Andhra Pradesh High Court - Amravati
Y Vishnu Vardan Reddy And 8 Others vs The State Of A.P., Rep By P.P Another on 3 May, 2024
APHC010136852017
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3330]
(Special Original Jurisdiction)
FRIDAY ,THE THIRD DAY OF MAY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CRIMINAL PETITION NO: 8138/2017
Between:
Y Vishnu Vardan Reddy And 8 Others and ...Petitioner/Accused
Petitioner/Accused(s)
Others
AND
The State Of A P Rep By P P Another ...Respondent/Complainant
Respondent/Complainant(s)
and Others
Counsel for the Petitioner/accused(S):
1. KARRI MURALI KRISHNA
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
ORDER:
The subject Criminal Petition is submitted to this Court to quash the order dated 13.06.2017 in Criminal M.P. No.36 of 2017 in S.C. No.364 of 2011, wherein the learned Assistant Sessions Judge, Proddaturu, allowed the application filed by the Respondent/complainant to receive the documents to prove relevance and compliance of Section 65B(4) of the Indian Evidence Act.
22. On perusal of the impugned order, the petition was filed under Sections 231 and 311 r/w Sec. 294 and 2(wa) of Cr.P.C. for condoning the delay to receive the documents filed along with the petition on the ground that the documents would help to establish the motive and intention of the accused in commission of the offence and it will prove the role of the others who helped the accused and the police have not produced any material evidence along with the charge sheet though they have knowledge about truth of the case and intention of the accused and therefore the burden heavily lies on the respondent/complainant to prove her chief examination in support of the evidence as well as the documents filed along with the petition are essential to substantiate the version of the defacto-complainant herein after called as victim in the chief examination.
3. The counter affidavit was filed by the accused Nos.2 to 10 in Crl.M.P., denying the most of the averments and contended that the respondent/victim has no locus standi to file the documents, there is no authority to any person to collect and produce schedule records after filing charge sheet and that too after commencement of trial and the documents filed by the 2nd respondent/victim are no way concerned with the present case.
4. Learned Assistant Sessions Judge after considering the rivalry claims of both the respondent/victim and the petitioners/accused allowed the application subject to proof and relevancy inter alia observing that the said documents are relevant documents in the case and in order to give an opportunity to the parties to prove their respective versions.
5. The said order was assailed in the present Criminal petition on the ground that the victim cannot file an application to receive the documents and the learned Assistant Sessions Judge has erroneously allowed the petition filed to receive the documents and relied on the provisions of 3 Section 225 of Criminal Procedure Code which is extracted and reads thus:
Trial to be conducted by Public Prosecutor in every trial before the Court of Sessions, and also relied on Section 301 of Criminal Procedure Code, which speaks that 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 enquiry, trial or appeal. It is canvassed by the counsel for the petitioners that the prosecution can only file an application to receive the documents and the victim cannot file such application as per the aforementioned provisions and in support of his contention, relied on the judgment of the Hon'ble Apex Court in Shiv Kumar v. Hukam Chand and another for the proposition that the provision 301 is made to have the case against the accused is prosecuted only by the Public Prosecutor and not by any counsel engaged by any aggrieved private party. And also relied on the judgment of Hon'ble Apex Court in Dhariwal Industries Limited v. KishoreWadhwani and others for the very same proposition and also relied on the judgment of the Criminal Petition No.7018 of 2017 wherein, the common High Court has allowed an application filed by the victim to engage the private advocate to conduct prosecution. The said order in Criminal Petition No.7108 of 2017, was assailed in the Criminal Petition and Hon'ble Apex Court set aside the order in Petition(s) for Special Leave to Appeal (Crl) No.(s) 2240 of 2018, dated 14.05.2018 and also contended that the prosecution has filed application through the Public Prosecutor to receive the same documents and the said application was allowed by the jurisdictional Court and the same was assailed before the common High Court in Criminal Revision 4 Case No.9929 of 2016 and the order has been set aside by the high Court vide order dated 25.10.2016. While setting aside the order, this Court has observed i.e. left open to 2 nd respondent/ defacto-complainant to take necessary steps. The application filed under Section 311 Cr.P.C. was set aside by this court on the ground that the documents that were filed along with the petitioner were not filed along with the charge sheet and the copies were not served to the other side.
6. Heard learned counsel for the petitioner and learned Public Prosecutor for the respondents.
7. At the outset it is the contention of the counsel for the petitioners/accused that the respondent/victim cannot file any documents in the Court personally and the same has to be filed through the Public Prosecutor who is the authority to prosecute the case against the accused / prosecution shall be conducted by a Public Prosecutor and the application filed by the prosecution was dismissed by the high court and the victim cannot file the present application to receive the documents and prayed to allow the criminal petition.
8. The definition of "victim" as found in Section 2(wa) Cr.P.C. 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. "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 5 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.
10. A division bench of the Allahabad High court in Suneel Kumar Singh vs State of U.P.1 has discussed the law on victim right to participate observing 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." on analysing Sections 24(8) and 301 of Criminal Procedure Code. The relevant portion of the judgment is hereby extracted:
In view of the aforesaid definition the 'end' for which a plan or project is carried out is called prosecution. In respect of proviso to Section 24(8) Cr.P.C. prosecution in respect of an offence begin with putting the law into motion by any individual or sufferer of crime. The 'end' in a prosecution within the meaning of proviso to sub-section 8 of section 24 Cr.P.C. would be adjudication of guilt of an offender who is charged with commission of an offence in accordance with procedure established by law in a court constituted under this code. So the prosecution starts with giving information of commission of crime and continued during investigation or inquiry, trial of offender and if any appeal is filed finally end by an order passed in appeal. This whole process is the part of fair trial 1 2019 SCC Online All 957 6 inbuilt in Article 21 of our Constitution. The word prosecution is also used in different sense in different situation. When word 'prosecution' is used in defining the parties to criminal case it is used for the party who is siding the victim. When it used in respect of an accused means pending proceeding to ascertain the guilt of the accused. When an offence is committed it certainly committed against the society but the sufferer is called victim. Victim has direct nexus with the damage caused to him but society may have a remote effect. The legislature for the first time insert provision for protection of the right of victim in the Criminal Procedure Code and specially keeping in view being the worst sufferer of crime. Thus, the victim should not be kept aloof from the judicial process in which the wrongdoers are undergoing the process of ascertainment of his guilt for wrong committed by him. In this judicial process, by means of amendment made by Act No.5 of 2008, the status of the victim has been improved from a silent expectator of proceeding before the court to a participant of the proceeding. Therefore the word used in the proviso added to Section 24(8) Cr.P.C. is to 'assist the prosecution' and not to assist the 'public prosecutor'. Therefore there is basic difference in between proviso to Section 24(8) and Section 301 Cr.P.C. It is true that section 301 Cr.P.C. has not been amended by Act No.5 of 2008 but if the principals of harmonies construction is applied while interpreting the different provision of same statute like proviso to section 24(8) and Section 301 Cr.P.C. , the letter and spirit inducted in proviso added to sub-Section 8 of Section 24 of the Cr.P.C. cannot be diluted by saying that no amendment has been incorporated in Section 301 Cr.P.C.7
11. The whole scheme if taken into consideration for prosecution and trial of an accused the dominant role is played by the public prosecutor but by insertion of proviso to Section 24(8)Cr.P.C. the Court is now authorised to permit the victim to engage a lawyer of his choice to assist the prosecution. The prosecution of an offender is virtually carried out in the court of law constituted under some statute presided over by a judge and not by any party to the proceedings. The public prosecutors, the advocate of the accused or special counsel appointed by the aggrieved person or the Advocate engaged by a victim, all are officers of the court. They all assist the court to arrive at truth during prosecution of an accused. Therefore in section 24 or in section 301 phrase 'with the permission of court' is used. So, once the permission is accorded to the Advocate of the victim to assist the prosecution his assistance could not be restricted to the terminology of Section 301,i.e. only to assist the prosecutor. The court in view of the same can permit to advance the oral argument too to the Advocate engaged by the victim apart from submission of the written argument. The importance of oral argument cannot be out weight by saying that right to written argument has been given in Section 301 Cr.P.C.
12. In Section 301 Cr.P.C there seems no previous permission to engage a private pleader by any private person even if he has no personal interest. The permission is required only if he intends to file the written argument. However in proviso to Section 24(8) Cr.P.C. permission is accorded to the Advocate of the choice of the victim to assist the prosecution and not to the public prosecutor.
13. Thus, from perusal of aforesaid object and reason of Amendment Act No. 5 of 2009, it is clear that prior to the above amendment, the victim of a crime has no role to perform in a criminal proceeding. Thus, with a view to provide active role to the victim in criminal proceeding, various 8 provisions inserted in the Code of Criminal Procedure. Therefore, after amendment of the Code of Criminal Procedure in the year 2009, scenario has changed and the victim can seek the permission of the Court to engage an Advocate of his/her choice to assist the prosecution. Section 24(8) of the Code of Criminal Procedure, prior to amendment gave power to the Central Government or the State Government to engage an Advocate as Special Public Prosecutor in a case or in a group of cases to conduct the prosecution. After the amendment, the Court has also been given power to permit the victim of the crime to engage an Advocate of his/her choice to assist the prosecution in any particular case or group of cases. Thus, in our view, if the court gives permission to the victim to engage an Advocate of his/her choice as per the aforesaid provision contained under the proviso to Section 24(8)of the Code of Criminal Procedure, such Advocates acquires the status of Special Public Prosecutor.
14. A full bench judgment of Punjab & Haryana High court in M/S. Tata Steel Ltd vs M/S. Atma Tube Products Ltd. & Ors reported in 2013 SCC Online P&H 5834 held that :
Whether a 'victim' under proviso to Section 372 CrPC includes the 'complainant' also and owing to its importance, was referred the following question to a larger Bench:-
"Whether the word "victim" as mentioned in the proviso of Section 372 CrPC include complainant also for the purpose of availing the remedy of appeal as given to the victim by aforesaid proviso?"
a 'victim' as defined in Section 2(wa) which includes his/her 'legal heirs' can be permitted by the Court under Section 24(8) to engage an Advocate of his/her choice to assist the prosecution and if he/she is aggrieved at the acquittal of an accused (except acquittal 9 in a case instituted on a complaint), the conviction of the accused for a lesser offence or the imposition of inadequate compensation on such accused, such 'victim' (including his/her legal heirs) have got a right under proviso to Section 372 to prefer an appeal to the Court to which an appeal ordinarily lies against the order of conviction of such Court;
15. Hon'ble Supreme Court has observed in paragraph 32 of Sandeep Kumar Bafna vs. State of Maharashtra and Anr2 that: 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 a 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."
16. In M/s JK International vs. State Government of NCT of Delhi3, 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:
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 2 2015 (3) SCC (CRI) 558 3 (2001) 3 SCC 462 10 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..."
17. The Hon'ble Supreme Court in Asha Ranjan v. State of Bihar4 it has been held that fair trial is a concept that keeps in its sweep interest of accused as well as of prosecution and the victim.
18. Therefore, the contention raised by the petitioner that the victim cannot file the documents in the Court except through public prosecutor is unsustainable and it's a threadbare and jejune contention and it is liable to be rejected in view of the aforesaid judgment of different high courts a victim can engage an Advocate of his/her choice to assist the prosecution and if he/she is aggrieved and can as well file an application to receive the documents.
19. When a question was posed to the learned counsel appearing for the petitioners what prejudice causes to the accused, if application filed by the victim, learned counsel put volt face.
20. In view of the supra discussion, the Criminal Petition is liable to be dismissed and resultantly it is dismissed.
21. For filing of such vexatious petition and causing delay the trial, this Court is imposing an amount of Rs.10,000/- towards cost to be payable by the petitioners/accused to the victim in the trial Court and the Court shall make all endeavour to collect the said amount from the petitioners/accused and to pay to the victim. If the accused fails to pay the costs as directed by this Court, the learned Judge would not hesitate to 4 (2017) 4 SCC 397 11 take the petitioners accused into judicial custody. The Court shall intimate the same to this Court on or before 15-July-2024.
22. Note: After pronouncement of Judgment in the open Court, learned counsel for the petitioners requested to delete the costs. This Court refused to do so. However, this Court reduces the cost from Rs.10,000/- to Rs.5,000/-.
As a sequel, miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed.
_________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 03.05.2024 Harin 12 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO 2 CRIMINAL PETITION No. 8138 OF 2017 Date: 03-05-2024 Harin