Patna High Court - Orders
Basudeo Yadav vs The State Of Bihar & Ors on 4 August, 2014
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No. 31516 of 2011
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Basudeo Yadav, son of Late Resham Yadav, resident of Village - Athaniya
Diyara, P.S. - Pirpainty, District - Bhagalpur (Informant)
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Paras Yadav
3. Gopi Yadav
Both Opp. Parties no. 2 and 3 sons of Late Ramowtar Yadav, residents
of Village - Athaniya Diyara, P.S. - Pirpainty, District - Bhagalpur.
.... .... Opposite Party/s
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Appearance:
For the Petitioner: None.
For the State: Mr. Jharkhandi Upadhyay, A.P.P.
For the Opposite Party nos. 2 & 3: None.
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL ORDER
4 04-08-2014No body appears on behalf of the petitioner.
The petitioner is aggrieved by the order dated 30.06.2010, passed by the learned Judicial Magistrate 1st Class, Bhagalpur in G.R. Case No. 1375 of 1992 arising out of Pirpainty P.S. Case No 119 of 1992, whereby the prayer made on behalf of the petitioner for holding an enquiry regarding his signature on a joint compromise petition and Vakalatnama has been rejected. The petitioner also assails the order dated 26.04.2011, passed by the learned 1st Additional Sessions Judge, Bhagalpur in Cr. Revision No. 311 of 2010, whereby the order passed by the learned Judicial Magistrate has been sustained.
The petitioner is the informant of Pirpainty P.S. Case No. 119 of 1992, instituted for the offences under Sections 143 Patna High Court Cr.Misc. No.31516 of 2011 (4) dt.04-08-2014 2/5 and 426 of the Indian Penal Code. It appears that after investigation, the chargesheet in the case was submitted, whereafter cognizance was taken under Sections 143 and 426 of the Indian Penal Code. The Opposite Parties 2 and 3, who are the accused persons of this case, were granted bail, but on account of their jumping the bail bonds, on 16.02.2000 their bail bonds were cancelled and warrants were issued.
Both the opposite parties appeared before the court concerned and prayed for bail on the strength of a joint compromise petition. However, the court did not grant bail to them on the ground that the intention of the opposite parties (accused persons) was considered to be for the purpose of delaying the whole process of trial.
It further appears that after such rejection of their bail petition, the accused persons (opposite parties) confessed their guilt before the learned trial court and gave their statement under Section 313 of the Code of Criminal Procedure. The trial court convicted the opposite parties for the offences under Sections 143 and 426 I.P.C. and sentenced them to undergo one month's simple imprisonment under both the counts, with the stipulation of the sentences to run concurrently and that also subject to the set-off. The petitioner, after having come to know about the earlier attempt, on the part of the opposite parties, to seek bail on the Patna High Court Cr.Misc. No.31516 of 2011 (4) dt.04-08-2014 3/5 ground of a forged compromise petition, filed an application under Section 340 of the Code of Criminal Procedure. No action appears to have been taken by the court below on such application initially, but later, such application was dismissed on 30.06.2010. The aforesaid order is one such order under challenge. This was revised against by the petitioner, but such an effort also came as a cropper. The revisional order also has been assailed in the present petition.
From a bare perusal of the order dated 30.06.2010, it appears that because it was a police case, the court below did not accede to the prayer of the petitioner on the ground that in a police case, only the State empowered advocates can conduct the case. Since the petitioner had engaged a private lawyer, therefore, the court below refused to accede to the request of the petitioner.
The revisional court, for almost the same reason, sustained the order of the learned Judicial Magistrate.
Section 301 of the Code of Criminal Procedure, 1974 provides for appearance of Public Prosecutor or Assistant Public Prosecutor in charge of a case to appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. The second clause of Section 301 further indicates that in case any private person instructs a pleader to prosecute any person in any Court, such pleader so instructed shall Patna High Court Cr.Misc. No.31516 of 2011 (4) dt.04-08-2014 4/5 act under the directions of either the Public Prosecutor or the Assistant Public Prosecutor, and he may, with the permission of the Court, submit a written argument after the evidence is closed in the case.
From a bare reading of Section 301 Cr.P.C. and similar provisions with respect to sessions triable cases under Section 225 Cr.P.C., it would appear that the responsibility of conducting the case, on behalf of the prosecution, is primarily that of the State. However, it does not completely preclude the aggrieved person to engage a private counsel to contest on his or her behalf. The mandate of the Code does not permit of restricting a privately engaged lawyer from appearing on behalf of the aggrieved parties. Such proposition has been explained in several cases by this Court as well as the Apex Court. The right to be defended is one of the basic rights in any criminal trial and no body, without any sufficient cause, can be divested of such a right.
The ground taken by the learned Judicial Magistrate as well as the learned revisional court in refusing to allow the petitioner to be represented through a private lawyer is not sustainable in the eyes of law. However, considering the nature of the case and the circumstance, namely, the conviction of the opposite parties 2 and 3 by the court below, this Court is of the opinion that the petitioner is not justified or legally entitled to raise Patna High Court Cr.Misc. No.31516 of 2011 (4) dt.04-08-2014 5/5 such issue with respect to any act having been committed prior to the conviction of the opposite parties no. 2 and 3. The prayer for bail was made by the opposite parties 2 and 3, after their bail bonds were cancelled, on the basis of a joint compromise petition, which, in the estimation of the petitioner, was a forged compromise petition. However, such application was never acted upon and the court below, in its wisdom, chose not to release the opposite parties 2 and 3 on bail. However, later, on their confessing guilt before the court, considering the offence to be one which would be tried as a summons case, conviction was recorded sentencing the opposite parties 2 and 3 for the offences under Sections 143 and 426 I.P.C.
In that view of the matter, no useful purpose would be served in allowing this application or keeping this proceeding pending. In view of the aforesaid premised reasons, this Court is not inclined to interfere with the orders impugned.
The application stands dismissed.
(Ashutosh Kumar, J) Dilip.
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