Bombay High Court
Hdfc Bank Ltd. And Anr. vs Nagpur District Security Guard Board ... on 18 October, 2007
Equivalent citations: 2008CRILJ995
Author: C.L. Pangarkar
Bench: C.L. Pangarkar
ORDER C.L. Pangarkar, J.
1. Rule. Heard finally with consent of parties.
2. By this application, the applicants challenge the order passed by the Judicial Magistrate (F.C.) whereby he allowed the application of the non-applicant No. 2 to assist the prosecution.
3. A few facts may be narrated as follows:
The applicants are accused in Criminal Complaint No. 3516 of 2006. The non-applicant No. 1 instituted this criminal complaint case before the Chief Judicial Magistrate under Rule 13 of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act 1981. It is alleged that the applicants/accused did not register itself as principal employer and has thus committed offence punishable under Rule 42 of the Rules. Non-applicant No. 2 moved an application in this private complaint case to assist the complainant. It appears that the non-applicant No. 2 was in the employment of the applicants/accused and his service have been terminated by the applicants. The main ground upon which he seeks to assist prosecution is that the applicants/accused are misleading the court and that needs to be taken care of. The complainant i.e. N.A. No. 1 gave no objection while the complainants/accused opposed the application. The application is granted by the court below by single line order and being aggrieved by that, this application is filed.
4. I have heard both the sides. Shri Mewar, learned Counsel for the applicants, submitted that there is no application of Sections 301 and 302 of Cr. P. Code, since this is a private complaint case. Sections 301 and 302 of Cr. P. Code read as follows.
301. Appearance by Public Prosecutors.- (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 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.
302. Permission to conduct Prosecution.- (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 Government 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 if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.
5. Firstly, this is not a case instituted upon a police report under Section 173 of Cr. P. Code but essentially a complaint case instituted under Section 200 of Cr. P. Code. The complaint case is not filed by any Public Prosecutor for the Board nor the Public Prosecutor is conducting the said criminal case. The complainant has engaged a private lawyer in the instant criminal case. The permission to assist the Public Prosecutor, can be granted under this Section. The lawyer who is engaged by the complainant is not a Prosecutor within a meaning of Section 24 or 25 of Cr. P. Code, for the State Government or the Central Government has not so appointed him, assuming the complainant/ N.A. 1 to be a State within meaning of Article 12 of Constitution of India having been constituted under the Maharashtra Private Security Guards Act, 1981. It is for this reason that Section 301 of Cr. P. Code has no application to the case at all.
6. As far as Section 302 of the Cr. P. Code is concerned, it has to be interpreted in away that it allows permission to be granted to the complainant alone. No third party can seek permission under this Section. The complainant in this case is not seeking any permission to engage a lawyer. If the complainant wants that his private complaint may be conducted by the Public Prosecutor, permission of the Court may not be required but where any other person wants to conduct the proceedings, permission of the court would be necessary. Any other person does not mean a person not connected with the incident at all. It appears that, in this case non-applicant No. 2 wants to intervene because he has personal grievance against the accused since he has been removed from the service and he wants to settle the personal score.
7. In a decision reported in 14 Criminal Law Journal, Reports, 389 (Darshan Das v. Atma Ram), the Allahabad High Court has held that it is doubtful whether the words "any person occurring in Section 495 of the Code of Criminal Procedure would include an absolute stranger who had no connection in the remotest degree with the prosecution and whose desire to help the prosecution was based on a personal grudge only. In the case at hand, it is clear from the application made by the non-applicant No. 2 itself that he has been removed by the accused from service and he is a person who certainly has a grudge against the accused persons. It is precisely for this reason that he wants that he should assist the prosecution. In a Private complaint or even in a State case, to my mind, except the complainant or the accused or persons having interest in complaint or accused, who cannot take care of their own interest may be allowed to put the case of such accused or the complainant. Any third party, who is not connected with the controversy even remotely cannot be allowed to take part in any proceedings.
8. Here, the complainant is a Board constituted under the Act and is represented by the inspector. He has engaged a Private lawyer and he can certainly, take care of the complainant's case. N.A. No. 2 has no interest in the present prosecution. It is for the Board alone to take action which it is capable to do. NA. No. 2 is not the member of the Board and has no locus at all even to intervene. Hence, N.ANo.2 cannot be allowed to assist the Prosecutor or the lawyer
9. Shri Pillai, learned Counsel for non-applicant No. 2 had relied on the decision of this Court in 1986 Cri LJ 2093 (Vijay Valia v. State of Maharashtra). It is held by this Court that not only the accused needs the private legal assistance but even complainant may need so. There cannot be any doubt with regard to that. In the case at hand, the non-applicant who is a workman says he wants to assist the lawyer. He is not a lawyer nor an expert. The complainant himself does not say that it needs any assistance.
In view of this, above decision has no bearing. I find that the; learned magistrate fell in error in allowing the application. This application is, therefore, allowed. The impugned order passed by the magistrate is set side.