Punjab-Haryana High Court
Hukam Chand vs State Of Haryana And Anr. on 28 November, 1996
Equivalent citations: (1997)115PLR406
Author: S.C. Malte
Bench: S.C. Malte
JUDGMENT S.C. Malte, J.
1. This revision petition has been filed against the order by which the Addl. Session Judge, Kaithal has passed the order by which one R.C. Gugnani, Advocate appearing for the complainant was allowed to conduct the case under the supervision, guidance and control of the Public Prosecutor while the Public Prosecutor retaining control over the proceedings. The brief question would be whether such an order is in accordance with the provision of Sections 301 and 302 of the Criminal Procedure Code.
2. In order to appreciate the point involved in this case, it would be necessary to bear in mind that the appointment of a public prosecutor is made as per Section 24 of the Criminal Procedure Code. It provides that the State may appoint Public Prosecutor and one or more Additional Public Prosecutors for conducting the cases in the Court. In the context of point raised in this case, it is pertinent to note that clause 8 of Section 24 of the Criminal Procedure Code empowers the Government to appoint a practicing lawyer having not less than 10 years practice, as a special public prosecutor for the purpose of conducting a case or class of cases. This provision clearly indicates that in a given case in which it has become necessary to appoint a practising lawyer to conduct the case, the State has the authority to do so.
3. Section 301 of the Criminal Procedure Code provides that a private person may instruct a pleader to prosecute any person in the Court. In such a cases, the public prosecutor shall be in charge of the case and shall conduct the prosecution. The pleader instructed by the complainant or private person, is entitled to act under the direction of the public prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. In this case, the question arises as to what is the import of the term" act under the direction of the public prosecutor".
4. Counsel for the respondent has brought my attention to a case reported as Medichetty Ramakistiah and Ors. v. State of Andhra Pradesh, AIR 1959 Andhra Pradesh 659. In that case, their Lordships were interpreting the term 'act' used in Section 493 of the old Criminal Procedure Code. In that case, their Lordships took into consideration the provisions of Sections 27 and 492 of the old Criminal Procedure Code. In para 10 of the Judgment, their Lordships have observed that pleader thus appointed by a private person may act in the case subject to over-all supervision of the public prosecutor, and conduct examination, cross-examination and re-examination of the witnesses, and also address arguments to the Court. That was a ruling under the old Code. It may be noted in Section 301 of the present Criminal Procedure Code, the pleader so instructed can submit only written arguments, and that too if the Court permits to do so. This provision obviously make it quite clear that conduct of the case should be, nonetheless, in the hands of a Public Prosecutor incharge of the case. My attention was also invited to a case reported as Roop Kishori v. State, AIR 1967 Punjab 42. In that case the old provisions of the Code were under consideration. It as observed therein that the private person can examine the witnesses while acting under the guidance of the public Prosecutor. These rulings now deserves to be considered in the light of the present provisions.
5. As indicated above, the appointment of a public prosecutor is under Section 24 of the Criminal Procedure Code. It may also be recalled that a specially public prosecutor can be appointed for conducting the particular case or cases, as per clause of Section 24 of the Criminal Procedure Code. It means that whenever there is such need, a special public prosecutor can be appointed. Section 301 of the Criminal Procedure Code in clear words states that a public prosecutor shall be in-charge of the conduct of the prosecution. The private pleader is supposed to act under the directions of the public prosecutor. His role is also limited. Even in respect of the submissions of arguments, he can do so by submitting written arguments with the permission of the Court. The provision of Section 302 of the Criminal. Procedure Code also deserves attention in this context. It empowers the Magistrate to permit prosecution to be conducted by any person other than the Police Officer not below the rank of Inspector. That Section lay further emphasis that 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. These provisions are relevant to our purpose. It clearly shows that case shall be conducted by the Public Prosecutor. The question then would be, what the term of conduct of the prosecution means. Conduct of the case involves the leading of evidence, oral and documentary and addressing the Court by way of arguments. If that conduct is entrusted to a private person that would be in violation of the provisions of Section 301 and 302 of the Criminal Procedure Code. In this view, I am further fortified by the decision of this Court in Kuldip Singh v. State of Punjab, 1996 Cr.L.J. 1619. In that case similar position arose. Single Bench of this Court has observed that the conduct of the case shall be with the public prosecutor and the cross examination of the defence witnesses shall be done by the Public Prosecutor with the assistance of the counsel appointed by the Complainant.
6. In view of the legal position thus emerging, I allow this revision and direct that the lawyer appointed by the complainant or private person in this case shall act under the directions from the public prosecutor and may with the permission of the Court submit written arguments after the evidence is closed in the case. I further direct that the public prosecutor incharge of the case shall conduct the prosecution. Revision petition is disposed of accordingly.