Jharkhand High Court
Akash Mahli vs The State Of Jharkhand ...... Opposite ... on 10 November, 2020
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[CRIMINAL MISCELLANEOUS JURISDICTION]
B.A. No. 7546 of 2020
.......
Akash Mahli ...... Petitioner
Versus
The State of Jharkhand ...... Opposite Party
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
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For the Petitioner : Mr. Kripa Shankar Nanda, Advocate
For the State : Mr. Shekhar Sinha, P.P
04/Dated: 10/11/2020:
Learned counsel for the petitioner has given an undertaking to comply the order dated 03.10.2020 with regard to removal of the defect(s). Heard, learned counsel for the petitioner, Mr. Kripa Shankar Nanda, and learned counsel for the State, Mr. Shekhar Sinha.
It appears that in compliance of the dated 03.10.2020, affidavit has been separately filed by the Directorate of Prosecution and the Superintendent of Police, Gumla.
From perusal of para 8 and annexure-B at page 16 of the counter-affidavit filed by the Directorate of Prosecution, it appears that neither the police department nor the conducting Additional Public Prosecutors are vigilant with respect to their duty. On the one hand, the police has submitted charge-sheet without examining the eye witness named in the FIR under Section 161 Cr.P.C. and the Additional Public Prosecutors after framing of the charge also did not comply the provisions of Section 231 of the Cr.P.C., which shows that Public Prosecutor and Additional Public Prosecutors were not vigilant. It is only when this court has pointed out and asked a counter-affidavit on 03.10.2020 then only a petition was filed before the trial court on 21.10.2020, which has been brought on record as annexure- C at page 18.
The Public Prosecutor has its own independence; and the Public Prosecutor has been conferred an independent role under the provisions of CrPC and he cannot become a post office in the hands of the authority's defamation, without scrutinising whether a case is made out or not. The Hon'ble Apex court in the catena of judgments enumerated the role of public prosecutors for assisting the courts for achieving justice and their independency. The Hon'ble Apex court in the case of K.K. Mishra v. State of M.P., (2018) 6 SCC 676 : (2018) 3 SCC (Cri) 397 : 2018 SCC OnLine SC 374 at page 684 has stated that :-
"17. The Public Prosecutor in terms of the statutory scheme under the Criminal Procedure Code plays an important role. He is supposed to be an independent person and apply his mind to the materials placed before him. As held in Bairam Muralidhar case [Bairam Muralidhar v. State of A.P., (2014) 10 SCC 380 : (2015) 1 SCC (Cri) 42] : (SCC p. 392, para 18) -2- "18. ... He cannot remain oblivious to his lawful obligations under the Code. He is required to constantly remember his duty to the court as well as his duty to the collective."
The Hon'ble Apex court in the case of Jayendra Saraswati Swamigal (3) v. State of T.N., (2008) 10 SCC 180 : (2009) 1 SCC (Cri) 27 observed that :-
16. The Public Prosecutor plays a key role during trial of a sessions case.
Though the Sessions Judge has got a supervising control over the entire trial of the case, it is the Public Prosecutor who decides who are the witnesses to be examined on the side of the prosecution and which witness is to be given up, or which witness is to be recalled for further examination. For proper conduct of a criminal case the Public Prosecutor plays a vital role. It may also be noticed herein that under Section 225 CrPC during every trial before the Court of Session, the prosecution shall be conducted by the Public Prosecutor and as regards withdrawal also, the Public Prosecutor in charge of the case has to make the application for withdrawal of prosecution as per Section 321 CrPC. In case of acquittal of the accused the State Government may direct the Public Prosecutor to file an appeal.
Further, the Apex Court in the case of Navinchandra N. Majithia v. State of Meghalaya, (2000) 8 SCC 323 : 2000 SCC (Cri) 1510 at page 328 and paras 13, 14, 15 and 16 which are as follows:-
13. A Division Bench of the Madras High Court had pointed to that object of the statutory investigation in Muddamma Malla Reddi, Re [1954 Cri LJ 167 (Mad)] through the following observations:
"The investigating police are primarily the guardians of the liberty of innocent persons. A heavy responsibility devolves on them of seeing that innocent persons are not charged on irresponsible and false implication. There is a duty cast on the investigating police to scrutinize a first complaint in which number of persons are implicated with rigorous care and to refrain from building up a case on its basis unless satisfied of its truth."
14. In P. Sirajuddin v. State of Madras [(1970) 1 SCC 595 : 1970 SCC (Cri) 240 : (1970) 3 SCR 931] this Court said thus, after referring to various provisions in the Code dealing with investigation: (SCC pp. 602-03, para 19) "19. All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case, however serious the crime and however incriminating the circumstances may be against a person supposed to be guilty of a crime. The Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the crime before the lodging of a charge-sheet. Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it."
15. The said observations were followed by this Court in State of Rajasthan v. Gurcharandas Chadha [(1980) 1 SCC 250 : 1980 SCC (Cri) 208] .
16. The Code does not recognise private investigating agency. If any person is interested in hiring any such private agency, he may do so at his own risk and cost, but such investigation would not be regarded as investigation made under law. Any evidence collected in such private investigation and any conclusion reached by such investigators cannot be presented by Public Prosecutor in any trial. Of course it may be possible for the defence to present such evidence. In this context, we may refer to a recent decision of this Court R. Sarala v. T.S. Velu [(2000) 4 SCC 459 : 2000 SCC (Cri) 823] . This Court said that even a Public Prosecutor cannot be officially involved during the stage of investigation. The following observations made by this Court in the said decision will be useful: (SCC p. 461, para 2) "2. Investigation and prosecution are two different facets in the administration of criminal justice. The role of a Public Prosecutor is inside the court, whereas investigation is outside the court. Normally the role of a Public Prosecutor commences after the investigating agency presents the case in the court on culmination of investigation. Its exception is that the Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage.
-3-Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek the opinion of a Public Prosecutor under the orders of the court."
Further, the Apex Court has in the case of Amarinder Singh v. Parkash Singh Badal, (2009) 6 SCC 260 : (2009) 2 SCC (Cri) 971 has held that :-
50. We are satisfied that the Presiding Officer of the Special Court is conscious of his power and how to conduct a fair trial at the same place. We are also of the opinion that the Public Prosecutor cannot act on the dictates of the State Government, he has to act objectively as he is also an officer of the court. The Special Court is free to assess whether the prosecution has established its case.
The Hon'ble Apex Court in the case of Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288 : 1987 SCC (Cri) 82 has held at page 328, paras 27, 45 and 71, which are profitably quoted hereunder:-
27. Now there can be no doubt that prosecution of an offender who is alleged to have committed an offence is primarily the responsibility of the executive. It is the executive which is vested with the power to file a charge-sheet and initiate a prosecution. This power is conferred on the executive with a view to protecting the society against offenders who disturb the peace and tranquillity of the society by committing offences.
Of course it is left to the court to decide whether to take cognizance of the offences set out in the charge-sheet but the filing of the charge-sheet and initiation of the prosecution is solely within the responsibility of the executive. When the prosecution is initiated by filing a charge-sheet the Public Prosecutor comes into the picture. Of course, even before the charge-sheet is filed, the investigating authorities may seek the advice of the Public Prosecutor in regard to the prosecution of the accused but it is not obligatory on the investigating authorities to do so. The Public Prosecutor comes on the scene as soon as the charge-sheet is filed and he appears and argues the case on behalf of the prosecution. It is the State through the investigating authorities which files a charge-sheet and initiates the prosecution and the Public Prosecutor is essentially counsel for the State for conducting the prosecution on behalf of the State. The expression "Public Prosecutor" is defined in Section 2 clause (u) to mean "any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor". Section 24 provides for the appointment of a Public Prosecutor:
sub-section (1) of Section 24 states that "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". (emphasis added). Sub- section (3) of Section 24 enacts that for every District, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district and under sub-section (7) of that section a person is eligible for being appointed as a Public Prosecutor or an Additional Public Prosecutor only if he has been in practice as an advocate for not less than 7 years. Thus the Public Prosecutor appointed by the State Government conducts the prosecution on behalf of the State Government and the Public Prosecutor appointed by the Central Government does so on behalf of the Central Government. It is undoubtedly true that the Public Prosecutor is an officer of the court, as indeed every advocate practising before the court is, and he owes an obligation to the court to be fair and just: he must not introduce any personal interest in the prosecution nor must he be anxious to secure conviction at any cost. He must present the case on behalf of the prosecution fairly and objectively and as pointed out by this Court in State of Bihar v. Ram Naresh Pandey [(1976) 4 SCC 250 : 1976 SCC (Cri) 584 : (1977) 1 SCR 335] he is bound to assist the court with his fairly considered view and the fair exercise of his judgment. But at the same time it must be noted that he conducts the prosecution on behalf of the Central Government or the State Government, as the case may be, and he is an advocate acting on behalf of the Central Government or the State Government which has launched the prosecution. We are therefore of the view that there is nothing wrong if the Government takes a decision to withdraw from the prosecution and communicate such direction to the Public Prosecutor. The Public Prosecutor would inter alia consider the grounds on which the Government has taken the decision to withdraw from the prosecution and if he is satisfied that those grounds are legitimate, he may file an application for withdrawal from the prosecution. If on the other hand he takes the view that the grounds which -4- have been given by the Government are not legitimate he has two options available to him. He may inform the Government that in his opinion, the grounds which have weighed with the Government are not valid and that he should be relieved from the case and if this request of his is not granted, he may tender his resignation. Or else, he may make an application for withdrawal from the prosecution as directed by the Government and at the hearing of the application he may offer his considered view to the court that the application is not sustainable on the grounds set out by him and leave it to the court to reject the application. We do not think there is anything wrong in the Public Prosecutor being advised or directed by the Government to file an application for withdrawal from the prosecution and the application for withdrawal made by him pursuant to such direction or advice is not necessarily vitiated. The Public Prosecutor can of course come to his own independent decision that the prosecution should be withdrawn but ordinarily if he is a wise and sensible person he will not apply for withdrawal without consulting the Government because it is the government which has launched the prosecution and is prosecuting the accused. Theoretically, of course, he can make an application for withdrawal from the prosecution without consulting the Government and he cannot be accused of any illegality for doing so and the court may give its consent for such withdrawal but in that event the Public Prosecutor would render the risk of incurring the displeasure of the Government which has appointed him. If the Public Prosecutor seeks the permission of the Government for withdrawal from the prosecution and the Government grants such permission to him and on the basis of such permission he applies for withdrawal the application cannot be said to be vitiated. The proviso to Section 321 in fact contemplates in so many terms that in certain categories of offences the Public Prosecutor appointed by the State Government cannot move the court for its consent to withdraw from the prosecution without the permission of the Central Government. There is no danger of abuse or misuse of power by the Government inherent in this process because there are two principal safeguards against any such abuse or misuse of power by the Government: one is that the application must be based on grounds which advance public justice and the other is that there can be no withdrawal without the consent of the court.
45. In the circumstances of this case I find it difficult to say that the Public Prosecutor had not applied his mind to the case or had conducted himself in an improper way. If in the light of the material before him the Public Prosecutor has taken the view that there was no prospect of securing a conviction of the accused it cannot be said that his view is an unreasonable one. We should bear in mind the nature of the role of a Public Prosecutor. He is not a persecutor. He is the representative not of an ordinary party to a controversy, but of sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in a peculiar and very definite sense the servant of the land the twofold aim of which is that guilt shall not escape or innocent suffer. He may prosecute with earnest vigour and indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate one to bring about a just one.
(See Berger v. United States [295 US 78] ). It is a privilege of an accused that he should be prosecuted by a Public Prosecutor in all cases involving heinous charges whenever the State undertakes prosecution. The judgment of a Public Prosecutor under Section 321 of the Code of Criminal Procedure, 1973 cannot be lightly interfered with unless the court comes to the conclusion that he has not applied his mind or that his decision is not bona fide.
71. The Public Prosecutor should normally be credited with fairness in exercise of his power under Section 321, when there is no attack against him of having acted in an improper manner. He had before him the State Government's communication of the policy taken by it. He had before him the case diary statements and other materials. He perused them before filing the application. Thus his part under Section 321 in this case has been performed strictly in conformity with this section. The question that remains then is whether the grounds urged by him in support of withdrawal were sufficient in law. The application clearly shows that Shri Sinha applied his mind to the facts of the case. One would normally not expect a more detailed statement in an application for withdrawal than the one contained in the application in question, when one keeps in view the scope of Section 321 and the wide language it uses. The plea that there was -5- lack of application of mind by the Public Prosecutor has only to be rejected in this case.
It appears from the counter-affidavit filed by the Directorate of Prosecution that they have not stated about the compliance of Section 25A (7) Cr.P.C. nor about their infrastructure and logistic support provided to Directorate and Prosecution. Even no specific duty has been assigned to the Deputy Directors as it appears from perusal of office order as contained in Memo No.373 dated 09.09.2020 issued by Directorate of Prosecution.
It is relevant to mention here that Directorate of Prosecution has to work is compliance and provision of Section 25A (7) Cr.P.C. and this order cannot be termed to be issued under the provisions of Section 25A (7) Cr.P.C. It appears from para 15 of the counter-affidavit filed by the Directorate of Prosecution that 'Jharkhand Abhiyojan Sewa Niyamwali' has been drafted and was sent before the Government on the basis of recommendation made by a committee constituted vide notification no.749 dated 13.02.2017 of the Department of Home.
Under such impression this Court directs the Directorate of Prosecution to file a fresh affidavit in detail in this regard with regard to their joining, the rules framed for their work, the infrastructure given by the Government and the role that they have to play on behalf of the State and logistic support to meet challenge in performing duties.
The Home Secretary, Government of Jharkhand has also filed an affidavit stating therein at para 9 that power and function of Directorate of Prosecution and Deputy Directorate of Prosecution and the area for which each Deputy Director have been appointed shall be, as such, as the State Government may by notification specify.
Further in para 10 of the affidavit filed by the Home Secretary, it has been submitted that with a view to define power and function by virtue of Section 25A (7) Cr.P.C., 1973, the department of Home answering- opposite party (Home Department) has constituted a committee and in the said committee, Directorate Prosecution is the Member Secretary.
Further in para 12 in the affidavit filed by the Home Secretary, Government of Jharkhand they have given about the number of work with regard to the performance of Directorate of Prosecution. This Court fails to accept such distribution of work rather surprised to know that even though Directorate of Prosecution has been constituted in the year, 2016, Jharkhand -6- Abhiyojan Sewa Niyamwali and the rule governing their functioning has been formulated by the committee in the year, 2017, but till date no action has been taken in this regard meaning thereby that Directorate of Prosecution are not being allow to work under provisions of Section 25A (7) Cr.P.C and a big question remains as who shall be responsible for failure of the criminal cases in the State of Jharkhand.
Under the aforesaid circumstances, the Home Secretary, Government of Jharkhand is directed to file further affidavit regarding the stage of said Niyamwali pending before the Government. The infrastructure and logistic support given to the Directorate of Prosecution, whether the Directorate of Prosecution has been asked to co-ordinate with police department by their agency i.e. Public Prosecutor or Additional Public Prosecutors so that such lacuna, which has been pointed out by this Court may not crop up in other cases.
Put up this case after four weeks.
Under the aforesaid circumstances, the Law Secretary, Government of Jharkhand, the Home Secretary, Government of Jharkhand, Director General of Police, Government of Jharkhand and Directorate of Prosecution, Government of Jharkhand are hereby directed to convene a meeting so that in future such lacuna should not crop up by mistake or by deliberate attempt of the investigating officers.
It is expected that affidavit must be filed within a period of four weeks. So far the regular bail application of the petitioner is concerned, the same is also adjourned so as to pass an order by the learned court below on the petition filed on 21.10.2020.
( Kailash Prasad Deo, J.) Sandeep/R.S.