Delhi District Court
S.P.Gupta vs State on 27 November, 2012
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
Crl. Revision No.119/12
S.P.Gupta
S/o Sh. Hari Ram
K115 Hauz Khas
New Delhi
....Revisionist
Vs.
1. State
2. VLS Finance Ltd.
2nd Floor, 13 Sant Nagar
East of Kailash
New Delhi
...... Respondents
Date of Institution : 18.05.2012
Reserved for order on : 17.11.2012
Order announced on: 27.11.2012
ORDER
The present revision u/s 397 Cr.PC has been preferred for setting aside the order dated 17.03.2012 passed by Sh Satish Kumar Arora, 2nd Link MM whereby the Ld.MM had S.P.Gupta Vs. The State C.R.No.119/12 Page No. 1 of 14 allowed the complainant as well as his counsel to assist the prosecution.
2. Briefly stated the facts for giving rise to this revision is that the complainant filed a complaint u/s 411 IPC against Sh Pradeep Dhingra, Financial Controller M/s. Sunair Hotels alleging that investigation wing of Income tax carried out search seizure and survey operation against M/s Sunair Hotels, its promoters and other associates and it came to knowledge that during Dec.2011 search was carried out at I78 Naraina Vihar belonging to Sh Pradeep Dhingra who was Financial Controller and Chartered Accountant of M/s Sunair Hotels Ltd and certain original documents and files were recovered which were stolen from the office of Department of Company Affairs. During investigation, Sh Pradeep Dhingra made statement that these documents and files were handed over to him by Sh S.P.Gupta for safe custody. FIR no.99/02 with PS Connaught Place was registered. The officials of Ministry of Finance, deptt of Company affairs clarified that these documents/files are not traceable. Petition was also moved before the Hon'ble High Court on 24.8.05 and while disposing the above petition, S.P.Gupta Vs. The State C.R.No.119/12 Page No. 2 of 14 Hon'ble Mr. Justice R.S.Sodhi directed the police to register FIR and proceed in accordance with law from the contents of this complaint prima facie offence u/s 380/411 IPC are made out. Accordingly case FIR no.315/05 u/s 380/411 IPC was registered in PS Naraina. Charge sheet was filed and cognizance was taken by the Ld. MM. On 17.3.2012 Ld. MM passed the impugned order allowing the complainant and his counsel to assist the prosecution. Feeling aggrieved by the said order, the revisionist preferred this present revision petition.
3. This revision was received by this court on 18.05.2012. Trial court record was summoned which was received and thereafter I have heard the arguments from the Ld. Counsel for the revisionist.
4. During the course of arguments, it has been submitted by the Ld. Counsel for the revisionist that the order passed by the Ld MM is bad in law as the Ld. MM has allowed the complainant to assist the prosecution without taking into consideration the law and erred in not holding that complainant has no locus standi to address the arguments as the same is S.P.Gupta Vs. The State C.R.No.119/12 Page No. 3 of 14 against the law. The stand of the complainant is only of a witness and he cannot conduct the trial. Ld. Counsel has drawn the attention on sec.301(2) . He relied upon case law Partap Chand Vs. Behari lal, 1955 Cri.L.J 1182, Thakur Ram & Ors Vs. The State of Bihar AIR 1966 SC 911, Santosh Kumar Bagla Vs. Govt. of NCT of Delhi 2009 (4) JCC 2976, Narsimha Rao Vs. State, 1997 JCC 501, Thakur Ram & Ors Vs The State of Bihar, AIR 1966 Supreme Court 911 (Pr.9), Babu Vs State of Kerala, 2006(3) JCC 2081, Praveen Malhotra Vs. State (Delhi) 1990(1) CC Cases 299 (HC), L.K.Jain Vs. State (NCT of Delhi), Manmohan Lal Sachdeva Vs. State, 79 (1999) DLT 734, Prabhu Dayal Vs. State, 1986 Cri.L.J 383. Ld. Counsel submitted that the order dated 17.3.2012 may kindly be set aside.
5. On the other hand, Ld.APP for the State as well as Ld. Counsel for the complainant have submitted that revisionist is trying to delay the trial and trying to use his influence to get the FIR closed u/s 321 Cr.PC. It is submitted that the locus standi of the complainant was challenged before the Ld. ACMM S.P.Gupta Vs. The State C.R.No.119/12 Page No. 4 of 14 Sh Manish Yaduvanshi in case FIR no.90/2000, 99/2002 and 148/2002 but rejected vide order dated 7.1.2012. It was again challenged by way of filing the revision against the said order dated 7.1.2012 but rejected vide order dated 17.4.2012 of Ld. ASJ Smt. Neena Krishna Bansal. It is submitted that the order dated 17.4.2012 has also been challenged in the Hon'ble High Court. It is submitted that the present revision may kindly be dismissed.
6. In consideration of the arguments advanced by the Ld. Counsel for the revisionist, Ld.APP for the State as well as complainant counsel, I have also perused the trial court file and the orders passed by the Ld. MM. It is admitted fact that the locus standi of the complainant was challenged before Sh Manish Yaduvanshi Ld. MM which was rejected vide order dated 7.1.2012 in FIR no.90/2000, 99/2002 and 148/2002. It is also admitted fact that order dated 7.1.2012 was challenged by the applicant M/s Sunair Hotels Ltd. in revision before the court of sessions which was rejected vide order dated 17.4.2012. I have gone through the order dated 17.4.2012 passed by Smt. Neena Krishna Bansal, Ld. ASJ.
S.P.Gupta Vs. The State C.R.No.119/12 Page No. 5 of 14
7. The main gist of the arguments of the Ld. Counsel is that complainant has no locus standi to argue before the Ld. Trial court. It was observed by Krishna Iyer J. in 'P.S.R. Sadhanantham V Arunachalam (1980) 3 SCC 141 that there is a spiritual sensitivity for our criminal justice system which approves of the view that a wrong done to anyone is a wrong done to oneself, although for pragmatic considerations the law leashes the right to initiate proceedings in some situations. Again, justice is functionally outraged not only when an innocent person is punished but also when a guilty criminal gets away with it stultifying the legal system. The deep concern of the law is to track down, try and punish the culprit, and if found not guilty, to acquit the accused".
8. I have perused the Judgments relied upon by the Ld. Counsel for the revisionist. In case Law AIR 366 SC 911 Thakur Ram Vs. State, it was stated that barring a few exceptions in criminal matters, they party who is treated as aggrieved party is the State which is a custodian of the social interests of the community at large and so it is for the State to S.P.Gupta Vs. The State C.R.No.119/12 Page No. 6 of 14 take all the steps necessary for bringing the person who has acted against the social interests of the community to book.
9. In case law 1997 JCC 501 Sh P.V. Narasimharao Vs. The State, it has been stated in head note that sec.301(2) - State case to be represented by Public Prosecutor or Assistant Public Prosecutor - Private party can instruct a pleader to prosecute any person in any court but he can only act under the direction of Public Prosecutor
10. In case Law 1984 CRI. L.J. 499 KK Narendran & M Fathima it is stated that S.302 Permission to private party to conduct prosecution - Factors to be considered.
11. In case law 1991 Cri.L.J.1774 it is stated that grant of - counsel for party applying for anticipatory bail has no right to be heard - He could brief the State counsel and it is only the State counsel who could be heard in opposition to the applications seeking anticipatory bail.
12. In case Shiv Kumar Vs. Hukum Chander, 92(2) S.P.Gupta Vs. The State C.R.No.119/12 Page No. 7 of 14 JCC (SC) 466 it was observed that in terms of section 301 Cr.PC, it is only the Public Prosecutor who is empowered to plead in the court without any written authority, if he is Incharge of the Case. Section limits the role of the counsel engaged by the private party to act under the directions of the public prosecution. Similar view has been taken in Babu Vs State of Kerala 84 Crl.J 99. In Anil Kumar Malik Vs. Delhi Administration, 1993 JCC 329 it was held that complainant has no right to be heard in a petition for grant of bail.
13. In case Law 2009 (4) JCC 2976 it is stated in head note that Sec.301 & 302 - the Magistrate can allow assistance of the complainant's counsel to the public prosecutor instead of permitting him to argue the matter himself - He may also if require file the written arguments.
14. Lord Denning in case of "Attorney General of the Gambia Vs. Pierra Sarr N Jie' observed that the words Person aggrieved are of vide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern S.P.Gupta Vs. The State C.R.No.119/12 Page No. 8 of 14 him.
15. In Law Reforms Commission (Australia) in its discussions in paper 4 on 'Access to CourtsI standing: Public Interest Suits", it was noted that the general rule is that anyone may commence proceedings and prosecute the Magistrates Court. Accepting the possibility of occasional abuse by the prosecuting agency not to prosecute a case for political reasons, the commission saw merit in retaining some right of a citizen to ventilate such a matter in the courts.
16. In case Law A.R. Antulay Versus Ramdas Sriniwas 1984 (1) Crimes 457 it is stated that this is a well recognized principle of criminal law in motion remains intact unless contra indicated by a statutory provision. The scheme under the code of criminal procedure clearly reveals that anyone who wants to give information of an offence may either approach the magistrate or the officer. In this context, it was thus concluded that the concept of locus standi of a complainant is a concept of foreign to criminal jurisprudence. S.P.Gupta Vs. The State C.R.No.119/12 Page No. 9 of 14
17. Section 301 Cr.PC reads that (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 incharge 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.
18. Section 302 Cr.PC reads that (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person, other than a police officer below the rank of Inspector, but no person, other than the Advocate General or Govt. 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 it he has taken part in the investigation into the offence with respect to which the accused is being S.P.Gupta Vs. The State C.R.No.119/12 Page No. 10 of 14 prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader.
19. In consideration of the above case law and spirit of sec.301 & 302 Cr.PC, I have perused the trial court record. It is admitted fact that the present case was registered on the complaint made by Sh. Harsh Allagh, Authorised Signatory of M/s VLS Finance Ltd. Since now FIR no.315/05 u/s 380/411/120B IPC has been registered, this case is being represented by State through Ld.APP. Ld.APP and complainant counsel submitted that Ld.ASJ vide order dated 17.4.2012 has passed an order in favour of complainant having locus to address the arguments in case FIR no. 90/2000. I have perused the said order and it is revealed that in that case, application u/s 321 Cr.PC was moved and hence as per order, complainant was entitled to be heard. As per submission of Ld. Counsel for the revisionist the said order is under challenge before the Hon'ble High Court. The present case in hand has not been clubbed yet with other FIRs and only application to this effect has been moved. In the lower court file, there is no such application moved on behalf of the State u/s 321 Cr.PC apprehending that S.P.Gupta Vs. The State C.R.No.119/12 Page No. 11 of 14 the case would be closed.
20. Keeping in view the present facts and circumstances and observations of the above case laws and spirit of section 301/302 Cr.PC, I am of the view that Prosecutors are really the ministers of justice whose job is none other than assisting the State in the administration of justice. They are not representative of any party. Their job is to assist the court by placing before the court all relevant aspects of the case. They are not there to see the innocents go to the gallows and culprits escape a conviction. No doubt that permission cannot at all be granted u/s 302 but in very exceptional circumstances permission can be granted. I have perused the impugned order dated 17.3.2012 passed by the Ld. MM which is reproduced hereinunder: 'FIR No.315/05 PS Crime Branch 17.03.2012 Present: Ld. APP for the State.
Both accused are present with Ld. Counsel, Sh. Gurpreet Singh.
Ld. Presiding Officer is on leave today.
Presence of Ld. Counsel for complainant is objected by Ld. Defence Counsel stating that Ld. Counsel for Complainant can not assist the case as the same is already being represented by Ld.APP for the State. S.P.Gupta Vs. The State C.R.No.119/12 Page No. 12 of 14 Heard. Disallowed. The complainant as well as his counsel can very well assist the prosecution in the present case.
Put up for purpose fixed on 26.05.2012.
(Satish Kumar Arora) 2nd Link M.M. 17.03.2012.'
21. In view of language of the above order dated 17.3.2012 which is under challenge, it is manifest that Ld. MM has granted permission to the complainant and his counsel that they can very well assist the prosecution in this case. In consideration of the observations of the case laws mentioned above there is only bar that the complainant/his counsel cannot be permitted to argue but at the same time it has also been observed that they can assist the prosecution.
22. In consideration of the language of the impugned order under challenge as well as observations of the case laws cited above, I am of the view that there is no illegality, infirmity or impropriety in the impugned order dated 17.03.2012 and the same is maintained. Resultantly, the revision filed by the revisionist is hereby dismissed.
S.P.Gupta Vs. The State C.R.No.119/12 Page No. 13 of 14
23. Parties are directed to appear before the Ld. Trial court on the date fixed i..e.1.12.2012.
24. TCR be sent back with the copy of this order and revision file be consigned to record room. Announced in the Open Court on 27.11.2012.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI S.P.Gupta Vs. The State C.R.No.119/12 Page No. 14 of 14