Document Fragment View

Matching Fragments

5. Learned Public Prosecutor submits referring to Section 225 of the CrPC, that prosecution in Sessions Case shall be conducted only by the Public Prosecutor and involvement of the informant or any other private person in a sessions trial is very minimal. It is also submitted referring to Section 301 of the CrPC that even if a private party instructs a lawyer to prosecute any person in any court, such lawyer engaged or instructed by a private person may act, only under the direction and supervision of the Public Prosecutor or Asstt. Public Prosecutor in charge of the case and may with the permission of the court, submit written argument after the evidence is closed. Learned P.P. also referred to the proviso to Section 24(8) of the CrPC, to submit, that even a victim is required to take permission of the court to engage an advocate of his choice to assist the Public Prosecutor. Therefore, the participatory rule of the informant or any private person including the victim in a sessions case is circumscribed, and as such, the informant or any other private person does not have an absolute or independent right to be impleaded as a party or served with a notice in respect of an appeal filed by the accused against a judgment of conviction rendered by the court of sessions, submits Mr. Choudhury. The learned Public Prosecutor further contended, that if the informant or any other private person, including the victim, engages a counsel to assist the public prosecutor during the trial, and submits written argument as per section 301(2) CrPC with the permission of the court, then only, the informant or any other private person participating in the trial with the permission of the court, may be heard in an appeal against the conviction filed by the accused. It is also submitted that Rule 1 (A) of the Criminal Rules and Order(Chapter-II) does not provide for issuance of notice to the informant in an appeal against conviction filed before the High Court u/s 374 (2) of the CrPC. Thus, the contention of the learned counsel (s) for both the sides is that in an appeal against conviction, the accused is statutorily under no obligation to implead the informant as a party respondent or to serve him/her with notice, and therefore, it should not be mandatory for the accused to implead the informant or to serve him with notice in an appeal against conviction.

2 (WA)" "victim" means a person, who has suffered any loss or any injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes is or her guardian or legal heir."

8. Section 225 Cr.P.C. provides that every trial before the court of sessions shall be conducted only by a public prosecutor. At the same time the provisions of Section 301 (2), 302 (1) and also the proviso to Section 24 (8) of the CrPC makes it appear, that a victim or a private person has a locus to appear and participate in a proceeding initiated by the State or at the instance of the accused. However, the expression "the pleader so instructed shall act therein under the direction of the public prosecutor"............ "may, with the permission of the court, submit written argument", appearing in Section 301 (2) CrPC, the expression "may permit the prosecution to be conducted by any person...." in section 302(1) and the expression "court may permit the victim to engage an advocate of his choice to assist the public prosecutor" in the proviso to Section 24(8) CrPC makes it abundantly clear that the right of the victim or any other private party to participate in the prosecution of a criminal case or a proceeding where State is the prosecution or a proceeding initiated at the instance of the accused is subject to permission of the court and the discretion is vested with the court to regulate the participatory role of the private person, and as such, the right of the victim or any other private person, to be heard in a criminal proceeding initiated by the State or the accused is not absolute or unfettered.

Page No.# 6/14

9. It may also be noticed that there is a distinction between Section 302(1) CrPC, which deals with the enquiry or trial before the Magistrate and Section 301 (2) of the CrPC, which refers to "any court" including High Court. When in an enquiry or trial before a Magistrate, permission is granted to any private person to conduct the prosecution, such person may conduct the prosecution personally or by engaging a counsel. In an enquiry or trial before a Magistrate, once the permission is granted u/s 302 (1) CrPC, the private person, or the lawyer engaged by him can conduct the prosecution independently. However, unlike the provision of Section 302(1), the lawyers engaged by any private person or the 'victim', as contemplated in Section 301(2) or the proviso to Section 24 (8) CrPC respectively shall act only under the direction and control of the public prosecutor or Asstt. Public Prosecutor in charge of the case. Thus, the role of such advocate engaged by the 'victim' or any other private person shall be limited only to assist the Public Prosecutor or the Asstt. Public Prosecutor in charge of the case, or to submit written argument after the evidence is closed, with the permission of the court. Such lawyer engaged by private person cannot conduct prosecution independently. Section 225 CrPC mandates that every trial before the court of sessions shall be conducted only by a public prosecutor. Therefore, necessarily in an appeal filed by the accused against conviction u/s 374 (2) CrPC before the High Court, the role of an advocate engaged by the victim or any other private person shall be governed by Section 301(2) CrPC and proviso to section 24(8) of the CrPC, meaning thereby that the role of the advocate appearing at the instruction of the "victim" or any other private party in the appeal filed by the accused against conviction shall be minimal and subject to discretion of the court. The proviso to Section 372 CrPC inserted by the Amendment Act of 2009, however, confers an independent and distinct right upon the victim to prefer an appeal against acquittal or against an order of conviction for lesser offence or inadequate compensation and the term "victim" has been defined by clause (wa) of section 2 of the CrPC

19. We therefore, conclude, that the High Court in the impugned order correctly approached the issue and it does not warrant any interference........"

Page No.# 8/14

11. In J.K. International Vs. State (Govt. of NCT of Delhi) and Ors. (2001) 3 SCC 462, the Apex Court observed that, when a case is charge-sheeted by police, the accused has no obligation to made the informant a party in a petition for quashing the criminal proceeding, inasmuch as, it is the predominantly concern of the State to continue the proceeding. But when a criminal proceeding is sought to be quashed, it would be negation of justice to him, if he is foreclosed from being heard even after he makes a request to the court in that behalf . The factual matrix of the case was that the police took cognizance of offence u/s 420/406/120-B IPC against the appellant and issued process on the basis of the charge-sheet submitted by police. The accused/appellant approached the High Court for quashing the proceeding, wherein the informant was not made a party. Therefore, the informant filed an application for impleadment which was rejected by the High Court. Having elaborately discussed the purport of Section 301(2) and 302 (1) as well as Section 225 of the CrPC the Apex Court observed that, when a limited role of a private person is permitted even in sessions case, the private person, who is "aggrieved" is not wiped off from the proceeding in the criminal court, merely because, the case was charge-sheeted by police.