Bombay High Court
Asaram Dadarao Giram vs The State Of Maharashtra And Ors. on 27 March, 1995
Equivalent citations: 1995(2)ALT(CRI)21, 1995(3)BOMCR486, (1995)97BOMLR298
JUDGMENT A.D. Mane, J.
1. The petitioner met with an accident on May 21, 1988. On the next day - May 22, 1988, a police constable attached to City Police Station, Beed, recorded the statement of the petitioner in the hospital. On the basis of the said statement, crime came to be registered at C.R. No. 161 of 1988 for offences under sections 279 & 377 of Indian Penal Code. That crime was entrusted to police head constable B. No. 473 for investigation. It appears that charge-sheet could not be filed till October 22, 1988.
2. On June 13, 1988 the petitioner was discharged from the hospital. He came to know that the police did not investigate the matter and, therefore, he on his own filed his private complaint before the Judicial Magistrate, First Class, Beed on November 11, 1988. The Magistrate called for report of the police under section 202, Code of Criminal Procedure and on receipt of the report issued process as against respondent No. 3-Tukaram Kale on May 6, 1989. In the meanwhile, police also filed chargesheet on October 22, 1988 against respondent No. 3 - Tukaram Kale.
3. Both the petitioner as well as on behalf of the prosecution applications came to be filed at Exhibits 22 and 23 respectively for impleading one S.J. Bhadiya as co-accused in the police case, under the provisions of section 319, Criminal Procedure Code. Those applications were granted on November 25, 1992.
4. The case instituted on police report being Criminal Case No. 1245 of 1988 was proceeded with. The petitioner, however, filed his application at Exh. 32-D, inter alia, seeking leave from the Court to allow his Advocate Shri Newade to conduct for and on behalf of the prosecution. The learned Chief Judicial Magistrate, by his impugned order dated January 18, 1993 granted permission to conduct the prosecution under the direction of the Additional Public Prosecutor as provided under section 302 of the Code of Criminal Procedure.
5. The learned Counsel for the petitioner submits that the learned Chief Judicial Magistrate gave his reasons separately recorded on March 20, 1993 in respect of the impugned order.
6. Now, the question arises whether in a prosecution started on police report under section 173 Cr.P.C. the complainant - injured person moving an application under section 302, Cr.P.C. has absolute right to conduct the prosecution by his own advocate instead of the Assistant Public Prosecutor.
7. Section 25 of the Code of Criminal Procedure provides that the State Government shall appoint one or more Assistant Public Prosecutors for conducting prosecution cases in every district before the Courts of Magistrates. Under section 302(1), Cr.P.C., the 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. It is implicit that a police officer, who is not below the rank of Inspector or who has not taken any part in the investigation into the offence is eligible for being appointed as Assistant Public Prosecutor where no Assistant Public Prosecutor is available. The discretion which is given to a Magistrate to permit the prosecution to be conducted by any other person than a police officer below the rank of Inspector should be exercised by the Magistrate so as to see that a State case is properly conducted. Section 301 of the Code of Criminal Procedure, however, requires 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 inquiry, trial or appeal. Sub-section (2) of section 301 of Cr.P.C. further provides that if in any case any private person instructs a pleader to prosecute any person in a 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. It is, therefore, clear that a private person does not enjoy an absolute right to prosecute any person in any Court in place of the Public Prosecutor or Assistant Public Prosecutor and the Court also does not enjoy with such power to permit any private person in any such case to prosecute any person in the Court by a pleader other than the Public Prosecutor or Assistant Public Prosecutor. A slender safeguard is, however, provided to a private person to avail services of an advocate of his choice but the advocate so appointed by the private party can, with the permission of the Court, only submit the written arguments after the evidence is closed in the case or assist the Public Prosecutor or Assistant Public Prosecutor with the permission of the Court. There is, therefore, no scope for going behind the provisions that such an advocate could also address the Court orally or dispense with the services of the Public Prosecutor or Assistant Public Prosecutor, as the case may be.
8. It is thus clear that the Law Officers of the Government mentioned in the provisions of section 301 or section 302 read with section 25, Code of Criminal Procedure have the right to conduct the prosecution. Therefore, when the Magistrate has acted under the proviso contained in sub-section (2) of section 301, Cr.P.C. it cannot be said that the order calls for any interference under section 482, Cr.P.C. The learned trial Magistrate was correct in his approach only permitting the advocate of the complainant to assist the Assistant Public Prosecutor or to file his written arguments as provided under sub-section (2) of section 301, Cr.P.C.
9. The application, therefore, fails. Rule is discharged.