Himachal Pradesh High Court
Sateesh Chander Kuthiala vs State Of Himachal Pradesh And Another on 26 October, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr. MMO No. 256 of 2015 Judgment reserved on: 27.10.2016 Date of decision : November 4th , 2016.
____________________________________________________________ Sateesh Chander Kuthiala .....Petitioner.
of Versus State of Himachal Pradesh and another.
rt .....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes For the Petitioner : Mr. K.D.Sood, Senior Advocate, with Mr. Dushyant Dadwal and Mr. Rajnish K. Lal, Advocates.
For the Respondents : Ms. Meenakshi Sharma and Mr. Rupinder Singh, Additional Advocate Generals, for respondent No.1.
Mr. Gautam Sood and Mr. Dheeraj K. Vashisht, Advocate, for respondent No.2.
Tarlok Singh Chauhan, Judge 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 ____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 2 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 of Gian Chand Kuthiala and copy of judgments dated 31.3.1998 passed by learned Additional District Judge, Shimla passed in Civil Appeal rt 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.
::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 3I 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 of 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 rt 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. ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 4
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 of 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 rt 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 ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 5 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 of 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 rt 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 ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 6 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 of 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 rt 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.::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 7
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;
of 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 rt 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 ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 8 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 of 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".
rt (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 ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 9 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 of under Article 136 of the Constitution was eloquently recognized especially to meet the pressing demands of justice.
(21).
rt 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:
::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 10(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 of 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 rt 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 ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 11 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 of complainant/respondent under Sections 301 and 302 Cr.P.C., which reads thus: rt "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:
::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 12"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 of prosecution on the basis of a permission granted under Section 302. A Public Prosecutor is not actuated by any personal interest in the case.
rt 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:-::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 13
"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 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 rt 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.
Xxx xxx xxx ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 14
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 of 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. rt 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 ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 15 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 of 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. rt 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 ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 16 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 cross-
examination 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 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 rt 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 ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 17 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 of 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." rt
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 ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 18 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 of and 311 Cr.P.C. was opposed by the petitioner by filing reply wherein number of preliminary objections had been raised including the rt 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 ::: Downloaded on - 15/04/2017 21:27:02 :::HCHP 19 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.
of November 4th, 2016.
rt (Tarlok Singh Chauhan)
(GR) Judge
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