Kerala High Court
Umanath vs State Of Kerala And Anr. on 4 June, 1999
Equivalent citations: 2000CRILJ1067
ORDER K.A. Mohamed Shafi, J.
1. This Crl. M. C. is filed by the de facto complainant in C. C. No. 118/93 on the file of the Judicial First Class Magistrate's Court-II, Kanjirappally to quash An-nexure-Al order dated 12-2-1998 passed by the Magistrate.
2. On the basis of a complaint lodged by the petitioner as de facto complainant against the 2nd respondent a case in Crime No. 107/91 was registered against the 2nd respondent and after investigation charge was laid before the Judicial First Class Magistrate's Court-II, Kanjirappally alleging offences punishable under Sections 451, 342, 323 and 325 of I.P.C. and the case was registered as C. C. 118/93 by the Court. The petitioner filed a petition before the Government of Kerala to appoint a private advocate to conduct the prosecution in the place of the Assistant Public Prosecutor. As there was inordinate delay he filed O. P. No. 13832/95 before this Court and this Court disposed of that O. P. directing the authorities to dispose of the application filed by the petitioner within one month by judgment dated 25-8-1995. Accordingly by order dated 1 -9-95 the Government of Kerala informed the petitioner that if he wanted to appoint a private advocate to appear on his behalf he is at liberty to do so and will be subject to the permission granted by the Judicial First Class Magistrate, Kanjirappally. Crl. M. P. No. 6083/95 filed by the petitioner through advocate Thomas Jacob was returned by the Magistrate's Court directing to file the petition by the petitioner himself. Accordingly the petitioner filed Crl. M. P. No. 6281/95 before the Magistrate to appoint a private advocate to conduct the case in the place of the Assistant Public Prosecutor and that application was allowed by the learned Magistrate by order dated 27-10-95. Thereafter the case was posted for day-to-day trial commencing from 1-1-98 to 16-1-98 and as per the schedule the trial was commenced and the prosecution on behalf of the petitioner was conducted by the private counsel appointed and PWs. 1 to 5 were examined. At that stage the Assistant Public Prosecutor raised an objection that the advocate conducting the prosecution claiming himself to be Special Prosecutor has no locus standi. According to him, he was under the mistaken impression that the permission granted by the Court was under Section 302 of the Cr.P.C. But in fact, permission was granted under Section 301 of the Cr.P.C. Though the private advocate appointed by the petitioner contended that he is the Special Prosecutor as per the order passed by the Government and the permission granted by the Court, after hearing both sides the learned Magistrate passed the impugned order dated 12-2-98 holding that the private counsel engaged by the petitioner is under Section 301 (2) of the Cr.P.C. and no permission under Section 302 of the Cr.P.C. is granted by the Court. It is further held that the private counsel can act only under the directions of the Assistant Public Prosecutor and the prosecution has to be conducted by the A.P.P. Accordingly the evidence of PWs. 1 to 5 recorded with the private counsel acting as the Special Prosecutor was directed to be ignored and not to form part of the records of the case and directed to start trial of the case afresh. The order passed by the learned Magistrate is very much assailed in this Crl. M. C. by the petitioner.
3. The facts that the petitioner filed a complaint against the 2nd respondent making various allegations of commission of offences punishable under the I.P.C. and after investigation and laying charge-sheet by the police and taking cognizance of the offences by the learned Magistrate the petitioner filed an application before the Government to appoint a private counsel for him to prosecute the case and the Government passed an order that the appointment of a private advocate does not come within the power of the Government and if so required the petitioner can appoint a private advocate to appear on his behalf subject to the permission granted by the trial Magistrate, are not in dispute. It is also not in dispute that the learned Magistrate passed order dated 27-10-95 in Crl. M. P. No. 6281/95 filed by the petitioner appointing a private advocate to conduct the case in the place of the A.P.P. and that order was not challenged by anybody. The trial was commenced and PWs. 1 to 5 were examined by the private counsel acting as the Special Prosecutor without any objection either from the accused who is a police officer or his counsel or the A.P.P. It is only thereafter the A.P.P. raised the contention that he was under the mistaken impression that permission was granted by the Court under Section 302 of the Cr.P.C. whereas it has come to his notice that permission was granted under Section 301 of the Cr.P.C. and therefore the Special Prosecutor has no locus standi to prosecute the case.
4. The first contention raised by the petitioner is that from the very inception the petitioner has been seeking the appointment of a private counsel to conduct the case on his behalf as he was apprehensive that the Public Prosecutor will not prosecute the case against the police officer working in the same region properly and diligently. He has also contended that no application is contemplated under Section 301 of the Cr.P.C. to assist the Public Prosecutor by a private counsel in the prosecution of the case and the permission of the Court is only required to file a written argument by the private counsel so appointed. According to him, only for the appointment of a private counsel under Section 302 of the Cr.P.C. an application seeking permission of the Court is required. Therefore, the very contention raised by the A.P.P. and the finding of the learned Magistrate that the order passed in Crl. M. P. No. 6281/95 was under Section 301(2) of the Cr.P.C. and not under Section 302 of the Cr.P.C. are absolutely baseless, untenable and illegal. Section 301 of the Cr.P.C. deals with appearance by Public Prosecutor which reads as follows :
301. Appearance by Public Prosecutor- (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.
Therefore, it is clear from Section 301 of the Cr.P.C. that no application seeking permission of the Court is required for any private person to engage a pleader to assist the Public Prosecutor or the Assistant Public Prosecutor in charge of the case to conduct the prosecution and such pleader is bound to act under the directions of the P.P. or A. P. P. as the case may be and only for the purpose of filing a written argument after the evidence is closed such private advocate assisting the P.P. or A.P.P. has to seek permission of the Court. Therefore it is patent that the pleader instructed to conduct the prosecution under Section 301 of the Cr.P.C. has to act under the directions of the P.P. or A.P.P. as the case may be and that is only an affair between the Public Prosecutor and the lawyer engaged to assist him.
5. Section 302 of the Cr.P.C. deals with permission to conduct prosecution which reads as follows :
302. 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 a 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 to 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.
It is clear from Sub-section (1) of Section 302 of the Cr.P.C. that the permission of the Court is necessary to conduct the prosecution by any person other than the Advocate-General or Government Advocate or Public Prosecutor or Assistant Public Prosecutor. As already noted the petitioner herein had filed petition before the Government seeking to appoint a private advocate to appear on his behalf to conduct the prosecution and in pursuance of the order passed by the Government he filed Crl. M. P. No. 6083/95 through his advocate seeking permission to prosecute the case by the counsel and subsequently as directed by the Court he filed Crl. M. P. No. 6281/95 by himself to appoint a private advocate to conduct the case in the place of the A. P. P. and that petition was allowed. Subsequently the trial was started and the prosecution was conducted by that counsel as a Special Prosecutor.
6. In the impugned order the learned Magistrate has observed as follows:
Thereupon an application was filed by the Advocate Sri. Thomas Jacob for permission to the de facto complainant to appoint a Private Advocate to conduct the prosecution. The said application never quoted the provision of law under which it was filed and hence was taken to be one Under Section 301,' Cr.P.C., but the application was not allowed as the same was submitted by the counsel allegedly representing the de facto complainant and not by the complainant himself.
It is further stated that:
Subsequently on 27-10-95 the de facto complainant himself filed an application quoting the aforesaid Judgment of the Hon'ble High Court and the Order by the Government and the application was allowed, presumably Under Section 301, Cr.P.C. as there was absolutely no whisper regarding the existence of exceptional circumstances which alone was a ground sufficient for the Court to appoint a Private Advocate to conduct the prosecution Under Section 302, Cr.P.C.
Curiously it is also stated by the learned Magistrate in the order that:
As two years elapsed, all that transpired before escaped my notice and faded from my memory and the Advocate appointed by the de facto complainant was allowed to conduct the prosecution.
7. As already noted, from the very inception the contention of the petitioner had been that he apprehended that the Assistant Public Prosecutor will not prosecute the case diligently and effectively against the 2nd respondent and sought the appointment of a private counsel to prosecute the case on his behalf. In the applications filed by him before the learned Magistrate also he sought permission to appoint a private counsel to prosecute the case on his behalf. Therefore, it is clear that from the very inception the petitioner had been mentioning about the special reason for the appointment of a private counsel to prosecute the case on his behalf before the Court as contemplated under Section 302 of the Cr.P.C. As already noted permission of the trial Court is not necessary to appoint a pleader to act as directed by the Public Prosecutor or Assistant Public Prosecutor under Section 301 of the Cr.P.C. and the permission of the Court is required only to appoint a private counsel to prosecute the case under Section 302(1) of the Cr.P.C. Even if the applicant omitted to make mention of the provision of law under which the relief is sought, it is the duty of the Court to mould its order by applying the proper provision of law applicable to the case. Therefore, the observations made by the learned Magistrate in the impugned order that no provision of law was quoted in the application filed by the petitioner to appoint a private counsel to prosecute the case and no special reason is mentioned in the application for the appointment of a private counsel to prosecute the case, are patently erroneous from the face of the record. To say the least the observation made by the learned Magistrate to the effect that as two years elapsed all that transpired before escaped his notice and faded from his memory and the advocate appointed by the de facto complainant was allowed to conduct the prosecution, is unbecoming of a responsible judicial officer endowed with the solemn and onerous responsibility of dispensation of justice.
8. As it is clear from the provisions of subsection (1) of Section 301 of the Cr.P.C. that the engagement of a pleader by a private party and the conduct of the trial of the case by such pleader under the directions of the P.P. or A.P.P. is a matter exclusively between the Public Prosecutor and the Pleader so appointed and the Court is unconcerned with such appointment of the Pleader by a private party to act under the directions of the P.P. or A.P.P. in the prosecution of the case, no permission of the Court is necessary under Section 301(1) of the Cr.P.C. except for the purpose of submitting a written argument after completion of the trial by the pleader so appointed by the party. Under Section 302 of the Cr.P.C. the permission of the Court is mandatory to appoint a private counsel to prosecute the case in the place of Public Prosecutor or Assistant Public Prosecutor. Therefore, the application in Crl. M. P. No. 6281 /95 filed by the petitioner before the trial Court seeking permission to appoint a private advocate to conduct the case in the place of the Assistant Public Prosecutor is the application contemplated under Section 302(1) of the Cr.P.C. and that application contains specific reason for the appointment of such private counsel to prosecute the case. Therefore, by no stretch of imagination that application cannot be construed as one filed under Section 301 of the Cr.P.C. and the learned Magistrate is in manifest error by finding that the application was filed presumably under Section 301 of the Cr.P.C. and not under Section 302 of the Cr.P.C. and as such the permission granted by him was only under Section 301 of the Cr.P.C.
9. It is well settled that the Magistrate has no power or jurisdiction to review the final order passed by him. The proposition that after completing and signing the order the Magistrate has no jurisdiction or power to review or reverse the order except to rectify the clerical or arithmetical mistakes, is clear from Section 362 of the Cr.P.C. Section 362 of the Cr.P.C. lays down that save as otherwise provided in the Cr.P.C. or any other law for the time being in force, no Court shall alter or review its judgment or final order disposing of a case after it is signed by the Court except to correct a clerical or arithmetical error. In this case the learned Magistrate who has passed the order in Crl. M. P. No. 6281/95 granting permission to appoint a private advocate in the place of the Assistant Public Prosecutor to conduct the case on behalf of the petitioner by order dated 27-10-95 which has become final, as it was not challenged by anybody in any proceedings, subsequently ventured to pass the impugned order stating that for the obvious patently incorrect reason the order was passed presumably under Section 301 of the Cr.P.C. and not under Section 302 of the Cr.P.C. Therefore, the impugned order passed by the learned Magistrate nullifying the earlier final order passed by him in Crl. M. P. No. 6281/95 is absolutely without any power or jurisdiction which is prohibited under Section 362 of the Cr.P.C.
10. Even if the learned Magistrate found that the order passed by him earlier in Crl. M. P. No. 6281/95 is erroneous, the procedure adopted by him in this case is absolutely illegal and unsustainable. The course open to the Magistrate to rectify an earlier final order passed by him when he finds it erroneous subsequently is to refer the matter to the High Court along with the relevant records through the Sessions Court. But without adopting the due procedure under law the learned Magistrate himself took up the responsibility of reviewing or nullifying the earlier order passed by him. Therefore, the impugned order passed by the learned Magistrate is absolutely illegal and unsustainable on this ground also.
11. More than two years after passing the order in Crl. M. P. No. 6281/95 granting permission to the petitioner to appoint a private advocate to prosecute the case, trial was commenced, PWs. 1 to 5 were examined by that private counsel acting as the Special Prosecutor. Absolutely no objection is raised by anybody, either the Assistant Public Prosecutor or the accused or his counsel and the Court proceeded with the trial of the case with the private counsel as Special Prosecutor. Nobody has raised any contention that the private counsel was not conducting the case properly till the trial was commenced and PWs. 1 to 5 were examined. It is only thereafter the Assistant Public Prosecutor for reasons best known to himself raised the contention that he was under mistaken belief that the private counsel was appointed under Section 302(1) of the Cr.P.C. whereas in fact he was appointed under Section 301(1) of the Cr.P.C. on a very erroneous assumption without any factual or legal foundation. Therefore, the direction in the impugned order to ignore the evidence of PWs. 1 to 5 recorded with the private counsel acting as Special Prosecutor and not to form part of the records of the case and to start the trial of the case afresh is absolutely without jurisdiction, illegal and unsustainable.
12. Since the learned Magistrate after applying him mind has passed the final order in Crl. M. P. No. 6281/95 granting permission to the petitioner to appoint a private counsel to prosecute the case, the learned Magistrate cannot now say that no extraordinary or special circumstances is alleged by the petitioner in the petition filed by him for appointment of a private counsel to prosecute the case. In fact, special reasons are put forward by the petitioner in that petition seeking appointment of a private counsel to prosecute the case in the place of the Assistant Public Prosecutor. Therefore, on this score also the impugned order passed by the learned Magistrate is unsustainable.
In view of the foregoing discussions the impugned order passed by the learned Magistrate is absolutely illegal and unsustainable, passed without jurisdiction and hence the same is liable to be quashed. Therefore, this Crl. M. C. is allowed and the impugned order is quashed. The learned Magistrate is directed to proceed with the trial of the case further with the private counsel appointed by him as per order in Crl. M. P. No. 6281 /95 as Special Prosecutor and to dispose of the case in accordance with law very expeditiously.