Calcutta High Court
Haradhan Sen And Nemai Ghatwal vs State on 20 April, 2004
Equivalent citations: 2004(2)CHN527, 2004CRILJ3881
JUDGMENT G.C. De, J.
1. The nine accused persons, namely 1) Nemai Ghatwal, 2) Sukul Ghatwal, 3) Dulal Ghatwal, 4) Mangla, 5) Samru Ghatwal, 6) Haradhan Sen @ Hara, 7) Prasanta Kumar Roy, 8) Surya Kanta Sen, 9) Kazimat Mia faced a trial under Sections 148, 149/159, 149/302, 149/380 of the Indian Penal Code, but seven of them were acquitted, and Haradhan Sen and Nemai Ghatwal were found guilty and both of them were sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 2,000/- each, in default, to suffer rigorous imprisonment for six months under Section 302/149 of the I.P.C. However no separate sentence was imposed for the offences under sections 148, 380 and 459 of the I.P.C.
2. Against the said judgment of conviction and sentence dated 9.7.98 passed by the learned Judge, Special Court-cum Additional Sessions Judge of Burdwan, Haradhan Sen filed C.R.A. No. 212 of 1998 and Nemai Ghatwal filed another jail appeal which was registered as C.R.A. No. 343 of 1998 Mr. R. Biswas learned Advocate was appointed from the State panel to appear on behalf of the appellant Nemai Ghatwal.
3. Prosecution case in brief is that in the night of 00.30 hours of 14.9.94 14/15 miscreants attacked the house of Dibakar Pabi at village Kishore Kana within P. S. Galshi, District Burdwan, blasted bombs, broke open the front door and entered inside the house which was ransacked, certain articles were stolen and the two sons of Dibakar Pabi, namely, Tapas Pabi and Arup Pabi were seriously assaulted for which they were taken to Kulgaria Chati Primary Health Centre and thereafter to Burdwan Medical College and Hospital where both the injured were declared dead. Thereafter Dibakar Pabi handed over a written complaint to the police officers at about 6.15 a.m. on the same day (14.9.94) and the said complaint was treated an F.I.R. and Galshi P. S. case No. 140/94 dated 14.9.94 was registered at 7.35 a.m.
4. In the written complaint, written by one Anupam Pabi, son of Bibhakar Pabi, it was divulged that hearing the sound of bursting of bomb Dibakar woke up in his first floor room and came to the verandah when be found that 14/15 miscreants entered inside his house, dragged his eldest son Tapas Pabi from his groundfloor room in the courtyard, tied him up and hurled bomb on him. 3/4 miscreants also started assaulting Tapas by lathi and tangi. Seeing this Dibakar Pabi and his wife concealed their youngest son Arup under the Cot of Arup's room in the first floor by means of beddings. Thereafter Dibakar and his wife came down to see the eldest son Tapas. But as soon as they came down the miscreants assaulted both of them and two rings, bangles, nosestud etc. were snatched from his wife. The miscreants thereafter enquired about the youngest son Arup when Dibakar divulged that he left the house. But the miscreants did not believe this statement and 5/6 persons from them went upstairs and brought out the youngest son Arup from his room and took him to the groundfloor when miscreants also started to assault him by means of sharp weapons like tangi. Both the sons wee severely injured. At that time Nemai Ghatwal who was standing in the kitchen shed was instigating by telling "kill completely, otherwise would not spare anybody (Other Akebare Mere Fal, Nachet Rakhha Rakhbena). The miscreants entered inside the rooms of the groundfloor and first floor, ransacked the articles and at about 1.15 a.m. the miscreants left the house. After retreat of the miscreants the co-villagers Prasanta Roy, Sourav Roy and Swarup Pabi somehow managed to take both the injured to Burdwan Hospital where after examination both of them were declared dead by the attending physician. It was also indicted in the written complaint that the complainant was not fully aware whether any other article was taken away by the miscreants and it was apprehended that only for the purpose of killing both the sons the miscreants came to his house.
5. The case was taken up for investigation. Police dog was brought at the spot and it after taking smell of one stick lying in the courtyard of the complainant went straight to the house of Nemai Ghatwal where Nemai was found absent. After post-mortem examination on the dead bodies reports were collected and on completion of the investigation a chargesheet under Sections 459, 302, 148, 149 & 380 of I.P.C. was filed on 7.3.95 against all the nine accused persons. Dulal Ghatwal son of late Subal Ghatwal and Hiru Ghatwal son of late Bhola Ghatwal who were arrested on 15.9.94 were not sent up for trial and accordingly both of them were discharged. The case was committed to the Court of Sessions on 26.6.95 and a charge under Sections 148, 459, 302/149, 302 and 380 of I.P.C. was framed against all the nine accused persons.
6. Since all the accused persons pleaded not guilty to the charge, prosecution examined seventeen witnesses to prove charges levelled against the accused persons. However, no defence evidence was adduced and the defence case as can be ascertained from the trend of cross-examination and the replies given in course of examination under Section 313 Cr. P. C. is absolute innocence.
7. The learned Sessions Judge after considering the evidence and the materials on record came to a finding that the case against Nemai Ghatwal and Haradhan Sen was proved beyond all reasonable doubt. Accordingly, both of them were found guilty and convicted thereunder and sentenced in the manner indicated hereinabove. However, seven other accused persons were found not guilty and all of them were acquitted.
8. It is to be noted that neither the State nor any other person challenged the order of acquittal of the said seven accused persons in any higher forum.
9. In course of hearing of this appeal Mr. Sekhar Basu, learned Counsel appearing on behalf of the convict Haradhan Sen made a foreceful argument after scanning the evidence on record that important facts having not been disclosed in the F.I.R., no reliance can be placed on the evidence which came for the first time before the Trial Court thereby indicating embellishment or afterthought. As regards the important facts Mr. Basu pointed out that presence of Haradhan Sen at the material point of time was not disclosed in the F.I.R. which was drafted at the house of the complainant on 14.9.94 by 6.15 a.m. on getting the death news of both the sons of Dibakar. It is also pointed out that neighbouring witnesses who are also relations of the victims, namely PW. 2 Dibakar Pabi, PW. 3 Anupam Pabi, and PW. 10 Sandya Rani Pabi (mother of the victims) had ample opportunity to divulge the identification of Haradhan or other miscreants at the time of writing the written complaint by PW. 3 Anupam Pabi at the direction of PW. 1 Dibakar Pabi, the father of the victims. On this score reliance was placed on the decision of the Apex Court (Ram Kumar Pandey v. State of Madhya Pradesh). Mr. Basu also argued that when seven of the accused persons were acquitted after disbelieving their presence, common object and participation it cannot be said that Nemai and Haradhan had any common object with them. It is further clarified that if out of nine persons seven are found by the Trial Court as not guilty on consideration that they were not members of the unlawful assembly, it cannot be said that both the convicted persons had the common object of that unlawful assembly, specially when at the time of framing of charge, there was no indication that besides these seven acquitted persons there were other miscreants. So Mr. Basu concluded that on this score the two convicted persons who stand on the same footing with seven other cannot be found gruilty under Section 302 read with Section 149 of the Indian Penal Code.
10. Mr. Basu also clarified that though PW. 7 Swarup Pabi, who carried the injured victims to the Hospital, disclosed that before his death the injured Arup Pabi on way to the hospital disclosed that Nemai and Haradhan actually assaulted them for taking revenge, non-disclosure of this fact at the time of writing of the complaint practically belies the story of this dying declaration. It is also pointed out that PW, 12 Sourav Roy, who also tried to corroborate PW. 7 that Arup was telling something in the ears of Swarup, did not disclose the actual declaration given by Arup. On the other hand, PW. 7 claimed that immediately after getting the said declaration from Arup, PW. 7 divulged the same to PW. 12 (Sourav Roy) and to one Prasanta Roy, who has not been examined in this case. So, Mr. Basu contended that the Trial Court rightly disbelieved the alleged dying declaration and accordingly no reliance should be placed on such declaration which is merely an attempt for betterment of the prosecution case. So Mr. Basu concluded that practically there is no evidence to justify the conviction of Haradhan Sen for which he is liable to be acquitted.
11. Mr. Biswas, learned Counsel who appears on behalf of the convict Nemai Ghatwal took upon himself heavy responsibility to disprove the guilt of the accused Nemai Ghatwal whose name appeared in the F.I.R. itself.
12. Mr. Biswas accepting the argument of Mr. S. Basu further added that when all other accused persons were found to be not a member of the unlawful assembly there is no reason to come to a conclusion that accused Nemai was a member of that unlawful assembly. It is also argued that in the F.I.R. it is not indicated that Dibakar Pabi (PW. 1) actually, saw Nemai Ghatwal but it is simply indicated that he heard instigation of Nemai Ghatwal.
13. Scanning the evidence of PW. 1 Mr. Biswas further contended that Dibakar (PW. 1) had no occasion to see Nemai in the kitchen shed and it is not clarified how Nemai was identified in the darkness of the night. It is further pointed out that wife of PW. 1 Sandhya Pabi (PW. 10) in her evidence claimed that she heard the voice of Nemai. The evidence on record also indicates that she divulged this fact to PW. 1 but it is not indicated in the F.I.R. Mr. Biswas, learned Counsel also in scanning the evidence of PWs. 2 and 3 contended that if these two witnesses had actually seen Nemai and Haradhan coming out from the house of Dibakar after the purported occurrence it is not clarified actually what prevented from disclosing this fact either to the PW. 1 or to PW. 10 before writing of the F.I.R. It is also not clarified if the PW. 3 actually had occasion to see those two persons coming out from this house of Dibakar why such an important fact was not indicated in the written complaint written by the PW. 3 himself.
14. Mr. Biswas also contended that as the stick which was produced in course of the trial, identifying the same as the stick of Nemai, was neither disclosed in the F.I.R. nor the stick was produced in Court with proper label, nor the unlabelled stick was placed in the Test Identification Parade of articles with other sticks for the purpose of ascertaining that the witnesses had the occasion to identify the same as the stick of Nemai. Finally, Mr. Biswas argued that Nemai has been wrongly implicated in this case for which he is liable to be acquitted after setting aside the conviction and sentence.
15. Mr. Biswas also placed reliance on the judgment of the Apex Court in Madan Raj Bhandari v. State of Rajasthan, reported in AIR 1970 SC 438 in support of the contention that Nemai Ghatwal alone cannot be convicted under Section 302 I.P.C. with the aid of Section 149 or of Section 109 of I.P.C, Reliance was also placed in 1987(11) CHN 430, Jeevan Sasmal v. State of West Bengal to show that when the co-accused was acquitted of the charge the appellant cannot be convicted with the aid of Section 109 of I.P.C. without framing formal charge to this effect, otherwise serious prejudice would be caused to the accused.
16. Mr. R. Ghoshal, learned Counsel appearing on behalf of the State contended that the conviction of Nemai Ghatwal was based on sufficient evidence on record and as such his conviction is required to be upheld. As regards the convict Haradhan Sen, Mr. Ghoshal contended that though there were certain gaps in the evidence but there is no reason to find him not guilty to the charge. Virtually Mr. Ghoshal supported the judgment of the Trial Court.
17. In course of hearing of this appeal Mr. Debabrata Roy, learned Counsel appearing on behalf of the de facto complainant filed a petition being CRAN No. 377 of 2004 praying for permission to file a written argument in terms of the provision of Section 301 of the Code of Criminal Procedure.
18. Mr. S. S. Roy, learned Counsel appearing on behalf of the State raised serious objection as regards the admissibility of such written argument. Since complicated law points were raised by the learned Counsel, this Court requested Mr. Milan Mukherjee, learned Counsel to appear as Amicus Curie. Mr. Mukherjee and other learned Counsel argued at length.
19. Now let us consider whether the written argument submitted by the de facto complainant can be accepted in law at this stage and whether the argument made therein are to be looked into.
20. Mr. Debabrata Roy, learned Counsel appearing for the de facto complainant referring to the provision of Section 301 of Cr. P. C. made a forceful argument in support of the contention that Sub-section (2) of Section 301 authorises the Court to give permission as regards filing of written argument. It is also clarified that the term "any Court in which that case is under enquiry, trial or appeal" appearing in Sub-section (1) and the words "if in any such case any private person instructs pleader to prosecute any person in any Court......" appearing in Sub-section (2) are sufficient to indicate that such written argument can be filed even at the appellate stage with the permission of the Court.
21. Mr. S. S. Roy, learned Counsel appearing on behalf of the State in connection with this application being CRAN No. 377 of 2004 however contended that the section itself being unambiguous, there is no necessity of importing any language in Section 301 Cr. P. C. He clarified that when liberty to submit written argument is given under Sub-section (2) that is to be filed "after the evidence is closed in the case". He further clarified that the definition of a pleader appearing in Section 2(q) of the Code if read together with the provision of Section 301 it will indicate that the pleader instructed under Section 301 can act only with the permission of the Public Prosecutor or Assistant Public Prosecutor in-charge of a case. Mr. Roy clarified that pleader in Sub-section (2) of Section 301 shall be at liberty to act if the permission is given by the Public Prosecutor or the Assistant Public Prosecutor before any Court in which the case is under enquiry, trial or appeal. In this connection Mr. Roy also drew the attention of this Court to the West Bengal Amendment of Sub-section (1) of Section 301 of the Code in which the Public Prosecutor in-charge of a case was authorised to appear and plead without any written authority before any Court in which that case is under enquiry, trial or appeal. Similarly the 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 enquiry or trial. By the said amendment an attempt has been made to debar the Assistant Public Prosecutor to appear without any written authority in connection with the appeal. However, it was pointed out that the proposed amendment brought in by West Bengal Act 26 of 1990 has not been given effect to, and none of the Counsel appearing could supply the date of enforcement of the said provision. So we proceed with the proposition that the said amendment has not been given effect to.
22. Mr. Roy also drew the attention of this Court to the provision of Section 493 of the Code of Criminal Procedure, 1898 which reads as follows :
"The Public Prosecutor may appear and plead without any written authority, before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs as pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein under his directions".
23. So Mr. Roy contended that there was no provision of submission of written argument in the old Code but in the new Code such provision has been made by inserting Section 301(2).
24. It is interesting to note that ******* of Section 493 of the old Code is "Public Prosecutor may plead in all Courts in cases under his charge. Pleaders privately instructed to be under his direction." It appears that this description of Section 493 of the old Code with certain modifications were introduced as Section 301 in the new Code with two sub-sections. Sub-section (1) speaks of the authority of the Public Prosecutor or Assistant Public Prosecutor in-charge of a case to appear before any Court in which the case is under enquiry, trial or appeal, by Sub-section (2) authority is also given to a private person to engage a pleader to prosecute any person in such a case and the pleader so appointed is authorised to act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor. He is also authorised with the permission of the Court to submit a written argument after the evidence" is closed in the case. We deem it proper to reproduce Section 301 of the new Code :
"(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 of 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 direction of the Public Prosecutor or Assistant Public Prosecutor and may with, the permission of the Court, submit written argument after the evidence is closed in the case".
25. Mr. Milan Mukherjee, learned Counsel appearing as Amicus Curie however contended that in Bhagwant Singh v. Commissioner of Police, , the Apex Court considered the role to be played by the de facto complainant in course of a criminal proceeding and clarified that Section 173(2)(i) of the Code gives an authority to the de facto complainant in course of a criminal proceeding and clarified that Section 173(2)(i) of the Code gives an authority to the de facto complainant to be intimated about the result of investigation at the time of submitting a report in final form after completion of investigation by police. The view was further clarified by the Apex Court in J.K. International v. State of N.C.T. of Delhi and Ors., reported in 2001 SCC (Cri) 547, that the de facto complainant has some role to play in a criminal proceeding. In the said judgment the provision of sections 301 and 302 of the Code was analysed and the scope of private person's participation in the conduct of prosecution when the trial is before a Magistrate's Court was upheld. So, the settled principle of law is that the de facto complainant has the authority to pray for permission of the Court to conduct a criminal case before the learned Magistrate under Section 302 of the Code and if such permission is granted by the Court the private individual or pleader on his behalf shall be entitled to conduct a criminal case before the learned Magistrate.
26. Mr. Milan Mukherjee also referred to a Division Bench judgment of this Court in Rakhan Ojha @ Rakhal Chandra Ojha reported in 1987(I) CHN 422. We deem it proper to quote the relevant portion from that Judgment:
"(8) A plain reading of the abovequoted provision makes it abundantly clear that if in a case which is in charge of a Public Prosecutor or Assistant Public Prosecutor a private person engages a lawyer then, notwithstanding such engagement, the Public Prosecutor or Assistant Public Prosecutor who is in charge of the case shall conduct the prosecution and the lawyer engaged by the private person shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor and he can only submit written arguments and that too with the permission of the Court. In other words lawyer engaged by a private person has no right or audience in a case which is in charge of a Public Prosecutor.
(9) Law is now well settled that intention or object of the legislating authority is hardly relevant when the language of the statute is plain and unambiguous and when it does not a admit of two possible interpretations. To put it differently, when the language of the statute is clear and unambiguous nothing can be added or substracted so as to give a different meaning to the statute as the function of the Court is to interpret and not to legislate. When Section 301(2) specifically says that the lawyer engaged by the private persons can submit written arguments there is no scope for going behind the letters of the law to hold that such a lawyer can address the Court orally also".
27. Mr. Mukherjee also placed reliance in the case of Shiv Kumar v. Hukum Chand, reported in 1999 SCC (Cri) 1277 in which it was further clarified by the Apex Court that the provision of Section 301 of the Code is applicable to all Courts. Paragraphs 12, 13 and 14 from the said judgment are set out as follows :
"(12) In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined to Magistrate Courts, this particular section is applicable to all the Court of criminal jurisdiction. This distinction can be discerned from employment of the words "any Court" in Section 301. In view of insistence contained in Section 301(2) must be understood as applicable to all other Courts without any exception. The first sub-section empowers the Public Prosecutor to plead in the Court without any written authority, provided be is in charge of the case. The second sub-section, which is sought to be invoked by the appellant, imposes the curb on counsel engaged by private party. It limits his role to act in the Court during such prosecution "under the directions of the Public Prosecutor." The only other liberty which be can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the Court permits him to do so.
(13) From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. This expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence Counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledge. A private Counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.
(14) It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged Counsel is permitted to act on his behalf. The role which a private Counsel in such a situation can play is, perhaps, comparable with that of a junior Advocate conducting the case of his senior in a Court. The private Counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter".
28. So Mr. Mukherjee contended that the scheme of the Code authorises the de facto complainant to take part directly under Section 302 of the Code when trial is before the learned Magistrate and also to help the Public Prosecutor when it is in course of enquiry, trial or appeal.
29. Mr. Mukherjee however contended that since there is no specific law giving the authority to the de facto complainant to take active part in the Sessions Trialable Cases, it has become necessary to get judicial pronouncement on this score.
30. Mr. Mukherjee in this connection draw the attention of this Court to the legislative intention in the United Kingdom and referred to Section 36 of the Criminal Justice Act, 1972 which was amended by Prosecution of Offences Act, 1985. Mr. Mukherjee referring to commentary on that section published at page 1970 of Blackstone's Criminal Practice (1977) contended that private complainant practically has no role to play in connection with a case that ended in acquittal of the accused person. Accordingly, Mr. Mukherjee referring to the Scheme of Criminal Procedure Code especially the addition of Sub-section (2) of Section 301 and the enabling provision of Section 302 of the Code highlighted the necessity for a decision from this Court as regards the role to be played by the de facto complainant when such a case is pending at the appellate stage.
31. After a careful scrutiny of the case laws relied upon by the learned Counsel appearing for the parties, it appears that in the old Code when the prosecution was being conducted by Police Prosecutors in Magistrate Courts it was thought that intention of the prosecution was somehow to get conviction of the accused persons. Accordingly, there was a specific provision for conducting the Sessions Trial by the Public Prosecutor alone and not by anybody else with the sole object to see that there was a fair trial leaving aside the intention of the prosecution to somehow get the conviction of an accused. There were also other provisions on the basis of which the accused could expect fair trial.
32. Subsequently it was detected that the de facto complainant was not equally treated in a criminal proceeding. There were instances where the investigating agency did not take into consideration the views of the de facto complainant and in many cases final reports were submitted even ignoring the view point or evidence produced by the de facto complainant. So a doubt was expressed as to whether in the quest of justice to the accused, justice was denied to the de facto complainant or not. In the new Code such a situation was taken care of and Sub-section (2) of Section 301 was added splitting Section 493 of the old Code. A separate Section 302 was also introduced in the new Code.
33. Similarly certain changes were also made in respect of Section 173 of the Code enabling the de facto complainant to get information as regards the action taken by the Investigating Officer in respect of the complaint. In J.K. International v. State of N. C. T. of Delhi (supra) the Apex Court analysed the provisions of a Sections 301 and 302 along with the provision of Section 173 of the Code and the view was taken that the de facto complainant has a right to get information as regards the action taken by the Investigating Officer in respect of the complaint. It was also viewed that the de facto complainant in a fit and proper case would be entitled to conduct the prosecution with the laws of the Court if such a ease is pending before any Magistrate.
34. Following the principle adopted in the case of J. K. International one of us (Mr. G.C. De, J) in Uma Nath Choudhury and Anr. v. Rahul Dutta, reported in 2003 C Cr LR (Calcutta) 481, further clarified that a Court before proceeding with the report in the final form submitted by the Investigating Agency on the basis of a complaint must ascertain that the action taken by the Investigating Agency is communicated to the de facto complainant so that the de facto complainant can get appropriate opportunity to make his submission in that regard. So it is clarified that appropriate care has also been taken in the new Code to see that justice is not denied to be de facto complainant in the quest of justice to the accused person. But it is manifestly clear from the discussions made hereinbefore that a distinction has been made with regard to the trial of ordinary cases before the Magistrate and the serious cases before the Court of Sessions. Under Section 302 of the Code the de facto complainant with the permission of the Court can conduct a case before any Magistrate, even by engaging a pleader.
35. Provision is also there under Section 314 of the Code enabling the parties to the proceeding to submit a memorandum to the Court setting forth concisely and under distinct headings, the arguments in support of his case, of course after closing of his evidence. A question may be raised as to whether the de facto complainant not conducting a proceeding personally or by engaging a pleader, has any right to file a written argument after close of the evidence under Section 314 of the Code and such memorandum of argument shall form part of the records? In Sub-section (2) of Section 301 it is clarified that "if in any such case any private person instructs a pleader for prosecuting any person in any Court, the Public Prosecutor or the Assistant Public Prosecutor in charge of the case shall conduct a prosecution and the pleader so instructed shall act therein under the direction of the Public Prosecutor or Assistant Public Prosecutor and may with the permission of the Court submit a written argument after the evidence is closed in the case". In Shiv Kumar v. Hukam Chand and Anr. (supra) the Apex Court clarified the scope of Sections 301 and 302 of the Code. It is also noted that the provision of Section 301 is applicable to all Courts of appropriate jurisdiction. Under Section 225 of the Code "In every trial, before the Court of Sessions, the prosecution shall be conducted by the Public Prosecutor". The definition of the Public Prosecutor under Section 2(u) of the Code "means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor". In Section 24 provision is there as to how Public Prosecutor and Additional Public Prosecutor can be appointed, and the heading 'Public Prosecutors' includes Additional Public Prosecutor. Thus, under the definition of Section 2(u) any person acting under the direction of the Public Prosecutor is also to be construed as a Public Prosecutor, indicating that if a person is permitted to act in a case under the direction of the Public Prosecutor within the meaning of Section 301(2) of the Code he has to be construed as a Public Prosecutor for the purpose of acting and not for 'pleading'.
36. Section 25 of the Code makes provision for the appointment of Assistant Public Prosecutors who can conduct the prosecution in the Courts of Magistrate only. So another question may also arise whether the Assistant Public Prosecutor in charge of a case may appear and plead in the Court in which that case is under appeal. It appears that the Sub-section (1) of Section 301 of the Code practically authorises 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. So in respect of a particular case of which the Assistant Public Prosecutor is in charge has the authority to appear, plead even before the Court in which that case is under appeal, and Section 25 of the Code cannot be construed to be a bar for such appearance.
37. In Sub-section (2) of Section 301 any private person has the authority to instruct a pleader to prosecute any person in any Court in respect of any such case, but the pleader so instructed is authorised to act therein under the direction of the Public Prosecutor or the Assistant Public Prosecutor in charge of the case. So in respect of a case pending before the Court of Sessions or before the Court of Magistrate any pleader instructed by any private persons has the authority to act under the direction of the Public Prosecutor or the Assistant Public Prosecutor. However Section 302 of the Code authorises a private person to conduct a prosecution personally by a pleader if such a case is pending before any Magistrate. Thus in respect of a Sessions Cases a definite distinction has been made as regards the part to be played by a private person. Of course such a private person in Sessions Trial can submit a written argument with the permission of the Court after the evidence is closed which is in tune with the procedure for submission of argument under Section 314 of the Code. Such a written argument can only be filed after the evidence is closed in the case. So it is sufficiently clear that with the permission of the Court a written argument can be submitted by a private person either in Sessions Court or in the Court of any Magistrate after close of the evidence and not otherwise.
38. It is tried to be argued that an appeal is the continuation of the trial and accordingly there cannot be any bar in submitting written argument at the appellate stage. The decisions relied upon by Mr. Mukherjee sufficiently clarifies that such written argument can only be filed after the close of the evidence at the trial stage. If the words "after the evidence is closed in the case" was not there in the concluding part of Sub-section (2) of Section 301, such an argument could have been considered. But when the language in the section is clear and unambiguous it would be unjustified to import any language or to include any word in this section. So after a careful consideration we take the view that no authority has been given to the private persons to submit written argument at the appellate stage. In this case we like to place reliance on a decision of Kerala High Court in Babu v. State (1984 Cr. LJ 99) and also in another decision of the Andhra Pradesh High Court in Kikar Karel v. Satya Narayana (1984 Cr. Law Journal 344 AP) in which the view was taken that permission under Section 302 can be granted by the Court under very very exceptional circumstances where denial of such permission will stand in the way of dispensation of justice. However, the Bombay High Court in Bijay v. State (1986 Cr. Law Journal 2093) took the view that permission to communicate the advocate should be given to the complainant. These conflicting views were however settled by the Apex Court in the case of J. K. International (supra). So from the above discussion it is sufficiently clear that right of the de facto complainant to conduct the case before any Magistrate has been approved by the Court. Similarly his power to submit written argument after close of the evidence is also approved. It is also settled that the de facto complainant can engage a Counsel to act under the direction of the Public Prosecutor or the Assistant Public Prosecutor in any Court whether it is before the Court of Sessions or before the Court of Magistrate. It is needless to reiterate that in appropriate case the Court can grant permission to any person or to the Counsel engaged by the de facto complainant to conduct the proceeding in a case pending before in the Court of any Magistrate. Similarly, they have power to submit written argument but that right to file written argument by the de facto complainant is limited upto the stage of trial, of course with the permission of the Court and not after the pronouncement of Judgment.
39. However, Mr. Roy appearing on behalf of the de facto complainant tried to convince that justice would be denied to the de facto complainant if no liberty is given to him to make his submission even at the appellate stage. It is also argued that at the trial stage the de facto complainant might not get adequate legal guidance to make his submission and as such an opportunity should be given to the de facto complainant to make his submission by way of written argument through his appointed pleader at the appellate stage. It is needless to mention that even at the appellate stage taking of evidence is permissible. So, if such situation actually arises the Court may consider the possibility of granting permission to file written argument even at the appellate stage by the learned Counsel appointed by the de facto complainant. But generally when the appeal is pending against the judgment in connection with a Sessions Trial, the de facto complainant has not been given any authority to pray for permission to file a written argument. Practically such a provision has not been included in the Code of Criminal Procedure. Since the entire conduct of the Sessions Trial has been entrusted to a Public Prosecutor who is expected to be fair, interference by any private individual in a case of this nature has not been approved in the Code, Similarly at the appellate stage in respect of a Sessions Case the learned Public Prosecutor is to take charge for its conduct and the learned Counsel engaged by the de facto complainant can only help the learned Public Prosecutor in the manner renders by a junior Counsel to his senior. So, we take the view that at the appellate stage there is no scope for filing of any written argument by a private Counsel. Only in the case where further trial or evidence would be necessary at the appellate stage, written argument can be filed if the Court thinks it necessary for the purpose of a fair trial i.e. only on the basis of permission granted by the Court.
40. Keeping in view the above discussion we come to a conclusion that the de facto complainant should not be allowed to file written argument in the present case at this appellate stage and accordingly his application being CRAN No. 377 of 2004 is liable to be rejected.
41. How coming to the evidence on record it is to be pointed out that in the written complaint, which was prepared within few hours of the incident, the name of Nemai Ghatwal was disclosed. But there is no whisper of the presence of Haradhan Sen. It is to be noted from the evidence of PW. 2 and PW. 3 that they disclosed the name of Haradhan. Both of them saw him at the time of the alleged incident near the place of occurrence. PW. 3 if actually saw Haradhan at the time of the incident it is not expected that such an important fact would not be mentioned in the written complaint which was written by him. It is also to be rioted that PW. 1 and PW. 10 in their evidence before Court though claimed the presence of Haradhan at the time of incident, but surprisingly enough those important facts were also not stated to the PW. 3 at the time of writing of the written complaint.
42. Written complaint was written only on getting death news of both the victims, namely, Tapas Pabi and Arup Pabi from PW. 7 (Swarup Kr. Pabi) and PW. 12 (Sourav Roy) who accompanied the injured to the Health Centre and thereafter to the Burdwan Medical College and Hospital. PW. 7 while imparting death news of the victims to the parents of the victim including PW. 2 and PW. 3 disclosed the verbal communication made by Arup Pabi that "Haradhan Sen took revenge due to old rivalry by killing me and my elder brother". It was also divulged by Arup on being questioned by PW. 7 that Arup recognised Haradhan Sen and Nemai inside the house of PW. 1 Dibakar Pabi. It appears from the evidence of PW. 7 that immediately on getting the said important information he communicated the same, to Prasanta and Sourav (PW. 12). Prasanta was not examined in this case. However, Sourav (PW. 12) simply stated that he saw Arup murmuring in the ears of Swarup (PW. 7) while the injured persons were being carried to the hospital by cart. But he did not disclose about the declaration made by Arup to Swarup (PW. 7). PW. 7 also stated that he did not disclose such important fact to anybody else. So, it is sufficiently clear that the said claim of the PW. 7 is neither corroborated by PW. 12 nor there is any indication that it was communicated to anybody else before writing of the complaint though he communicated the death news to everybody. So the alleged dying declaration of Arup Pabi is undoubtedly an afterthought or an embelishment. It appears that the Trial Court discussed this matter in details and rightly did not place any reliance on such dying declaration. We are of the view that the learned Trial Court rightly disbelieved the communication of PW. 7 in this regard. It is needless to mention that the Autopsy Surgeon (PW. 4) Dr. Samudra Chakraborty also clarified that after sustaining sixteen injuries by Arup Pabi (Ext. 4)it was not possible on his part to remain conscious and to make any statement. So we do not place any reliance on the evidence of PW. 7 or PW. 12 on this score.
43. So, it is sufficiently clear from the evidence of the vital witness that the name of Haradhan Sen was disclosed long after writing of the complaint. It is also to be noted that at the very initial stage when police personnel was very much present in the house of PW. 1 immediately after the incident till receipt of the written complaint it was never disclosed that Haradhan Sen was present at the time of the incident though it was disclosed that Nemai Ghatwal was present. In this connection it is also difficult to turn down the claim of the appellants that the name of Haradhan was included purposedly keeping in view the old rivalry arising out of an irrigation dispute in the field as early as in February, 1994, It appears that though the proceeding under Section 107 Cr. P. C. between Haradhan Sen and his two sons, and Dibakar Pabi (PW. 1) and his sons Tapas Pabi and Arup Pabi were produced before Court, those were not virtually proved and marked as Exhibit. It wad indicated in the evidence before the Court that Dibakar Pabi had old rivalry with Haradhan Sen. There is reason to believe that on the basis of such rivalry the name of Haradhan Sen was included amongst the assailants.
44. In this connection it is also to be pointed out that the Trial Court while took the view that the other miscreants could not be recognised by torch light, how Haradhan Sen was recognised is not clarified. The Trial Court also took the view that Haradhan Sen took active part and Haradhan Sen piloted the operation standing in the scene of occurrence. It appears that such deduction was made on the basis of the evidence adduced by PW. 1, PW. 2 and PW. 3 and PW. 10 and also keeping in view the alleged old rivalry of seven months ago. But it is already discussed hereinabove that none of the said four witnesses can be believed on the point of presence of Haradhan for not disclosing the name at the earliest opportunity. It is needless to mention that the Trial Court while acquitting the other accused persons standing in the same footing, no justification was given as to how Haradhan can be found on a different footing or how a charge against Haradhan was actually proved. So we take the view that the Trial Court misread the evidence and also misdirected himself in assessing the circumstances. Accordingly, we come to the conclusion that the conviction against Haradhan Sen cannot be upheld, and it is decided that the prosecution has not been able to prove the charge against Haradhan Sen beyond reasonable doubt. Practically there is no evidence on record on the basis of which it can be said that Haradhan was present at the time of the alleged incident and he piloted the entire action and took active role concerning the alleged incident. So Haradhan Sen is to be found not guilty to the charges levelled against him and he is to be acquitted after setting aside the conviction and sentence imposed by the Trial Court against him.
45. As regards Nemai Ghatwal it is already indicated hereinbefore that his name was disclosed in the written complaint. Moreover, the stick that was found near the kitchen shed was identified by witnesses and the sniffer dog, brought in by police to his spot, after taking the smell of the stick rushed to the house of Nemai Ghatwal where Nemai was not found. So the evidence of PW. 1 Dibakar Pabi and PW. 10 Sandhya Pabi as regards giving direction to the assailants by Nemai Ghatwal as reflected in the written complaint along with the factum of availability of the stick and not availability of Nemai in his residence immediately after the occurrence coupled with the evidence of PW. 2 and PW. 3 i.e. Dibakar Pabi and Anupam Pabi respectively, that they saw Nemai Ghatwal coming out of the house of PW. 1 (complainant) immediately after the incident are sufficient to establish the presence of Nemai Ghatwal in the alleged occurrence beyond any reasonable doubt. So on the basis of the evidence on record it appears that Nemai Ghatwal was instigating the assailant to kill Tapas Pabi and Arup Pabi. This act of Nemai is sufficient to bring home the charge levelled against him. The Trial Court rightly came to the conclusion that Nemai was to be convicted under Section 302 read with Section 148 I.P.C. since the presence of Nemai Ghatwal with the unlawful assembly which trespassed into the house of PW. 1 after breaking open the front door of the house and had stolen the valuables has been established. The Trial Court came to a just decision that Nemai Ghatwal was also to be convicted under Sections 148, 380, 459 read with Section 149 of I.P.C. Accordingly, we hold and conclude that such finding of the Trial Court should be upheld.
46. Though it was argued that other accused persons having been acquitted Nemai Ghatwal cannot be convicted with the aid of Section 149 of I.P.C. But it is already clarified that Nemai Ghatwal was a member of an unlawful assembly that committed larking house trespass, theft of articles and double murder. Acquittal of few of the accused persons cannot be construed to be absence of any unlawful assembly. On the other hand, evidence on record is sufficient to indicate that more than five persons formed an unlawful assembly for the purpose of committing the said crimes and Nemai Ghatwal took active part by giving instigation to the members of unlawful assembly. So, we hold and conclude that the conviction of Nemai Ghatwal and the sentence imposed upon him by the Trial Court shall be sustained.
47. Accordingly, the Criminal Appeal being CRA No. 212 of 1998 is allowed. The judgment of conviction and sentence passed by the Trial Court against Haradhan Sen are hereby set aside. Haradhan Sen is found not guilty to the charges levelled against him and he is accordingly acquitted. He be released forthwith.
48. However, C.R.A. No. 343 of 1998 is dismissed.
The judgment of conviction and sentence passed by the Trial Court against Nemai Ghatwal are hereby affirmed.
49. The application bearing No. CRAN No. 377 of 2004 of also rejected,
50. Let a copy of this judgment be sent to the Trial Court forthwith for necessary steps.
51. We are grateful to Mr. Milan Mukherjee, learned Counsel for rendering necessary help as an Amicus Curie in these appeals.
52. This judgment do govern the fate of both the Criminal appeals.
Sankar Prosad Mitra, J.
53. I agree.