligation on the Union of India to implement the Scheme so evolved
by the Commission.
(20). Rama Kant Rai vs. Madan Rai & Ors., (2003) 12 SCC 395
was a case where against an order of acquittal passed by the High
Court in a murder case, the right of the private party to file an appeal
under Article 136 of the Constitution was eloquently recognized
especially to meet the pressing demands of justice.
(21). In Sakshi vs. Union of India & Ors, (2004) 5 SCC 518,
mandatory guidelines for the recording of evidence of victim of
offence under Sections 354, 375, 367 & 377 IPC were laid down.
(22). In Mosiruddin Munshi vs. Mohammad Siraj & Ors., (2008) 8
SCC 434, the right of the complainant to be heard before an order
affecting the criminal proceedings initiated at his instance was
recognized and it was held that the FIR could not be quashed by the
High Court at the instance of the accused without notice to the
original complainant.
(23). Some of the High Courts also dutifully espoused the cause of
'victims' and expanded the jurisprudence to create a space for them
at one or the other stage of Court hearings. We may usefully quote
the following observations made by a Division Bench of Assam High
Court in NC Bose vs. Prabodh Dutta Gupta, AIR 1955 (Assam) 116:-
"[I]t seems to me that the person vitally interested in the issue
of the prosecution or the trial is the person aggrieved who
'initiates' the proceedings. He may be both civilly and
criminally liable if, on account of any unfairness or partiality,
the trial or the proceeding ends in wrongful acquittal or
discharge of the accused. The Legislature therefore could not
have intended to shut out such a person from coming to the
High Court and claiming redress under Section 526 of the
Code. The words should be construed to have the widest
amplitude so long as the effect of the interpretation is not to
open the door to frivolous applications at the instance of
intermeddlers or officious persons having no direct interest in
the prosecution or trial".
Evolution of Right to Appeal:
(24). Since the issues to be determined by three-Judge Bench, as
mentioned in para 6, are hedging around the 'right to appeal' given to
a 'victim', we may briefly notice the evolution of that right under the
Indian legal regime.
(25). The Code of Criminal Procedure when originally enacted in
the year 1861 did not provide for any right to appeal against acquittal
to anyone including the State. It was in the Code of Criminal
Procedure of 1898 that Section 417 was inserted enabling the
Government to direct the Public Prosecutor to present an appeal to
the High Court from an original or appellate order of acquittal passed
by any Court other than a High Court. The Law Commission of India
in its 41st Report given in September, 1969 as also in 48th Report
pertaining to the Criminal Procedure Bill, 1970, however,
recommended to restrict the right of appeal given to the State
Government against an order of acquittal by introducing the concept
of 'leave to appeal' and that all appeals against acquittal should come
to the High Court though it rejected the right to appeal to "the victim
of a crime or his relatives".
(26). The Code of Criminal Procedure, 1973 came into being on
January 25, 1974 repealing the Code of Criminal Procedure, 1898.
The recommendations made by the Law Commission of India,
referred to above, largely found favour with the Parliament when it
inserted an embargo in sub-Section (3) to Section 378 against
entertainment of an appeal against acquittal "except with the leave of
the High Court". Sub- section (4) of Section 378 retained the
condition of maintainability of an appeal at the instance of a
complainant against an order of acquittal passed in a complaint-case
only if special leave to appeal was granted by the High Court. Save in
the manner as permitted by Section 378, no appeal could lie against
an order of acquittal in view of the express embargo created by
Section 372 according to which "no appeal shall lie from any
judgement or order of a Criminal Court except as provided for by this
Code or by any other law for the time being in force". The Code of
Criminal Procedure (Amendment) Act, 2005:
(27). Hon'ble Supreme Court in a string of decisions a few of which are
already cited, has recognized time and again one or the other right of
the 'victim' including locus standi of his/her family members to appeal
against acquittal in the broadest sense. Notwithstanding these
decisions or the chorus of such like rights being heard in all civic
societies, the Legislature in its wisdom did not deem it necessary to
permit a 'victim' to appeal against the acquittal of his wrong-doer
even while carrying out sweeping amendments in the Code in the
year 2005…..”
12. Before adverting to the relative merits of the case, it would
be necessary to first make note of the application filed by the
complainant/respondent under Sections 301 and 302 Cr.P.C., which
reads thus:
“Application under Section 301 and 302 of Cr.P.C., 1973 on
behalf of Sh. Radha Krishan Kuthiala, with a prayer for
assisting prosecution in the above titled case.
1. That the above titled case is pending of adjudication
before this Ld. Court for offences U/s 420, 468, 467 of
IPC.
2. That the complainant Sh. Radha Krishan Kuthiala had
filed a complaint in the said case with regard to said
offences.
3. That the undersigned wants to assist the prosecution in
the said case through the undersigned counsel.
It is, therefore, prayed that the present application may
very kindly be allowed and the undersigned counsel be
permitted to assist the prosecution as per the provisions of
Cr.P.C.”
13. A perusal of the aforesaid application would reveal that not
only in the prayer clause, but even in the heading of the application the
only relief prayed for by the respondent was that he through his
counsel, be permitted to assist the prosecution and had not sought any
permission to conduct the trial of the case. It was perhaps for this
reason that even the petitioner had not opposed the application as is
evident from order dated 4.8.2012, the relevant portion thereof, reads
as under:
“At this stage, Sh. Gautam Sood, Advocate, moved an
application U/s 301 & 302 Cr.P.C, the same is considered and
allowed as not opposed by Ld. APP.”
14. Notably, there is an ocean of difference between assisting
the Public Prosecutor under Section 301 and conducting the
prosecution on the basis of a permission granted under Section 302. A
Public Prosecutor is not actuated by any personal interest in the case.
Whereas, the pleader engaged by a person, who is a de facto
complainant has a personal interest in the case.
15. Now, adverting to the judgment rendered by the Hon’ble
Supreme Court in Dhariwal Industries Ltd. vs. Kishore Wadhwani
and others AIR 2016 SC 4369, it would be noticed that the learned
Single Judge of the Bombay High Court had modified the order passed
by the Additional Chief Metropolitan Magistrate, whereby he had
permitted the appellant before the Hon’ble Supreme Court (Dhariwal
Industries) to be heard at the stage of framing of charge under Section
239 of the Code of Criminal Procedure by expressing the view that the
role of the complainant was limited under Section 301 Cr.P.C. and that
he could not be allowed to take control over the prosecution by directly
addressing the Court, but can only act under the directions of the
Assistant Public Prosecutor in charge of the case.
16. The Hon’ble Supreme Court not only upheld the order
passed by the Bombay High Court, but it even explained the distinction
between Sections 301 and 302 Cr.P.C. as would be evident from the
following observations:
“8. Section 301 CrPC reads as follows:-
“Appearance by Public Prosecutors.-(1) The Public
Prosecutor or Assistant Public Prosecutor in charge of a
case may appear and plead without any written authority
before any court in which that case is under inquiry, trial
or appeal.
(2) If in any such case any private person instructs a
pleader to prosecute any person in any Court, the Public
Prosecutor or Assistant Public Prosecutor in charge of
the case shall conduct the prosecution, and the pleader
so instructed shall act therein under the directions of the
Public Prosecutor or Assistant Public Prosecutor, and
may, with the permission of the Court, submit written
arguments after the evidence is closed in the case.”
9. In Shiv Kumar (supra), the Court has clearly held that
the said provision applies to the trials before the Magistrate as
well as Court of Session.
10. Section 302 CrPC which is pertinent for the present
case reads as follows:-
“Permission to conduct prosecution-(1)Any
Magistrate inquiring into or trying a case may permit the
prosecution to be conducted by any person other than
police officer below the rank of Inspector; but no person,
other than the Advocate-General or Government
Advocate or a Public Prosecutor or Assistant Public
Prosecutor, shall be entitled to do so without such
permission:
Provided that no police officer shall be permitted
to conduct the prosecution if he has taken part in the
investigation into the offence with respect to which the
accused is being prosecuted.
(2) Any person conducting the prosecution may do so
personally or by a pleader.”
11. In Shiv Kumar (supra) interpreting the said provision, the
Court has ruled:-
“ 8. It must be noted that the latter provision is intended
only for magistrate courts. It enables the magistrate to
permit any person to conduct the prosecution. The only
rider is that magistrate cannot give such permission to a
police officer below the rank of Inspector. Such person
need not necessarily be a Public Prosecutor.
9. In the Magistrate’s Court anybody (except a police
officer below the rank of Inspector) can conduct
prosecution, if the Magistrate permits him to do so. Once
the permission is granted the person concerned can
appoint any counsel to conduct the prosecution on his
behalf in the Magistrate’s Court.
11. The old Criminal Procedure Code (1898) contained
an identical provision in Section 270 thereof. A Public
Prosecutor means any person appointed under Section
24 and includes any person acting under the directions
of the Public Prosecutor,(vide Section 2(u) of the Code).
12. In the backdrop of the above provisions we have to
understand the purport of Section 301 of the Code.
Unlike its succeeding provision in the Code, the
application of which is confined to magistrate courts, this
particular section is applicable to all the courts of
criminal jurisdiction. This distinction can be discerned
from employment of the words any court in Section 301.
In view of the provision made in the succeeding section
as for magistrate courts the insistence contained in
Section 301(2) must be understood as applicable to all
other courts without any exception. The first sub-section
empowers the Public Prosecutor to plead in the court
without any written authority, provided he is in charge of
the case. The second sub-section, which is sought to be
invoked by the appellant, imposes the curb on a counsel
engaged by any private party. It limits his role to act in
the court during such prosecution under the directions of
the Public Prosecutor. The only other liberty which he
can possibly exercise is to submit written arguments
after the closure of evidence in the trial, but that too can
be done only if the court permits him to do so.”
12. It is apt to note here that in the said decision it has
also been held that from the scheme of CrPC, the legislative
intention is manifestly clear that prosecution in a Sessions
Court cannot be conducted by anyone other than the public
prosecutor. It is because the legislature reminds the State that
the policy must strictly conform to fairness in the trial of an
accused in a Sessions Court. The Court has further observed
that a public prosecutor is not expected to show the thirst to
reach the case in the conviction of the accused somehow or the
other irrespective of the true facts involved in the case.
13. In J.K. International (AIR 2001 SC 1142) (supra), a
three-Judge Bench was adverting in detail to Section 302
CrPC. In that context, it has been opined that the private
person who is permitted to conduct prosecution in the
Magistrate’s Court can engage a counsel to do the needful in
the court in his behalf. If a private person is aggrieved by the
offence committed against him or against any one in whom he
is interested he can approach the Magistrate and seek
permission to conduct the prosecution by himself. This Court
further proceeded to state that it is open to the court to consider
his request and if the court thinks that the cause of justice
would be served better by granting such permission the court
would generally grant such permission. Clarifying further, it has
been held that the said wider amplitude is limited to
Magistrate’s Court, as the right of such private individual to
participate in the conduct of prosecution in the sessions court is
very much restricted and is made subject to the control of the
public prosecutor.
14. Having carefully perused both the decisions, we do not
perceive any kind of anomaly either in the analysis or ultimate
conclusion arrived by the Court. We may note with profit that in
Shiv Kumar (supra), the Court was dealing with the ambit and
sweep of Section 301 CrPC and in that context observed that
Section 302 CrPC is intended only for the Magistrate’s Court. In
J.K. International (supra) from the passage we have quoted
hereinbefore it is evident that the Court has expressed the view
that a private person can be permitted to conduct the
prosecution in the Magistrate’s Court and can engage a
counsel to do the needful on his behalf. The further observation
therein is that when permission is sought to conduct the
prosecution by a private person, it is open to the court to
consider his request. The Court has proceeded to state that the
Court has to form an opinion that cause of justice would be best
subserved and it is better to grant such permission. And, it
would generally grant such permission. Thus, there is no
cleavage of opinion.
15. In Sundeep Kumar Bafna (AIR 2014 SC 1745) (supra),
the Court was dealing with rejection of an order of bail under
Section 439 CrPC and what is meant by “custody”. Though the
context was different, it is noticeable that the Court has
adverted to the role of public prosecutor and private counsel in
prosecution and in that regard, has held as follows:-
“... in Shiv Kumar v. Hukam Chand (supra), the question
that was posed before another three - Judge Bench was
whether an aggrieved has a right to engage its own
counsel to conduct the prosecution despite the presence
of the Public Prosecutor. This Court duly noted that the
role of the Public Prosecutor was upholding the law and
putting together a sound prosecution; and that the
presence of a private lawyer would inexorably
undermine the fairness and impartiality which must be
the hallmark, attribute and distinction of every proper
prosecution. In that case the advocate appointed by the
aggrieved party ventured to conduct the crossexamination
of the witness which was allowed by the
trial court but was reversed in revision by the High Court,
and the High Court permitted only the submission of
written argument after the closure of evidence.
Upholding the view of the High Court, this Court went on
to observe that before the Magistrate any person (except
a police officer below the rank of Inspector) could
conduct the prosecution, but that this laxity is
impermissible in the Sessions by virtue of Section 225
CrPC, which pointedly states that the prosecution shall
be conducted by a Public Prosecutor. ...”
16. Mr. Tulsi, learned senior counsel, has drawn inspiration
from the aforesaid authority as Shiv Kumar (supra) has been
referred to in the said judgment and the Court has made a
distinction between the role of the public prosecutor and the
role of a complainant before the two trials, namely, the sessions
trial and the trial before a Magistrate’s Court.
17. As the factual score of the case at hand is concerned, it
is noticeable that the trial court, on the basis of an oral prayer,
had permitted the appellant to be heard along with the public
prosecutor. Mr. Tulsi, learned senior counsel submitted such a
prayer was made before the trial Magistrate and he had no
grievance at that stage but the grievance has arisen because of
the interference of the High Court that he can only participate
under the directions of the Assistant Public Prosecutor in
charge of the case which is postulated under Section 301
CrPC.
18. We have already explained the distinction between
Sections 301 and 302 CrPC. The role of the informant or the
private party is limited during the prosecution of a case in a
Court of Session. The counsel engaged by him is required to
act under the directions of public prosecutor. As far as Section
302 CrPC is concerned, power is conferred on the Magistrate
to grant permission to the complainant to conduct the
prosecution independently.
19. .We would have proceeded to deal with the relief prayed
for by Mr. Tulsi but, no application was filed under Section 302
CrPC and, therefore, the prayer was restricted to be heard
which is postulated under Section 301 CrPC. Mr. Singh,
learned senior counsel appearing for the respondents would
contend that an application has to be filed while seeking
permission. Bestowing our anxious consideration, we are
obliged to think that when a complainant wants to take the
benefit as provided under Section 302 CrPC, he has to file a
written application making out a case in terms of J.K.
International (supra) so that the Magistrate can exercise the
jurisdiction as vested in him and form the requisite opinion.”
17. It would be clear from the aforesaid that the role of the
informant or the private party is limited during the prosecution of a case
in a Court of Session. The counsel engaged by him is required to act
under the directions of public prosecutor. However, as far as Section
302 Cr.P.C. is concerned, power is conferred on the Magistrate to
grant permission to the complainant to conduct the prosecution
independently. However, such permission has to be expressly obtained
by filing a written application.
18. At this stage, it also needs to be clarified that though the
application was filed by the respondent invoking both the provisions as
contained in Sections 301 and 302 Cr.P.C. and even the learned
Magistrate considered and allowed the same vide his order dated
4.8.2012. However, the permission so granted by the learned
Magistrate has essentially to be read and considered in light of the
prayer contained in the application.
19. Once the respondent had specifically sought permission
that his counsel be permitted to assist the prosecution, he cannot turn
around to contend that such permission included a right to conduct the
trial. Therefore, the petitioner at this stage has every right to object
against the filing of the application directly by the counsel engaged by
the respondent, instead of the same having been filed by the Public
Prosecutor.
20. Adverting to the facts, it would be noticed that the
application filed by the complainant/respondent under Sections 294
and 311 Cr.P.C. was opposed by the petitioner by filing reply wherein
number of preliminary objections had been raised including the
maintainability of the application on the ground that the complainant
was granted permission to assist the Public Prosecutor but he was
overstepping his limits by moving the application directly through his
counsel.
21. Strangely enough, the learned trial Magistrate somehow
assumed that the application had been filed by the complainant/State
which finding is contrary to the record. Before allowing the application,
it was obligatory on the Magistrate to have first gone into the question
of maintainability of the application and only thereafter could the same
have been allowed, more particularly, when the petitioner had
questioned the locus-standi of the complainant/respondent. Having
failed to take into consideration all these facts and law on the subject,
the order passed by the learned Magistrate cannot be sustained.
22. In view of the aforesaid discussion, there is merit in the
petition and the same is accordingly allowed and the order dated
21.7.2015 passed by the learned Magistrate is quashed and set-aside.
However, it shall not prevent the respondent, if so advised, from filing
an application under Section 302 Cr.P.C. before the learned Magistrate
and as and when the same is filed, the learned Magistrate shall
consider the same in accordance with law.
23. With the aforesaid observations, the petition is disposed of
in terms of the liberty aforesaid, so also the pending application(s) if
any.
November 4th, 2016. (Tarlok Singh Chauhan)
(GR) Judge
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