Allahabad High Court
Suneel Kumar Singh vs State Of U.P. on 18 February, 2019
Bench: Anil Kumar, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 10 Crl. Misc. Application No.22715 of 2019 In re; Case :- CRIMINAL APPEAL No. - 724 of 2017 Appellant :- Suneel Kumar Singh Respondent :- State Of U.P. Counsel for Appellant :- Indrajeet Shukla,Brij Mohan Sahai Counsel for Respondent :- Govt. Advocate,Arun Sinha,Siddhartha Sinha Hon'ble Anil Kumar,J.
Hon'ble Vikas Kunvar Srivastav,J.
Heard Sri Brij Mohan Sahai, learned counsel assisted by Sri Indrajeet Shukla for the appellant, Sri Chandra Shekhar Pandey, learned Additional Government Advocate and Sri Sharad Dixit, learned counsel for the complainant on short term bail application pending in appeal.
This short term bail application has been moved on behalf of the accused-appellant/ Suneel Kumar Singh, who involved in Gangster Case No. 448 of 2012 arising out of Case Crime No. 717 of 2003 under Sections 147,148,149,504,506,307/34, 302 IPC & 3(1) U.P. Gangster & Anti Social Activities Act,1986 and Gangster Case No.451 of 2012 arising out of Case Crime No. 726 of 2003 under Section 25/27 Arms Act, Police Station Gosaiganj ,District Sultanpur Sri Brij Mohan Sahai, learned counsel for the accused- appellant while pressing the present application submits that the marriage of his niece is fixed on 22.2.2019 , so accused appellant may be released on short term bail.
Learned Additional Government Advocate does not dispute the fact that marriage is fixed on 22.2.2019.
Sri Sharad Dixit, learned counsel for the complainant has opposed the short term bail on the ground that previously when the accused-appellant was released on bail, misused the same, so he is not entitled for short term bail.
Sri Brij Mohan Sahai, learned counsel for the appellant , in rebuttal, submits that Sri Sharad Dixit, learned counsel for the complainant has no authority to oppose the short term bail on the ground that initially he had argued the matter in the capacity of Additional Government Advocate, so he cannot be permitted to argue and oppose the matter on behalf of the complainant/victim in view of the provisions under section 301 read with Section 302 Cr.P.C..
We have heard learned counsel for the parties on the short term bail application as well as the point whether an Advocate initially argued the cae in the capacity of Government Advocate/ Additional Government Advocate/ Assistant Government Advocate/ Brief Holder in an appeal and if he has been disengaged in the aforesaid capacity , can argue the case on behalf of the complainant or not?
In order to decide the above said point, it will be appropriate to consider the following things:-
Definition of Public Prosecutor as given under Section 2 (u) of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) Section 2 (u) :- "Public Prosecutor" means any person appointed under Section 24, and includes any person acting under the disrection of a Public Prosecutor.
And Section 24 of Cr.P.C. has been amended in 1978 and there are following categories of Public Prosecutor :
(a) A Public Prosecutor for the High Court appointed by the Central Government or the State Government, after consultation with the High Court.
(b) A Public Prosecutor appointed by the Central Government for conducting any case or classes of cases in any district or local area.
(c) A Public Prosecutor for each District, appointed by the State Government.
Besides the above categories of Public Prosecutors, the State Government or the Central Government may appoint Assistant Public Prosecutor for conducting prosecution in the Courts of Magistrates But they would not be regarded as "Public Prosecutors" for the purposes of Code, because the definition in the instant clause refers only to those persons who are appointed under Section 24.
Functions of a Public Prosecutor - Unless a person comes with the instant definition, he cannot discharge any of the following functions which are entrusted, inter alia, to a Public Prosecutor, by various provisions of the Code :
(i) Section 199 (2) - complainant for the offence of defamation against President, Vice-President, Governor, Administrator or public servant.
(ii) Section 225- conduct of prosecution, in sessions cases.
(iii) Section 301 (1) Cr.P.C. - power to appear and plead in any Court, without written authority and to conduct prosecution without permission of Court.
(iv) Section 308 (1) - certificate of Public Prosecution necessary for trial of approver who has not complied with conditions of tender of pardon.
(v) Section 321- withdrawal of prosecution.
(vi) Section 378 (1) - appeal against acquittal.
(vii) Section 407 (5) notice of application for transfer of case to be given to the Public Prosecutor.
Duty in conducting prosecution - In conducting a prosecution, the Public Prosecutor represents not the Police but the State, for the purpose of determining the innocence or guilt of the accused and not to secure a conviction at any cost. He must, therefore, discharge his duty fairly and fearlessly and place the testimony of all available witnesses before the Court, which alone is competent to determine the innocence or guilt of the accused person. In a large sense, he is an officer of the Cort and is bound to assist the Court with his fairly considered view.
Present appeal is filed by the accused-appellant challenging the conviction and sentenced passed by trial court then as per the Cr.P.C. he can move an application for grant of bail under Section 389 Cr. P.C. which reads as under:-
Section 389 Cr.P.C. reads as under :-
"(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended."
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
Further, by Code of Criminal Procedure amendment Act 2008 (5 of 2009) certain amendments were made in the Cr.P.C. to facilitate the participation of victim in criminal prosecution of an offender. Section 2(wa) definition of 'victim' has been added quoted herein below:
"2(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;) In sub-section 8 of Section 24 of Cr.P.C a proviso has been added whereby court was authorised to permit the victim to engage an Advocate of his choice to assist the prosecution. The relevant provision of Section 24(1) and 24(8) are reproduced herein below:-
"24. Public Prosecutors.--(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2)......
(3)......
(4).......
(5).....
(6).....
(7).....
(8)The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor."
[provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.] It is not in dispute that the legislature made certain amendment vide Act No.5 of 2009 in Cr. P.C. by adding definition of victim and giving right to victim to engage counsel of his choice during prosecution of accused under section 24 and also giving right to file an appeal under section 372. The statement of object and reason for such amendment given in the bill are quoted herein below :-
"Amendment Act 5 of 2009- Statement of Objects and Reasons:- The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant- cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial of persons of unsound mind. Also, as per the Law Commission's 177th report relating to arrest, it has been found necessary to revise the law to maintain a balance between the liberty of the citizens and the society's interest in maintenance of peace as well as law and order.
The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential, rich and powerful. At present, the victims are the worst sufferers in a crime and they don't have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system. The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimise the risk of escape of the remand prisoners during transit and also facilitate utilisation of police personnel for other duties. There is an urgent need to provide relief to women, particularly victims of sexual offences, and provide fair trial to persons of unsound mind who are not able to defend themselves."
The objective to be achieved by the aforesaid amendment as per proviso added in Section 24(8) of Cr.P.C. seems to extend help the victims and to give more active role in dispensation of the criminal justice and to provide active participation of the victim in the justice delivery system keeping in view the concept of fair trial enshrined under article 21 of the Constitution of India. Prior to the amendment in Section 24(8) Cr.P.C, the Apex Court in Delhi Domestic Working Women's Forum Vs. Union of India and Others reported in 1995 (1) SCC 14 felt need to issued direction to provide legal assistance to the victim of sexual assault even before the stage of trial and when the matter was at the stage of investigation. The Apex Court also directed to prepare a list of Advocate willing to act in such type of case where the victims are the women or the victim of sexual assault.
The Apex Court in State of Kerla Vs. B.Six Holiday Resorts (P) Ltd (2010) 5 SCC 186 has observed in regard to the insertion of proviso in statute book and held;
'A proviso may either qualify or except certain provisions from the main provision; or it can change the very concept of the intendant of the main provision by incorporating certain mandatory conditions to be fulfilled; or it can temporarily suspend the operation of the main provision. Ultimately the proviso has to be construed upon its terms. Merely because it suspends or stops further operation of the main provision, the proviso does not become invalid. The challenge to the validity of the proviso is therefore rejected.' The Hon'ble Supreme Court in A.Manjulla Bhashini Vs. A.P.Women's Coop. Finance Corporation Ltd. (2009) 8 SCC 431 has considered the use of statement of object and reason while interpreting the statutory provision and observed in para 42 is as follows:
" The proposition which can be culled out from the aforementioned judgements is that although the Statement of Objects and Reasons contained in the Bill leading to enactment of the particular Act cannot be made the sole basis for construing the provisions contained therein, the same can be referred to for understanding the background, the antecedent state of affairs and the mischief sought to be rermedied by the statute. The Statement of Objects and Reasons can also be looked into as an external aid for appreciating the true intent of the legislature and/or the object sought to be achieved by enactment of the particular Act or for judging reasonableness of the classification made by such Act."
Almost similar view has been taken by Apex Court in Tika Ram Vs. State of Uttar Pradesh [(2009) 10 SCC 689].
The Apex Court in Zameer Ahmed Latifur Rehman Sheikh Vs. State of Maharashtra [(2010) 5 SCC 246] ruled about interpretation of the statute. It has been observed that the statute has to be read in its entirety and not in isolation. The provision of law has to be seen in the context in which it is introduced.
In R. Rathinam Vs State (AIR 2000 SCC 1851) the Hon'ble Supreme Court permitted a lawyer to file an application for cancellation of bail. This view was approved by the Apex Court in Puran Vs. Rambilas [(2001) 6 SCC 338. In R. Rathinam's case (supra) the Apex Court held that the frame of sub-Section 2 of Section 439 Cr.P.C. indicates that it is a power conferred on the court mentioned therein. It was held that there was nothing to indicate that the said power could be exercised only if the State or investigating agency or the Public Prosecutor moved an application. It was held that the power so vested in the High Court can be invoked by any aggrieved party he can addressed the court.
The Apex Court in Dawarika Prasad Agarwal Vs. B.D. Agarwal [(2003) 6 SCC 230] held that party can not made to suffer adversely either directly or indirectly by reason of an order passed by any court of law which is not binding on him. The very basic upon which a judicial process can be resorted to is reasonableness and fairness in a trial. The fair trial is fundamental right of every citizen including the victim of the case under article 21 of our Constitution as held in Nirmal Singh Kahlon Vs. State of Punjab [(2009) 1 SCC 441.
On the careful scrutiny of the criminal procedure, we find that Legislature has not framed any section by which mechanism has been given that in what manner, the appeal and bail application filed under Sections 374 and 389 Cr.P.C. are to be conducted. However, in this regard, the only procedure is being provided in respect of conducting the sessions trial under Section 301 Cr.P.C.
On the careful scrutiny of the criminal procedure, we find that Legislature has not framed any section by which mechanism has been given that in what manner , the appeal and bail application filed under Sections 374 and 389 Cr.P.C. are to be conducted. However, in this regard, the only procedure is being provided in respect of conducting the sessions trial / grant bail under section 301 Cr.P.C.
Section 301 of the Cr.P.C. is extracted hereunder:
"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."
In this regard it is also relevant to consider Section 302 of the Cr.P.C. of which for considering the point in question is quoted as under:-
"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."
It deserves to be noted that the provision of Section 302 of the Cr.P.C. is intended only for the Magistrate Court. It enables the Magistrate to permit any person to conduct the prosecution. The only rider is that the Magistrate cannot give such permission to a police officer below the rank of Inspector. Such person need not necessarily be a Public Prosecutor.
In the Magistrate's Court anybody (except a police officer below the rank of Inspector) can conduct prosecution, if the Magistrate permits him to do so. Once the permission is granted, the person concerned can appoint any counsel to conduct the prosecution on his behalf in the Magistrate's Court.
But, the above laxity is not extended to other Courts. A reference to Section 225 of the Code is necessary in this context. It reads thus:
"225. Trial to be conducted by Public Prosecutor. In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor."
The old Criminal Procedure Code (1898) contained an identical provision in Section 270 thereof. A Public Prosecutor means "any person appointed under Section 24 and includes any person acting under the directions of the Public Prosecutor",(vide Section 2(u) of the Code).
There are two parts of subsection (1) of Section 301. The first subsection gives absolute power to the Public Prosecutor or the Assistant Public Prosecutor in charge of the case to appear and plead without any written authority before any Court in any inquiry, trial or appeal. Subsection (2) provides that if in such case, means in a case which is under inquiry, trial or appeal in any Court, any private person instructs a pleader to prosecute any person, the Public Prosecutor or the 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 the Assistant Public Prosecutor. Pausing for a while here, the above provisions clearly do not indicate that any permission as such is required from the Court for any private person to instruct a pleader to prosecute any person in any Court along with the Public Prosecutor. It clearly shows that the Public Prosecutor or the Assistant Public Prosecutor is in charge of the case and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor. The words "under the directions of the Public Prosecutor or Assistant Public Prosecutor" are significant. They expressly indicate that the private pleader so instructed to act in a case pending before any Court is permitted to act "under the directions of the Public Prosecutor" i.e. to say if the Public Prosecutor is otherwise willing to accept such instructions from private pleader, he can authorise such pleader to act in the case. The question of granting permission by the Court does not arise at all, in view of the clear provisions of the section. However, the learned counsel for the applicant contended that this section authorises the Court to give permission to the private lawyer of the first informant to make oral arguments. I am afraid, that this contention is without any substance. In my opinion, the words used in this section "under the directions of the Public Prosecutor" will have to be construed in the ordinary meaning i.e. to say "under the guidance and control of the Public Prosecutor or Assistant Public Prosecutor as the case may be."
Having provided that the pleader so instructed shall, act "under the directions of the Public Prosecutor or Assistant Public Prosecutor", Section 301(2) further provides that with permission of the Court, such pleader may submit written arguments after evidence is closed in the case. The word "permission" used in section is restricted only to grant permission in regard to written arguments. This stage is also provided after the evidence is closed in the case.
The word "act" is dependent on the words "under directions of the Public Prosecutor." If the word "act" used in Section 301(2) shall include oral arguments or examination or cross examination of the witnesses, the words "Under the directions of the Public prosecutor" used in this section will be meaningless. Such wider interpretation of the word "act" is not warranted by the provisions of this section. The word "act" has been interpreted by the Supreme Court in the case of Ashwini Kumar Ghosh v. Arabindo Bose, reported in 1953 Supreme Court Report page 1, wherein the Supreme Court has said that the word "act" strictly speaking means taking of substantial steps in the course of proceeding in the Court, while pleading means oral submissions. I think, though written submission of the argument is provided in this section, with permission of the Court, the legislature has intended to restrict the pleading to the extent of submitting written arguments after a certain stage, by using the word "act" restricted to intend only to show that something is to be done by a person in the course of the trial. The words "under directions of the Public Prosecutor" must be construed in their ordinary meaning i.e. to say that the Public Prosecutor will guide and control the conduct of the prosecution before the Court. The word "act" must be given a limited meaning i.e. to take some steps only under the directions of the Public Prosecutor. The Public Prosecutor alone is the sole officer to decide the general policy of the trial. In view of this interpretation of the words used in Section 301(2), I think there is no right to ask for permission whatsoever to make oral arguments.
Hon'ble the Apex Court in the case of Shiv Kumar vs. Hukam Chand [(1999) 7 SCC 467] explained the position of law in details. The relevant observations are extracted hereunder :
"13 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 courts of criminal jurisdiction. This distinction can be discerned from employment of the words any court in Section 301. In view of the provision made in the succeeding section as for magistrate courts the insistence contained in Section 301(2) must be understood as applicable to all other courts without any exception. The first subsection empowers the Public Prosecutor to plead in the court without any written authority, provided he is in charge of the case. The second subsection, which is sought to be invoked by the appellant, imposes the curb on a counsel engaged by any 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 he 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.
From the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by any one other than the Public Prosecutor. The legislature reminds the State that 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. The 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, 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 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.
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 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.
An early decision of a Full Bench of the Allahabad High Court in QueenEmpress v. Durga (ILR 1894 Allahabad 84) has pinpointed the role of a Public Prosecutor as follows:
"It is the duty of a Public Prosecutor to conduct the case for the Crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the Crown, to see that justice is vindicated: and, in exercising his discretion as to the witnesses whom he should or should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or put into the witness box for cross examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favorable to the defence. If a Public Prosecutor is of opinion that a witness is a false witness or is likely to give false testimony if put into the witness box, he is not bound, in our opinion, to call that witness or to tender him for cross examination."
As we are in complete agreement with the observation of a Division Bench of the High Court of Andhra Pradesh in Medichetty Ramakistiah & Ors. v. The State of Andhra Pradesh (AIR 1959 A.P. 659) we deem it fit to extract the said observation:
"A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party."
Another Division Bench of the same High Court in re Bhupalli Malliah & ors. (AIR 1959 A.P. 477) had in fact deprecated the practice of Public Prosecutors sitting back and permitting private counsel to conduct prosecution, in the following terms: We would like to make it very clear that it is extremely undesirable and quite improper that a Public Prosecutor should be allowed to sit back, handing over the conduct of the case to a counsel, however eminent he may be, briefed by the complainant in the case.
Equally forceful is the observation of Bhimasankaram, J. for the Division Bench in Medichetty Ramakistiah (cited supra) which is worthy of quotation here:
"Unless, therefore, the control of the Public Prosecutor is there, the prosecution by a pleader for a private party may degenerate into a legalized means for wreaking private vengeance. The prosecution instead of being a fair and dispassionate presentation of the facts of the case for the determination of the Court, would be transformed into a battle between two parties in which one was trying to get better of the other, by whatever means available. It is true that in every case there is the overall control of the court in regard to the conduct of the case by either party. But it cannot extend to the point of ensuring that in all matters one party is fair to the other."
Thus, it is for the protection of the accused persons in Sessions trials (in India) that the provisions of Section 301 of the Cr.P.C. is made to have the case against him prosecuted only by a Public Prosecutor and not by a counsel engaged by the aggrieved private party.
The scheme envisaged in the Code of Criminal Procedure, no doubt, indicates that a person, who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the chargesheet was laid by them. Even the fact that the Court had taken cognizance of the offence is not sufficient to debar him from reaching the Court for ventilating his grievance. Even in the Sessions Court, the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Cr.P.C. I do not say for a moment that the original first informant or the victim, who is aggrieved by the offence involved in the case, is altogether debarred from participating in the trial. He can participate in the trial to the extent as provided under Section 301(2) of the Cr.P.C. It is always open for the applicant being the first informant and the victim to submit written arguments, and if such written arguments are tendered, the Court has a duty to consider such arguments before taking a decision. However, the first informant or the victim cannot, as a matter of right, assert that his counsel should also be permitted to make oral arguments over and above the arguments that may be canvassed by the Public Prosecutor. Even if the permission is granted, the role of the said counsel allowed to assist the Assistant Public Prosecutor is very much limited. The rein is still held by the Public Prosecutor. If the Court so permits, the assisting counsel can submit written arguments after the evidence is closed in the case. That is all. The section does not envisage any other authority or independent power for the counsel who is engaged to assist the Assistant Public Prosecutor. In other words, even after permission is granted for rendering assistance under Section 301(2) of the Cr. P.C. the responsibility for conduct of the prosecution continues to be with the Assistant Public Prosecutor. It naturally follows that he is the person who is to decide how the prosecution should proceed.
Hon'ble the Apex Court in the case of J. K. International v. State, AIR 2001 SC 1142 while interpreting the Sections 301 (2) and 302 Cr.P.C., held as under :-
"If a private person is aggrieved by the3 offence committed against him or against anyone in whom he is interested he can approach the Magistrate and seek to conduct the prosecution himself and it is open to the Magistrate to grant such permission if he thinks that the Court of justice would be better served in granting such permission. This wider amplitude is confined to the Magistrate's Courts only as the right of such private individual in the conduct of Sessions case is very much restricted and is made subject to the control of the Public Prosecutor."
Moreover, Section 301 Cr.P.C. has not been amended vide Act No.5 of 2008. The insertion in the statute book ,the proviso to Section 24 (8) added by Act No.5 of 2008, whether in any way, effects the provision of section 301, is sole question for consideration before the Court. Proviso added to section 24(8) Cr.P.C. provides that victim define in Section 2(wa) may be permitted to engage an advocate of his choice to assist the prosecution under this sub-section. Sub-section 8 provides appointment of Special Public Prosecutor, different from Public Persecutor appointed under Section 7 of Sub-section 24 of Cr.P.C. The basic distinction drawn in the statute by introducing the proviso that if the victim defined under Section 2(wa) Cr.P.C. is permitted to engage a lawyer he will acquire status of Special Public Prosecutor subject to riders imposed under the proviso.
In proviso added to Section 24(8) Cr.P.C the word used are "assist the prosecution" and not to 'assist the public Prosecutor' as mentioned in Section 301 Cr.P.C. There is difference in the scheme of two sections. From perusal of Sub-section 2 of section 301 Cr.P.C. made it clear that if in any case private person instruct a pleader to prosecute any person in any court even though the Public Prosecutor in charge of case shall conduct the prosecution and the pleader instructed shall act therein under the directions of the Public Prosecutor. Up to this stage no permission of court is needed for appointment of pleader by a private person. The permission is only required to the pleader if he want to file written argument in the case. However after insertion of proviso to Section 24(8) Cr.P.C. the court can permits a victims advocate to assist the prosecution. The status and position of Advocate engaged by the victim would be changed because in that situation the court at the very inception may permit the Advocate of the choice of the victim to participate in the proceeding and to assist the prosecution and not to the public prosecutor. Prosecution include investigation,enquiry,trial and appeal within the meaning of Section 24 Cr.P.C. Section 301 Cr.P.C. deals with only inquiry, trial or appeal. Inquiry has been defined in Section 2(g) Cr.P.C , means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. As such inquiry is different from investigation as defined in section 2(h) Cr.P.C.
Neither word 'prosecution' nor 'trial' has been defined in the Cr.P.C. Trial has been defined by the Apex Court in Union of India Vs. Major General Madan Lal Yadav [(1996) 4 SCC 127]. It means an act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. Meaning of trial changes in view of specific provision of the code. The expression 'trial' used in Section 306 Cr.P.C. includes both an 'inquiry' as well as 'trial' as held by the Apex Court in A.Devendran Vs. State of Tamilnadu [(1997) 11 SCC 720.
The prosecution has not been defined specifically in the light of proviso to Section 24(8) Cr.P.C. The meaning of word 'prosecution' as defined in Webster Dictionary, 3rd Edition is as follow;
"the carrying out of a plan, project, or course of action to or toward a specific end."
In view of the aforesaid definition the 'end' for which a plan or project is carried out is called prosecution. In respect of proviso to Section 24(8) Cr.P.C. prosecution in respect of an offence begin with putting the law into motion by any individual or sufferer of crime. The 'end' in a prosecution within the meaning of proviso to sub-section 8 of section 24 Cr.P.C. would be adjudication of guilt of an offender who is charged with commission of an offence in accordance with procedure established by law in a court constituted under this code. So the prosecution starts with giving information of commission of crime and continued during investigation or inquiry, trial of offender and if any appeal is filed finally end by an order passed in appeal. This whole process is the part of fair trial inbuilt in Article 21 of our Constitution. The word prosecution is also used in different sense in different situation. When word 'prosecution' is used in defining the parties to criminal case it is used for the party who is siding the victim. When it used in respect of an accused means pending proceeding to ascertain the guilt of the accused. When an offence is committed it certainly committed against the society but the sufferer is called victim. Victim has direct nexus with the damage caused to him but society may have a remote effect. The legislature for the first time insert provision for protection of the right of victim in the Criminal Procedure Code and specially keeping in view being the worst sufferer of crime. Thus, the victim should not be kept aloof from the judicial process in which the wrongdoers is undergoing the process of ascertainment of his guilt for wrong committed by him. In this judicial process, by means of amendment made by Act No.5 of 2008, the status of the victim has been improved from a silent expectator of proceeding before the court to a participant of the proceeding. Therefore the word used in the proviso added to Section 24(8) Cr.P.C. is to 'assist the prosecution' and not to assist the 'public prosecutor'. Therefore there is basic difference in between proviso to Section 24(8) and Section 301 Cr.P.C. It is true that section 301 Cr.P.C. has not been amended by Act No.5 of 2008 but if the principals of harmonies construction is applied while interpreting the different provision of same statute like proviso to section 24(8) and Section 301 Cr.P.C. , the letter and spirit inducted in proviso added to sub-Section 8 of Section 24 of the Cr.P.C. cannot be diluted by saying that no amendment has been incorporated in Section 301 Cr.P.C.
The whole scheme if taken into consideration for prosecution and trial of an accused the dominant role is played by the public prosecutor but by insertion of proviso to Section 24(8) Cr.P.C. the Court is now authorised to permit the victim to engage a lawyer of his choice to assist the prosecution. The prosecution of an offender is virtually carried out in the court of law constituted under some statute presided over by a judge and not by any party to the proceedings. The public prosecutors,the advocate of the accused or special counsel appointed by the aggrieved person or the Advocate engaged by a victim, all are officers of the court. They all assist the court to arrive at truth during prosecution of an accused . Therefore in section 24 or in section 301 phrase 'with the permission of court' is used. So, once the permission is accorded to the Advocate of the victim to assist the prosecution his assistance could not not be restricted to the terminology of Section 301,i.e. only to assist the prosecutor. The court in view of the same can permit to advance the oral argument too to the Advocate engaged by the victim apart from submission of the written argument. The importances of oral argument cannot be out weight by saying that right to written argument has been given in Section 301 Cr.P.C.
In Section 301 Cr.P.C there seems no previous permission to engage a private pleader by any private person even if he has no personal interest. The permission is required only if he intents to file the written argument. However in proviso to Section 24(8) Cr.P.C. permission is accorded to the Advocate of the choice of the victim to assist the prosecution and not to the public prosecutor.
Thus, Section 301 Cr.P.C does not say that oral argument cannot be permitted to an advocate engage by the victim. It only prohibits that if a private party engaged a pleader he can assist the public prosecutor and court may permit him to file the written argument. There is difference between the pleader and Advocate. Advocate is treated to be officer of the court and supposed to assist the court in arriving the truth, so, right to address the court to an Advocate cannot be curtailed while representing his client in the light of provisions of Advocates Act. In Poonam Vs. Sumit Tiwari AIR 2010 SC1385 their Lordship has discussed the importance of assistance of a lawyer in the light of section 35 of Advocates Act and observed that in absence of proper assistance to Court by the lawyer, there is no obligation on the part of the Court to decide the case, for the simple reason that unless the lawyer renders the proper assistance to the Court, the Court is not able to decide the case properly. It is not for the Court itself to decide the controversy. The counsel cannot just raise the issues in his petition and leave it to the Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the Court itself to find out what the points for determination can be and then proceed to give a decision on those points. In case counsel for the party is not able to render any assistance, the Court may decline to entertain the petition. Moreover if the petition is decided in such cases the judgment given may be violative of principles of natural justice as the opposite counsel would not "have a fair opportunity to answer the line of reasoning adopted" in this behalf. (See Zahira Habibulla H.Sheikh v. State of Gujrat,[(2004) 4 SCC 158] , M/S J.K. International Vs. State, 2001 Cr.L.J 1264 and Bhagwant Singh Vs. Commissioner of police, [(1985) 2 SCC 537] ) It will also be appropriate to have a glance to the relevant portion of Section 126 Evidence Act which reads as under:-
"No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil by or on behalf of his client .....
Provided that nothing in this Section shall protect from disclosure-
(i) any such communication made in furtherance of any illegal purpose;
........................ "
This rule of law is based on the principle that in the interests of justice it is necessary that no one who comes to seek redress or relief before the Tribunals of Justice should be handicapped in any way in placing his case at its best either before the civil or criminal courts by seeking the advice of trained lawyers. Human experience tells us that to present a case at its best the lawyer should know the whole truth and not only a part of truth. The saying that you should not conceal anything from your doctor or lawyer is based on this experience, for only by reposing this confidence the best results can be achieved.
At the same time it is human nature that one hesitates to disclose facts against one's own interests unless he is assured that his admission of such facts cannot be used against him. It was to remove this hesitation from the mind of the client that this rule of law was enacted. The client was to be given the fullest opportunity and latitude to make the best of his case. But it was inherent in the very nature of the right given to the client that it was restricted in its operation to the purpose of defending him or presenting his case and its protection extended no further.
In this regard a Division Bench of this Court vide judgment and order dated 28.11.2016 in Criminal Appeal No.276 of 2016 "Brijesh Singh vs. State of U.P." held as under :-
"7. The question arose for determination, at this stage of the case, is Whether Advocate engaged by the victim with the permission of the Court can be heard after the conclusion of the argument of Public Prosecutor in a criminal proceeding in assistance of prosecution ?
8. With a view to answer the aforesaid question, it is appropriate to look into the various provisions of Code of Criminal Procedure provided under Sections 2 (wa), 24 (8) and 301 (2) of the Code of Criminal Procedure. At this place, it is pertinent to mention that Sections 2 (wa) and proviso to Section 24 (8) of the Code of Criminal Procedure have been inserted in the Code of Criminal Procedure by the Amendment Act No. 5 of 2009, which become enforceable w.e.f. 31.12.2009. The aforesaid provisions reads as under :-
"2.(wa) ''victim' means a person who has sufferred any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ''victim' includes his or her guardian or legal heir.
24(8). The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:
[provided that the Court may permit the victim to engage an Advocate of this choice to assist the prosecution under this sub-section.] 301(2). If in any such case any private person instructs a pleader to presecute 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."
9. Thus, prior to amendment of the Code of Criminal Procedure, the only provision available in the Code of Criminal Procedure under which a private person can engage an Advocate in a criminal case was Section 301 (2) of the Code of Criminal Procedure. According to the aforesaid provision, an Advocate engaged by the private person in a criminal proceeding has limited role. He can only act in the case under the direction of Public Prosecutor and/or Assistant Public Prosecutor. He has no direct say in the prosecution of an accused.
10. Hon'ble Supreme Court has interpreted the aforesaid provision as contained in Section 301 (2) Cr.P.C. in the cases of Shiv Kumar vs. Hukum Chand and Another (supra), Sandeep Kumar Bafna vs. State of Maharashtra and Anr. (supra) and Dhariwal Industries Limited vs. Kishore Wadhwani and Ors. (supra) and held that " a private person has no vested right to conduct the prosecution".
11. In the aforesaid judgments, proviso to Section 24 (8) of the Code of Criminal Procedure has not been considered, because the same was not in issue.
12. It is worth mentioning that Amendment Act No. 5 of 2009 has been passed by the Parliament on the recommendation of Law Commission contained in its 154th report. In the said report, apart from recommending for introduction of various other provisions, the Law Commission had recommended for introduction various provisions keeping in view the principles of victimology.
13. From perusal of the objects and reasons of Amendment Act No. 5 of 2009, it appears that one of the object and reason is:- "at present, the victims are the worst sufferers in a crime and they don't have much role in the Court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system."
14. Thus, from perusal of aforesaid object and reason of Amendment Act No. 5 of 2009, it is clear that prior to the above amendment, the victim of a crime has no role to perform in a criminal proceeding. Thus, with a view to provide active role to the victim in criminal proceeding, various provisions inserted in the Code of Criminal Procedure. Therefore, after amendment of the Code of Criminal Procedure in the year 2009, scenario has changed and the victim can seek the permission of the Court to engage an Advocate of his/her choice to assist the prosecution. Section 24(8) of the Code of Criminal Procedure, prior to amendment gave power to the Central Government or the State Government to engage an Advocate as Special Public Prosecutor in a case or in a group of cases to conduct the prosecution. After the amendment, the Court has also been given power to permit the victim of the crime to engage an Advocate of his/her choice to assist the prosecution in any particular case or group of cases. Thus, in our view, if the court gives permission to the victim to engage an Advocate of his/her choice as per the aforesaid provision contained under the proviso to Section 24(8) of the Code of Criminal Procedure, such Advocates acquires the status of Special Public Prosecutor.
15. In that circumstance, in our considered view, the Advocate, engaged by the victim with permission of the Court, has right to make argument in aid or support of the argument made by Public Prosecutor, with a view to assist the prosecution. Thus, we agree with the order of the learned Single Judge passed in Lokesh Singh vs. State of U.P. (supra).
16. Prior to amendment in the Code of Criminal Procedure, Hon'ble Supreme Court in the case of Delhi Domestic Working Women's Forum vs. Union of India and Ors. [1995 1 SCC 14] had issued direction for providing legal assistance to the victim of sexual assault even at the stage of investigation. In the said case, Hon'ble Supreme Court has further directed for preparing a list of Advocates, willing to act in such type of cases, where the victims are the women or the victim of sexual assault.
17. In the case of R. Rathinam vs. State By DSP, District Crime Branch, Madurai District, Madurai and Another [(2000) 2 SCC 391], the Hon'ble Supreme Court held that frame of sub-Section 2 of Section 439 Cr.P.C. indicates that it is a power conferred on the Court. It is further held that there was nothing to indicate that the said power could be exercised only if the State or Investigating agency or Public Prosecutor move an application. It was further held that the power so vested in the High Court can be invoked on behest of any aggrieved party. Thus, if informant (victim) can file an application for cancellation of bail, then, in our view he/she can also oppose the bail prayer of accused and/or convict.
18. Hon'ble Supreme Court has observed in paragraph 32 of Sandeep Kumar Bafna vs. State of Maharashtra and Anr. (supra) that:-
"32. ........The complainant or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the trial so that his interests in the prosecution are not prejudiced or jeopardised. It seems to us that constant or even frequent interference in the prosecution should not be encouraged as it will have a deleterious impact on its impartiality. If the Magistrate or Sessions Judge harbours the opinion that the prosecution is likely to fail, prudence would prompt that the complainant or informant or aggrieved party be given an informal hearing."
19. Thus, in view of the aforesaid observations of Hon'ble Supreme Court, if any adverse order in any proceeding is going to be passed against the prosecution, it is in the interest of justice to hear the Advocate of the informant/complainant in assistance of the prosecution.
20. In the instant case, the complainant/informant is the father of the deceased. Thus, as per the definition of victim, the informant of this case is a victim. In that view of the matter, he will be highly prejudiced if we ultimately decide to grant bail to the appellant, who has been convicted and sentenced by the trial court for committing murder of his son. In that view of the matter, it is in the interest of justice to hear the counsel for the informant after conclusion of the argument made by the Public Prosecutor. Thus, we find no merit in the objection raised by the counsel for the appellant.
21. Accordingly, the preliminary objection raised by the counsel for the appellant against the prayer of learned counsel for the informant (informant) to hear him in the bail proceeding of the appellant, is hereby rejected.
22. Accordingly, we permit the learned counsel for the informant/complainant (victim) to make his argument after conclusion of the argument of Public Prosecutor."
In view of the above said discussion we held as under:-
(a) In any appeal filed under Section 374 Cr.P.C. by the accused persons challenging the conviction and sentence passed by trial Court and if a bail application filed under Section 389 Cr.P.C. is also filed, G.A./A.G.A. etc. on behalf of the State Government can file written objections and make arguments.
(b) If a person has already been engaged as G.A/A.G.A. etc. and subsequently, he has been discharging his duties from the said capacity, then there is no legal impediment in his way to appear on behalf of the complainant in an appeal which has been filed by the accused-appellant against his conviction under Section 374 Cr.P.C. or to oppose in the bail application filed under Section 389 Cr.P.C but only with the permission of the Court otherwise he shall only assists the State Government.
(c) If G.A./A.G.A. etc. who has been appointed as per under Section 24 (1) of Cr.P.C.by the State Government, filed any objections/ conduct of the case filed on behalf of the State in an appeal filed by the accused-persons against his conviction or in a bail application under Section 389 Cr.P.C., subsequently, disengaged from the said capacity, then in that circumstances,he cannot appear on behalf of the complainant.
Reverting to the facts of the present case, we find that Sri Sharad Dixit was appointed as Additional Government Advocate in view the provisions as provided under Section 24(1) of the Code of Criminal Procedure read with L. R. Manual and had conducted the case but no document was filed by his signature in the capacity of Additional Government Advocate. After his disengaged from the State Counsel, there is no legal impediment or embargo in his way to appear on behalf of the complainant subject to condition mentioned above.
Now we proceed to hear the short term bail moved on behalf of the accused appellant/ Suneel Kumar Singh.
After hearing learned counsel for the parties as well as taking into consideration the facts on record, we hereby release the accused-appellant/ Suneel Kumar Singh on short term bail in the aforesaid sessions trial for 22.2.2019 and 23.2.2019 under police custody for attending the marriage ceremony of his niece on 22.2.2019 at 10:00 a.m. Superintendent District Jail, concerned is directed to make all the necessary arrangement with the help of Superintendent of Police concerned to proceed the accused appellant in police custody in order to enable him to get the benefit of short term bail, however the accused-appellant shall come back to jail on 23.2.2019 at 4:00 p.m. (Vikas Kunvar Srivastav,J.) (Anil Kumar,J.) Order Date :- 18.2.2019 dk/