Karnataka High Court
Smt Usha K Madalli vs State Of Karnataka on 22 February, 2016
Author: A.V.Chandrashekara
Bench: A.V. Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MR. JUSTICE A.V. CHANDRASHEKARA
WRIT PETITION No.9040/2016 (GM - RES)
BETWEEN:
SMT USHA K MADALLI
W/O SHRI K A MADALLI
AGED ABOUT 60 YEARS
OCCUPATION:CHIEF MEDICAL DIRECTOR
SOUTH CENTRAL RAILWAY
PERMANENT RESIDENT OF NO.48
BTM 1ST STAGE, 1ST CROSS
27TH MAIN, BANGALORE - 560068 ...PETITIONER
(BY SRI SHYAM SUNDAR M S, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY MADIWALA POLICE STATION
BANGALORE - 560010
2. SMT PRIYANKA ANGUR
W/O MADHUKAR ANGUR
24 YEARS
RESIDING AT NO.235
5TH BLOCK, JAYANAGAR
BANGALORE - 560004 ... RESPONDENTS
(BY SRI C V NAGESH SR.ADVOCATE FOR
SRI MURTHY D NAIK, ADVOCATE FOR R2;
SRI S RACHAIAH, HCGP FOR R1)
2
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THE
ORDER IMPUGNED DATED 12.02.2016 CRL.MISC.NO.901/2016
AT ANNEX-G PASSED BY THE DISTRICT AND SESSIONS JUDGE,
BANGALORE CITY, BANGALORE AS BAD UNDER LAW,
EXCESSIVE IN NATURE AND IMPROPER UNDER THE
CIRCUMSTANCES OF THE CASE AND ETC.,
THIS W.P. COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Heard the learned Counsel for the petitioner in regard to the admission of the matter.
2. The present petition is filed challenging the order passed by the learned Additional City Civil and Sessions Judge at Bangalore City (CCH.55) in Crl.Mis.901/2016 dated 12.2.2016. Petitioner is stated to be victim in crime No.198/2016, registered in Madiwala Police Station, Bangalore, for the offence punishable under Sections 506, 376, 109, 504 of IPC. The case on hand relates to alleged sexual assault stated to have been made on a victim aged about 33 years by Madhukar Angur who is the first accused in 3 the case. Smt.Priyanaka Angur, wife of first accused is accused No.3 in the said case. All the three accused have approached the learned Additional City Civil and Sessions Judge, CCH-55 Bangalore City, seeking bail. Regular bail is sought by first accused and anticipatory bail is sought by accused No.3. Prosecution has filed objections to the said bail application. An interim application had been filed on behalf of accused No.3- Priyanka Angur, seeking interim anticipatory bail till the disposal of the main bail application. In the meantime, an application was moved on behalf of victim requesting the Court to grant the following relief:
"WHEREFORE, it is most humbly prays that this Hon'ble Court be pleased to permit the applicant defacto Complainant to engage an advocate on her behalf and oppose the prayer for bail and interim bail as made by the petitioner and fetch justice to the victim in the interest of justice and equity."
3. After hearing the learned Counsel for the accused and the learned Counsel for the victim who had 4 filed an application as mentioned above and learned public prosecutor, the learned Judge has granted interim anticipatory bail to accused No.3 for a period of 10 days only vide order dated 12.2.2016. It is submitted by the learned Senior Counsel Sri.C.V. Nagesh that the said interim bail is extended till this date. Following is the operative portion of the order passed by the trial Court on 12.2.2016.
ORDER The Interim bail is granted to petitioner No.1 up to 10 days by giving an opportunity to the prosecution to file his objections if any on next date of hearing.
The petition filed by defacto-
complainant is partly allowed permitting only to assist the prosecution.
The Interim bail claimed for petitioner No.2 is disposed of as withdrawn.
The respondent police are hereby directed to release the accused/petitioner-1 on bail, in the event of her arrest being made or voluntarily appeared before them on executing her personal bond for Rs.1,00,000-00 (Rupees One lakh) with two solvent sureties.
5It is this order which is called in question on various grounds as set out in the petition.
4. The main grievance of the learned Counsel Shri Shyam Sundar M.S. representing the petitioner is that the learned Sessions Judge has not properly understood the contents of the application filed on behalf of victim and that an opportunity should have been given to the victim to engage a separate advocate to represent her in the said bail application. Reliance is placed on Sections 301 and 24(8) Cr.P.C. The same are reproduced below:
"301. 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 prosecutor 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 6 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."
"24 (1) xxxxxxxxx (8) The Central Government or the State Government may appoint, for the purpose of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor".
5. Learned Counsel for the petitioner has relied upon a decision of the High Court of Allahabad, Lucknow Bench, rendered in Criminal Miscellaneous No.3769/2013 and another decision in the case of Kunhiraman vs. State of Kerala, reported 2005(2) KLT
685. These decisions have been relied to impress upon the Court that the victim has an unqualified right to engage advocate of his or her choice irrespective of the fact that he or she can assist the prosecution in terms of Sections 24(8) & 301 of Cr.P.C.
7
6. Per contra, learned Senior Counsel Shri C.V.Nagesh appearing on behalf of respondent No.2 submits that this aspect of the matter has been very well dealt in the case of Sundeep Kumar Bafna VS. State of Maharashtra and another, reported in (2014)16 SCC 673 and another decision of this Court in the case of Dattaraj v. State of Karnataka and another, reported in 2003 Crl.L.J. 3212.
7. Notice of this Court is given to relevant para No.32 in the case of Sundeep Kumar referred supra and the same is reproduced as follows:
"32. The upshot of this analysis is that no vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is given to him but he must always bear in mind that while the prosecution must remain being robust and comprehensive and effective it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a private party can only assist the Public Prosecutor in 8 discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the trial so that his interests in the prosecution are not prejudiced or jeopardised. It seems to us that constant or even frequent interference in the prosecution should not be encouraged as it will have deleterious impact on its impartiality. If the Magistrate or Sessions Judge harbours the opinion that the prosecution is likely to fail, prudence would prompt that the complainant or informant or aggrieved party be given an informal hearing. Reverting to the case in hand, we are of the opinion that the complainant or informant or aggrieved party who is himself an accomplished criminal lawyer and who has been represented before us by the erudite Senior Counsel, was not possessed of any vested right of being heard as it is manifestly evident that the Court has not formed any opinion adverse to the prosecution. Whether the accused is to be granted bail is a matter which can adequately be argued by the State Counsel. We have, however, granted a full hearing to Mr Gopal Subramanium, Senior Advocate and have perused detailed written submission since we are alive to the impact that our opinion would have on a multitude of criminal trials."
8. After going through the record, it is seen that bail application is not yet finally disposed of. What ever 9 observation is made by the court is for the limited purpose of granting interim anticipatory bail to accused No.3. The observation made by the learned trial Judge is only for the limited purpose of granting bail and definitely it will not influence the court when bail affiliation is to be disposed of on merits. The trial judge, while granting regular bail or interim bail, has to make some observation about the materials placed on record, though not the judge is entitled to make a detailed analysis of the material as it is the case for bail.
9. The Hon'ble Apex Court has dealt with the locus standi of a victim to oppose the proceeding relating to the grant of bail. Hon'ble Apex Court has held that the prosecutor is always expected to remain in control of prosecution and the Counsel representing the private party can only assist the Public Prosecutor in discharging the responsibility. Of Course, an observation is also made by the Hon'ble Apex Court that 10 the complainant, or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the trial so that his interest in the prosecution are not prejudiced or jeoparadised.
10. Taking into consideration the clear law laid down by the Hon'ble Supreme Court in the case of Sundeep Kumar supra, this is not a fit case to admit the matter. Accordingly, the petition is dismissed as unfit for admission.
Sd/-
JUDGE Yn.