Delhi District Court
M/S Sunair Hotels Ltd vs State on 17 April, 2012
1
IN THE COURT OF MS. NEENA BANSAL KRISHNA
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CR No.07/12
M/s Sunair Hotels Ltd.
Office at 302,
Akash Deep Bldg,
26 K.G. Marg,
New Delhi .....Applicant
versus
1.State
through Standing Counsel
2.Ministry of Home Affairs,
Government of India,
North Block, New Delhi.
3.Home( Police) Department
Govt. of NCT of Delhi
5th Level 'C' Wingh,Delhi Secretariat
I.P. Estate, New Delhi.
4.Home( General)Department
Govt. of NCT of Delhi
5th Level 'C' Wingh,Delhi Secretariat
I.P. Estate, New Delhi.
5.The Director of Prosecution
Govt. of NCT of Delhi
Page No. 1 of 12
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Tis Hazari Courts, Delhi. ......... Respondents
Date of institution of the petition : 02.02.2012
Date of reserving judgment/order : 04.04.2012
Date of Order/ judgment : 17.04.2012
ORDER:
1. Vide this order, I shall be disposing of the application dated 17.02.2012 moved on behalf of the revisionist challenging the right of the complainant to be heard on the application under section 321 Cr.P.C. moved by the prosecution or for the withdrawal of such application under section 321 Cr.P.C.
2. Ld. Counsel on behalf of the revisionist has submitted that on the complaint of the complainant the FIR No.90/2000, PS Connaught Place had been registered against the revisionist and the charge sheet had been filed on completion of investigations.
3. During the pendency of the trial an application under Section 321 Cr.P.C dated 24.11.2011 was moved by the Ld. Addl. PP for withdrawal of prosecution. However, vide subsequent application dated 16.12.2011, the Ld. Addl. PP sought withdrawal of the earlier application under Section 321 Cr.P.C, which was allowed by the Ld. ACMM vide his Order dated 07.01.2012.
Page No. 2 of 12 3 Aggrieved by the said Order, the present revision has been filed.
4. A preliminary issue has been raised by the revisionist that this was a State case in which the State was the Prosecuting Agency and that the complainant has no locus standi of being heard. Any submissions to be made in regard to withdrawal or non-withdrawal of the prosecution are to be made only by Ld. Addl. PP and complainant cannot be heard in this regard.
5. It was argued that under Section 301 Cr.P.C which pertains to any Court, it is the Prosecutor or the Assistant Prosecutor, who is the In-Charge of case who can plead. Likewise under Section 302 Cr.P.C. in the trial before the Magistrate, no person other than the Government Advocate or Public Prosecutor or Assistant Public Prosecutor is entitled to prosecute the case except with the permission of the Court. Permission is required for any other person to be able to prosecute the case before the Magistrate. It was thus argued that the complainant in the present case has no locus to address the arguments in this revision. Further more, Section 225 of Cr.P.C clearly provides that every Trial before the Court of Sessions shall be conducted by a Public Prosecutor Section 248 Cr.P.C also provides that the State or the Central Government may appoint the Special PP and that Page No. 3 of 12 4 the Court may permit any victim to engage an advocate but only to assist the prosecution.
6. It was thus argued that the complainant cannot be permitted to address the arguments in the present revision.
7. Ld. Addl. PP for State has argued that Section 401 of Cr.P.C provides that no Order shall be made to the prejudice of the accused or any other person unless he has an opportunity of being heard.
8. Section 357 Cr.P.C also gives a locus to a victim of fraud to be heard for grant of compensation.
9. Also the Ld. MM vide his Order dated 26.03.2009 had permitted the complainant to address the arguments and unless prejudice is shown, the complainant can always assist the prosecution for addressing argument in the present revision.
10. Ld. Counsel on behalf of the complainant has argued that there is no provision specifically excluding the complainant from addressing the arguments. It is submitted that it is the right of complainant which is getting prejudiced in case the Page No. 4 of 12 5 prosecution is allowed to withdraw the present case and thus he, the complainant, has a right to be heard.
11. I have heard the arguments and have also perused the record. The short point for determination is whether the complainant, on whose complaint FIR has been registered, has a locus to be heard, in the present revision which has emanated from the Order of Ld. M.M disposing of the application moved by the State in regard to the withdrawal of the case by the prosecution.
12. The facts in brief are that FIR No.90/2000 was registered under Section 406/420/467/468/471/47A read with Section 120B of IPC and after the investigations were concluded the charge sheet was filed in the year 2003. Since then, the matter is pending and the charge is yet to be framed. The application for withdrawal of prosecution was moved by Ld. Addl. PP on 14.11.2011 but same was sought to be withdrawn by application dated 16.12.2011 which has been allowed by Ld. MM. The revisionist aggrieved by the said order, had filed the present revision. The complainant put in their appearance and has sought to contest the present revision.
13. The one issue raised by the complainant in his Page No. 5 of 12 6 fundamental right of access to justice which is enshrined in Article 21 of the Constitution of India,1950.
14. Access to justice to every bonafide seeker is a democratic dimension of remedial jurisprudence.
15. It was observed by Krishna Iyer, J. in " P.S.R. Sadhanantham v. Arunachalam (1980) 3 SCC 141" as under:
" 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" .
16. The first main argument addressed on behalf of the accused/revisionist was that the Public Prosecutor is entrusted with the task of conducting the case with objectivity and fairness and it is no part of his duty to obtain the conviction at all costs. If the complainants were permitted to address the argument, then, they would settle their personal scores and personal vendetta, which is not the object of criminal law.
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17. For this Ld. Counsel for the complainant has relied upon the case " Thakur Ram Vs. State AIR 366 SC 911" wherein it was noted that barring a few exceptions in criminal matters, the party who is treated as aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community, to book.
18. It was further argued that in a case which has proceeded on a police report, private party has really no locus standi. The criminal law is not to be used as an instrument of wrecking private vendetta by an aggrieved party against the person who according to that party has caused injury to it. Also in the case of " P.V. Narsimha Rao v. State 97 JCC 501 (Delhi High Court)" and " L.K. Jain v. State 2001 Criminal Law Journal 259 Delhi High Court" . The Ld. Counsel has also relied upon the observations made by the Hon'ble Supreme Court of India in the matter of Shiv Kumar v. Hukum Chander 92(2) JCC (SC) 466 wherein it was noted that in terms of Section 301 Cr.P.C, it is only the Public Prosecutor who is empowered to plead in the Court without any written authority, if he is In-Charge of the case. Section limits the role of the counsel engaged by the private party to act under the directions of the Page No. 7 of 12 8 Public Prosecutor.
19. Similar observations were made in the case of Babu v. State of Kerala 84 Cr.P.C Criminal Law Journal 99 (Kerala High Court). The concern which has been voiced by the Ld. Counsel for permitting the private party to address the court, is that they may seek private vengeance and try to obtain conviction by hook or crook.
20. This concern finds expression in the views of Professor Sh. S.A. De Smith, who had noted all developed legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest. The desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the Courts in matter that do not concern him.
21. Lord Denning in the case of " Attorney General of the Gambia v. 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 him.
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22. The answer to the concerns raised by the accused/revisionist of prevent individuals wrecking private vengeance on the accused, has been answer by the Law Reforms Commission (Australia) in its discussion in paper no.4 on " Access to Courts- I standing: Public Interest Suits" . It was noted that the general rule is that anyone may commence proceedings and prosecute in the Magistrate's 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.
23. In the case of " A.R. Antulay v. Ramdas Sriniwas 84(1) Crimes 457" it was observed that the principle that anyone can set or put the criminal put the 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 foreign to criminal jurisprudence.
24. This bring this to the core question which is whether the complainant in the present case can be allowed to address the argument, in a matter with regard to the withdrawal of the case by the prosecution Page No. 9 of 12 10 under Section 321 Cr.P.C.
25. In this context, it would be pertinent to refer to the case of " Bhagwan Singh v. Commissioner of Police and Ors. 1985 (25) SC cases 537" where in a final report had been submitted under Section 173 Cr.P.C. by concluding that investigations in regard to un-natural death of Gurvinder Kaur, led to the conclusion that no offence appears to have been committed. In this context the question arose whether before accepting the closure, notice to complainant was necessarily required to be issued.
26. Sh. P.N. Bhagwati J, after making the reference to Section 190 Cr.P.C noted that if the Magistrate decides to take cognizance of an offence and to issue process, the informant is not prejudicially affected nor is the relative of deceased/injured aggrieved because it is decided by Magistrate to proceed further. However, if the Magistrate decides to close the proceedings, the informant would certainly be prejudiced because the FIR lodged by him would have failed in its purpose, wholly or in part. Therefore, when Magistrate is not inclined to take cognizance of the offence, the informant must be given an opportunity of being heard.
27. It was further noted that if the injured or the person aggrieved Page No. 10 of 12 11 does not happen to be the informant on whose statement the First Information Report is registered, then such aggrieved person though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of report, if he otherwise comes to know that the matter was being heard by the Magistrate.
28. The facts of present case are akin to the situation visualized in the case of Bhagwan Singh ( Supra). Here though the charge sheet has been filed by the prosecution on which cognizance had been taken by the Ld. MM but subsequently, an application has been moved on behalf of the prosecution under Section 321 Cr.P.C for withdrawal of the case and thereafter another application was moved for withdrawal of this application under Section 321 Cr.P.C.
29. The consequence of application under Section 321 Cr.P.C is that the case would be closed which means that the informant/aggrieved would be deprived of right of an opportunity to see that the information given by them on the basis of which First Information Report was registered, reached to its logical end. On the same principle which is applicable to the closure of the case, the informant is entitled to notice of being heard while the aggrieved has locus to appear on its own and address argument in such cases.
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30. The two cases of L.K. Jain( supra) and Thakur Ram( supra )relied upon by the accused are clearly not applicable to the present facts in so much as these cases deal with the right of the informant/aggrieved to address the court in the prosecution of the cases which in fact, is the function of the prosecution and do not deal with the right of the complainant/aggrieved of being heard in cases which are sought to be closed or in which prosecution is sought to be withdrawn .
31. It is, therefore, held that the complainants have a locus to address the argument in the present revision, more so when he was permitted to be heard before the ld. M.M.
31. The application is accordingly decided.
Announced in the open Court on this 17.04.2012 (Neena Bansal Krishna) ASJ-01/PHC/New Delhi Page No. 12 of 12