Gujarat High Court
Rubabbuddin vs Amitbhai on 3 September, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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CR.RA/444/2010 2/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 444 of 2010
=========================================================
RUBABBUDDIN
SHEIKH - Applicant(s)
Versus
AMITBHAI
ANILCHANDRA SHAH & 1 - Respondent(s)
=========================================================
Appearance
:
MR
MUKUL SINHA for
Applicant(s) : 1,
MR ND NANAVATY, SR ADVOCATE WITH MR MITESH AMIN
for Respondent(s) : 1,
MR YN RAVANI for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 03/09/2010
ORAL
ORDER
Petitioner had vide exh.15 in Criminal Misc. Application No. 137/2010 made following prayer :
(A) The Hon'ble Court be pleased to permit present applicant as party opponent in the above Miscellaneous Criminal Application of regular bail of Shri Amit Shah and further be hear the applicant objection for grant of bail to Shri Amit Shah.
Criminal Misc. Application No. 137/2010 has been filed by respondent no.1 seeking bail from the Sessions Court. In such bail application, petitioner herein sought audience of the Court. He seeks to oppose the bail application.
It is not in dispute that applicant had approached the Apex Court complaining about alleged fake encounter death of his brother and brother's wife. It is not in dispute that on the said petition, Apex Court directed further investigation and later on transfer of investigation to CBI. It is in connection with said case that respondent no.1 has been arrested and is in custody. He has applied for bail which the petitioner wishes to oppose.
Though in application exh.15 petitioner has prayed for permission to be joined as party in the bail application of respondent no.1, counsel for the petitioner at the outset stated that petitioner would be satisfied if he is permitted to address the Court opposing the bail application as intervenor.
Appearing for the petitioner, learned counsel Shri Mukul Sinha contended that the petitioner should be treated as complainant. He is also a victim. He was therefore, entitled to oppose the bail application. He drew my attention to order passed in Criminal Misc. Application No.13775/2007 dated 25.9.2008 wherein the present petitioner was allowed an audience by this Court in the bail applications filed by co-accused. He referred to several provisions of Code of Criminal Procedure and contended that the petitioner's prayer should have been granted. He relied on decision of the Apex Court in case of Sheo Nandan Paswan v. State of Bihar and others reported in AIR 1987 Supreme Court 877, wherein the Apex Court had recognized right of the complainant to oppose an application under Section 321 of Code of Criminal Procedure for withdrawing from prosecution.
5.1 He also relied on decision in case of Brij Nandan Jaiswal v. Munna Alias Munna Jaiswal and another reported in (2009)1 Supreme Court Cases 678, wherein Apex Court held and observed that complainant can always question order of granting bail if said order is not validly passed.
On the other hand learned senior counsel Shri N.D Nanavati appearing for respondent no.1 opposed the petition and contended that petitioner has not made out any grounds for being permitted to be joined in bail application. He contended that CBI is in charge of the investigation and is opposing the bail. Petitioner would have no right to audience.
6.1 Reliance was placed on decision of Learned Single Judge of Delhi High Court in case of Pravin Malhotra v. State of Delhi reported in 1990 Law Suit (Del) 55, wherein such an issue came up for consideration.
6.2 Reliance was also placed on decision of Learned Single Judge of this Court in case of B.M. Gupta v. Ashok Chandulal Bhatt and ors. reported in 2002(4) GLR 3760, wherein Learned Single Judge of this Court observed that Public Prosecutor would be in charge of the trial even before the stage of framing the charge.
6.3 Reliance was also placed on decision in case of Patel Varyabhai Jesangdas v. State of Gujarat reported in 1985 Law Suit(Guj) 137, wherein Learned Single Judge of this Court observed that under Section 301(2) of the Code of Criminal Procedure, complainant would not have the right to be heard and to make oral submissions by way of arguments.
Counsel for the CBI did not raise any serious objection to the petitioner being intervenor without being joined as respondent.
Having thus heard learned advocates for the parties, it is undoubtedly true that it was at the instance of the present petitioner that Supreme Court directed further investigation and thereafter transferred the investigation to CBI. Short question is would the petitioner have a right of audience before the Sessions Court hearing the bail application of respondent no.1?
No provision has been pointed out to me where even the complainant can have right of audience opposing a bail application of the accused. Various provisions of Code of Criminal Procedure to which reference was made from advocates on both sides go to show one thing that it is the State which is in control and in charge of criminal prosecution at all stages. Such control is to be exercised through Public Prosecutor or Special Public Prosecutor as the case may be. No statutory provision permits the complainant to either be joined as party respondent or even have a direct audience for opposing the bail application. This is precisely what was held by the Learned Single Judge of Delhi High Court in Pravin Malhotra(supra) making following observations :
14.
There can be no doubt that to secure the ends of justice the High Court in exercise of power under Section 482 can take assistance from any person. But it does not mean that any such third person has a right to intervene in the manner claimed in this application.
It is of-course true that said decision was rendered in context of several women organization seeking an audience opposing bail application of bride burning.
Section 301 of the Code of Criminal Procedure in particular pertains appearance by Public Prosecutor and reads as follows :
301Appearance 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."
Sub-section(32) as can be seen gives limited right of participation to a private person but such participation is necessarily through Public Prosecutor.
Section 24(8) of the Code of Criminal Procedure in amended form also though gives discretion of the Court to permit the victim to engage advocate of his choice, same is for the purpose of assisting Public Prosecutor and for no other purpose.
Strictly speaking therefore, petitioner had no right to insist on being joined as party respondent in the bail application or even to have direct audience before the Court. Counsel for the petitioner contended that these provisions pertain to conduct of the trial and not pre-trial stage. These provisions are however, referred for the purpose of pointing out that it is the State which is in charge of investigation and trial of a criminal case instituted on a police complaint.
Situation may perhaps be somewhat different insofar as High Court is concerned, since in exercise of inherent powers under Section 482 of the Code of Criminal Procedure, in a given case, High Court may entertain such a request if facts so warrant. To this limited extent I have my reservations about the ultimate conclusion of Learned Single Judge of Delhi High Court in case of Pravin Malhotra(supra). This however is a case pertaining to Sessions Court hearing the bail application and in that respect I find that there is no provision under the Code of Criminal Procedure to permit direct audience to the petitioner.
I however, find that in the impugned order itself learned Judge has observed that :
As per the provisions of Cr.P.C. he is only having a right to assist the Public Prosecutor in the interest of justice and he may submit his written arguments through the Public Prosecutor. However, if he wants to apply for the assistance of the Public Prosecutor,he may apply in accordance with the law and if he wants to submit his written arguments through the Public Prosecutor, he has to apply accordingly and thus, he has no locus standi to be joined as an opponent in the present application and hence, the following operative order.
Learned counsel for respondent no.1 also did not seriously oppose the petitioner assisting the Special Public Prosecutor.
In facts of the case, I am of the opinion that though petitioner may not have direct audience before the Sessions Court in the bail application, it should be left open to him to present before the learned Sessions Court written arguments and relevant documents if he so desires; of-course that too through Public Prosecutor in charge of the bail application. For this purpose he should not be made to file fresh application as has been indicated by the Sessions Court. By moulding the relief such prayer should be granted in this proceeding itself.
In the result, though request of the petitioner for direct audience before the Sessions Court is not granted, it would be open for the petitioner to file written arguments including documents if he so desires through Public Prosecutor which would be taken into account by the learned Judge while disposing of the bail application of respondent no.1.
Petition is disposed of accordingly.
(Akil Kureshi,J.) (raghu) Top