Bar & Bench () · SYNOPSIS This special leave ... application under Section 294 CrPC to receive...
Transcript of Bar & Bench () · SYNOPSIS This special leave ... application under Section 294 CrPC to receive...
SYNOPSIS
This special leave petition has been preferred against the judgment
and final order of the Hon’ble High Court of Judicature at Hyderabad
for the State of Telangana and the State of Andhra Pradesh, dated
25.10.2017 in Criminal Petition No. 7108 of 2017, wherein the
Hon’ble High Court, on the judicial side, allowed the Criminal
Petition filed by the de facto complainant, thereby, allowing the de
facto complainant to conduct the prosecution independently, by
engaging an advocate for the purpose of cross examination of all
defence witnesses and arguments etc. in C.C. No. 993/2014 on the
file of the Hon’ble Metropolitan Magistrate, Cyberabad at Malkajgiri.
The Petitioner-High Court seeks to challenge the impugned
judgment dated 25.10.2017 to the extent that:
a) it holds that the even in a Sessions Case a victim can be
permitted to conduct prosecution, either independently or in
addition to the Public Prosecutor, by putting up further
questions in evidence during trial or in any enquiry or other
proceedings, including in any application to file counters or
objections and participate, in view of the proviso to Section
24(8) of the Code of Criminal Procedure, 1973, despite the
provisions of Section 225 of CrPC and
b) it directed the Registry to issue circular instructions to
all the Subordinate Courts within the Jurisdiction of the
Petitioner- High Court to the same effect.
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The relevant paragraph of the impugned judgment dated
25.10.2017, of the Hon’ble High Court of Hyderabad for the
State of Telangana and the State of Andhra Pradesh, reads as
follows:
“8. Thus the word prosecution thereby means proceeding either by way of indictment or information in criminal Courts to put the offender upon trial. The proviso to section 24(8) of the amended Act No.5 of 2009 of Cr.P.C seeks that the Court may permit the victim to engage an advocate
of his or her choice to assist the prosecution. Here to assist the prosecution does not mean mere assisting the Public Prosecutor under Section 301 Cr.P.C., but for conducting the prosecution itself by the victim or defacto complainant in person or through private advocate of his or her choice either under Section 24(8) proviso or under Section 302 Cr.P.C. as the case may be, but for to clarify further that irrespective of what is stated in Sections 225 & 226 Cr.P.C., even in a Sessions case, a victim can be permitted under Section 24(8) proviso of Cr.P.C. to conduct prosecution either independently or in addition to the public prosecutor by putting further questions in evidence during trial or in any enquiry or other proceedings including in any application to file counters or objections and participate”
……
(emphasis supplied) The Hon’ble High Court was also pleased to mark a copy of the
impugned judgment to the Registry, directing as follows:
“To. 1…
2…
3..
4. The Hon’ble Registrar General, High Court of Judicature at Hyderabad.
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(The Registry is directed to issue circular to all subordinate Courts within the jurisdiction of this Court to follow the expression particularly the observations in Paras 8 to 12)
5. The Hon’ble Registrar (Judicial), the High Court of Judicature at Hyderabad.
(The Registry is directed to issue circular to all subordinate Courts within the jurisdiction of this Court to follow the expression particularly the observations in Paras 8 to 12) 6……..”
It is submitted that the aforementioned directions of the Hon’ble
High Court, with respect to prosecutions conducted before a
Court of Sessions, are not inconsonance with provisions of
Section 225 of Cr.P.C, and the judgments of this Hon’ble Court.
Section 225 of the Code of Criminal Procedure reads as follows:
“Section 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.
This Hon’ble Court has explained in the case of Shiv Kumar v.
Hukam Chand and Anr reported in (1999) 7 SCC 467, the
dangers of allowing the role of the Public Prosecutor to shrink
in cases before the Court of Sessions. The relevant portion of
the judgment has been extracted hereinbelow, for the
convenience of this Hon’ble Court:
“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,
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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 sub-section empowers the Public Prosecutor to plead in the court without any written authority, provided he is in charge of the case. The second sub-section, 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.
14. 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 force 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 frees 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.
15. 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
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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.”
(emphasis supplied)
This Hon’ble Court has observed regarding the limited role of the
informant or a private party in a Court of Sessions in the case of
Dhariwal Industries Ltd. vs. Kishore Wadhwani and Ors .
reported in (2016)10SCC378. The relevant portion of the judgment
reads as follows:
18. We have already explained the distinction between Sections 301 and 302 Code of Criminal Procedure. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by him is required to act under the directions of public prosecutor. As far as Section 302 Code of Criminal Procedure is concerned, power is conferred on the Magistrate to grant permission to the complainant to conduct the prosecution independently.
(emphasis supplied)
Hence, this SLP.
LIST OF DATES
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24.2.2010
The Respondent No. 1- Mahabunnisa Begum
filed an FIR No. 75/2010 in the Police Station
Neredmet, District Cyberabad, under Section
3 and 4 of the Dowry Prohibition Act, of 1961
and Section 498 A of IPC, alleging dowry
demands and harassment at the hand of the
Respondent Nos. 3 and 4 and other members
of their family. The concerned FIR bearing No.
75 of 2010 has been annexed herewith and
marked as Annexure P-1 (Pgs. ).
Charges were framed under Section 3 and 4
of the Dowry Prohibition Act, and under
Section 498 A of the Indian Penal Code
P W 1 to P W 4 were examined by accused
persons and the Statement of the accused
under Section 313 of CrPC was recorded.
The Respondents/ accused persons filed an
application under Section 294 CrPC to receive
some more documents to prove their case.
This was allowed by the Trial Court, and the
matter was posted for Defence Evidence.
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2.9.2014 An application was filed by the Respondent
No. 1/ De facto Complainant under Section
301(2) of CrPC bearing Crl M.P No 1961/2014
to permit her to engage a private advocate for
prosecution assistance.
8.09.2014 The Ld. Trial Court, i.e., the Court of the
Metropolitan Magistrate Cyberabad at
Malkajgiri, allowed this application filed by the
Respondent No. 1, allowing her to assist the
A.P.P by filing written arguments.
1.6.2017 That the Respondent No. 1 filed a Petition Crl.
M.P No. 505 of 2017 in the C.C. No. 993/2014
before the Ld. Trial Court under Section 302
and 24(8) of CrPC. The relevant portion of this
Petition has been extracted below for the
convenience of this Hon’ble Court:
“As the Learned A.P.P is over burdened with prosecution works of Four Courts and in this case both the sides are relying upon voluminous documents, have to submit specifically on all those documents and detailed cross examination is necessary in all aspects….
Therefore in the above stated circumstances, the Petitioner/ De facto
complainant prays this Hon’ble Court may be pleased to permit her to conduct the prosecution independently through a private advocate for cross examination of all defense witnesses and arguments and all other proceedings in C.C. No.
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993 of 2014 on the file of this Hon’ble Court in the interests of justice.”
A copy of the Petition, dated 1.6.2017, bearing
Crl. M.P No. 505 of 2017 in the C.C. No.
993/2014, filed in the Court of the Metropolitan
Magistrate, Cyberabad, at Malkajgiri, has
been annexed herewith and marked as
Annexure P-2 (Pgs. ).
8.6.2017 A counter was filed in the Crl. M. P No. 505 of
2017 by the Respondent-accused persons
before the Ld. Trial Court. A copy of this
Counter Affidavit, dated 8.6.2017, filed by the
Respondents/ Accused persons before the
Court of the Ld. Metropolitan Magistrate,
Cyberabad, at Malkajgiri has been annexed
herewith and marked as Annexure P-3 (Pgs.
)
A Counter was filed on behalf of the
Prosecution in the Crl. M. P No. 505 of 2017,
before the Ld. Trial Court, which stated as
follows:
“It further submits that S. 301 (2) of Cr.P.C states that “If in any such case any private person instructs a pleader to prosecute any person in any court, the Public Prosecutor or Assistant Public
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Prosecutor in charge of the case shall conduct the prosecution, and the pleaser so instructed shall act therein under the directions of the Public Prosecutor or the Assistant Public Prosecutor...”
It is further submitted that as admitted by the Petitioner in the present Petition that earlier petition filed by the defacto complainant under Section 301(2) Cr. P.C vide Crl. MP No. 1961 of 2014 dated 2.9.2014 to permit her to engage private advocate for prosecution assistance was allowed by the Hon’ble Court. This Hon’ble Court allowed the Petition to the extent of assisting the Learned A.P.P to file Written Arguments by order dated 8.9.2014.
It is further submitted that in view of S.
301(2) of Cr.P.C the prosecution can be conducted only by Public Prosecutor or Assistant Public Prosecutor. Private Pleader, if permitted shall act under the directions of the Prosecutor and may submit written arguments after the evidence is closed in the case.
It is further submitted that in view of the above, the private counsel has no locus to plead on behalf of the prosecution and conduct the case and hence the present Petition has no maintainability and is liable to be dismissed.
…..” A copy of the Counter filed on behalf of the
Prosecution in the Crl. M. P No. 505 of 2017
before the Ld. Metropolitan Magistrate,
Cyberabad, at Malkajgiri has been annexed
herewith and marked as Annexure P-4 (Pgs.
).
24.7.2017 That the Ld. Metropolitan Magistrate,
Cyberabad, at Malkajgiri, partly allowed the
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Crl. M. P No. 505 of 2017, in the following
words:
“6. POINT: “Whether Petitioner is entitled to appoint
an advocate on her behalf”
7. As seen from the averments of the
Petition petitioner wants to appoint an advocate on her behalf to conduct prosecution. Section 302 Cr.P.C clearly provides that the victim may be permitted to conduct prosecution which means an advocate also.
8. However the Petitioner also stated that she is entitled to engage an advocate as per Section 24(8) provisio of Cr. P.C but the said Section is with regard to appointment of Addl.
Prosecutor and Public Prosecutor but not with regard to permitting them to engage an advocate before the Magistrate Courts. The said proviso Section 24(8) is regard to High Court and District Judge Courts but not to Magistrate Court and the relevant provision is Section 25 Cr. P C where there is no such proviso to engage an advocate by the victim.
The Petitioner also relied on certain
citations in support of her case but the
same is related to Section 24(8) Cr.P.C as such there are not relevant to this case. Therefore, in view of the above discussion this court holds to allow petitioner to engage an advocate on her behalf to assist prosecution at every state of proceedings. However, the Petitioner shall not step into the shoes of the prosecution and shall not conduct the prosecution independently.
Accordingly, petition is allowed in part.”
A copy of the order dated 24.7.2017, passed
by the Ld. Metropolitan Magistrate,
Cyberabad, at Malkajgiri, in the Crl. M.P No.
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505/2017 is annexed herewith and marked
as Annexure P-5 (Pgs. )
9.8.2017
Aggrieved the Respondent No. 1 filed a
Petition under Section 482 of Cr.P.C to
quash the order dated 24.7.2017 in Crl. M.P
No. 505 of 2017 in CC No. 993/2014 on the
file of the Ld. Metropolitan Magistrate,
Cyberabad at Malkajgiri. A copy of the
Petition Crl. P 7108 of 2017, filed by the
Respondent No. 1 on 9.8.2017, before the
Hon’ble High Court of Judicature at
Hyderabad for the State of Telangana and for
the State of Andhra Pradesh has been
annexed herewith and marked as Annexure
P-6 (Pgs. ).
25.10.2017 The Hon’ble High Court, vide the impugned
judgment, allowed the Criminal Petition No.
7108 of 2017, setting aside the order of the
Lower Court, and permitting the de facto
complainant/ Respondent No. 1 to engage
a private advocate and conduct the
prosecution by further examination of any
witness in addition to what APP conducts,
if any.
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The Hon’ble High Court, vide the impugned
judgment, also held as follows:
8. Thus the word prosecution thereby means proceeding either by way of indictment or information in criminal
Courts to put the offender upon trial. The proviso to section 24(8) of the amended Act No.5 of 2009 of Cr.P.C seeks that the Court may permit the victim to engage an advocate of his or her choice to assist the prosecution. Here to assist the prosecution does not mean mere assisting the Public Prosecutor under Section 301 Cr.P.C., but for conducting the prosecution itself by the victim or defacto complainant in person or through private advocate of his or her
choice either under Section 24(8) proviso or under Section 302 Cr.P.C. as the case may be, but for to clarify further that irrespective of what is stated in Sections 225 & 226 Cr.P.C., even in a Sessions case, a victim can be permitted under Section 24(8) proviso of Cr.P.C. to conduct prosecution either independently or in addition to the public prosecutor by putting further questions in evidence during trial or in any enquiry or other proceedings including in any application to file counters or objections and participate”
…… To. 1…
2…
3..
4. The Hon’ble Registrar General,
High Court of Judicature at Hyderabad.
(The Registry is directed to issue
circular to all subordinate Courts within the jurisdiction of this Court
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to follow the expression particularly the observations in Paras 8 to 12)
5. The Hon’ble Registrar (Judicial),
the High Court of Judicature at Hyderabad.
(The Registry is directed to issue
circular to all subordinate Courts within the jurisdiction of this Court to follow the expression particularly the observations in Paras 8 to 12)
6… …..”
Hence, this SLP.
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IN THE SUPREME COURT OF INDIA
UNDER ORDER XXII RULE 2 (1)
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA
SPECIAL LEAVE PETITION (Crl) NO. /2017
POSITION OF THE PARTIES IN
BEFORE HON’BLE HIGH COURT
BEFORE THIS HON’BLE COURT
1
The High Court of
Judicature at Hyderabad
For the State of Telangana
and the State of
Andhra Pradesh
Through its Registrar
General
Not a party
Petitioner
Versus
1. Smt. Mahabunnisa Begum
w/o Mr. Mohammed Basha
Aged about 32 years Occ. House Wife, R/o H. No. 33-86/4, S.V.O Colony
R.K Puram, Secundrabad
Petitioner Proforma Respondent-
1
2. The State of Telangana
Through Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, High Court Premises, Hyderabad
Respondent No.
1
Proforma
Respondent No.2
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TO,
THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH:
1. This special leave petition has been preferred against the
judgment and final order of the Hon’ble High Court of
Judicature at Hyderabad for the State of Telangana and
the State of Andhra Pradesh, dated 25.10.2017 in Criminal
Petition No. 7108 of 2017, wherein the Hon’ble High Court,
on the judicial side, allowed the Criminal Petition filed by
the de facto complainant.
1A. That no LPA or Writ Appeal challenging the impugned the
judgment dated 25.10.2017 has been filed by the
Petitioner before any Hon’ble High Court. That while the
Petitioner in the present SLP was not a party before the
Hon’ble High Court, the Petitioner is affected by the
3. Mr. Mohammed Basha
s/o K. Dastagir, R/o H.No. 1-5-239/2 Plot No. 34, Srinagar Colony, Old Alwal, Secunderabad.
Respondent No.
2.
Proforma Respondent No.3
4. Mahboob Bee, w/o Muzaffar Ali, R/o H.No 1-5-239/ 2, Plot No. 34, Srinagar Colony, Old Alwal, Secunderabad.
Respondent No.
3
Proforma Respondent
No.4
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directions given to the registry of the Petitioner-High Court
in the impugned judgment. An application for permission
to file an SLP has been annexed along the present SLP.
2. QUESTIONS OF LAW
A) Whether a de facto complainant has the locus to appoint
a counsel and plead on behalf of the prosecution in a case
to be tried before a Sessions Court?
B) Whether the Hon’ble High Court, in the impugned
judgment, failed to appreciate the provisions of Section
225 of the Code of Criminal Procedure which mandates
that in every trial before a Court of Session, the prosecution
shall be conducted by a Public Prosecutor?
C) Whether the Hon’ble High Court, in the impugned
judgment, erred in reading down provisions of Section
225 and Section 226 of the Code of Criminal
Procedure, when the same should have been
harmoniously constructed with the provisions of
Section 24(8) of the Cr.P.C?
D) Whether the Hon’ble High Court, in the impugned
judgment, failed to appreciate the decisions of this
Hon’ble Court, in Shiv Kumar v. Hukam Chand and
Anr reported in (1999) 7 SCC 467 and in Dhariwal
Industries Ltd. vs. Kishore Wadhwani and Ors .
reported in (2016)10SCC378, which held that the role of
the informant or the private party is limited during the
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prosecution of a case in a Court of Session, and that the
scheme of the Code and the legislative intent make it
manifestly clear that prosecution in a Sessions court
cannot be conducted by anyone other than the Public
Prosecutor?
E) Whether, prosecution in a Sessions case can be
conducted by anyone other than the Public
Prosecutor?
F) Whether the Hon’ble High Court, vide the impugned
judgment, failed to appreciate that Section 302 of the
Cr.P.C only pertains to conduct of cases before a
magistrate, and the absence of an analogous provision
with respect to cases before a Court of Sessions makes
the legislative intent clear?
3. DECLARATION UNDER SECTION 3 (2)
That the petitioner states that no other petition seeking leave
to appeal has been filed by them against the impugned
judgment and final order.
4. DECLARATION IN TERMS OF RULE 5:
The annexures P-1 to P-10 produced along with the special
leave petition are true copies of the pleadings/documents
which formed parts of the record of the case in the Courts
below against whose order the leave to appeal is sought for in
this petition.
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5. GROUNDS
5.1 The Brief Facts of the Case:
i. On 24.2.2010 The Respondent No. 1- Mahabunnisa
Begum filed an FIR No. 75/2010 in the Police Station
Neredmet, District Cyberabad, under Section 3 and 4 of
the Dowry Prohibition Act, of 1961 and Section 498 A of
IPC, alleging dowry demands and harassment at the hand
of the Respondent Nos. 3 and 4 and other members of
their family.
ii. In this regard a charge-sheet was filed and charges
were framed under Section 3 and 4 of the Dowry
Prohibition Act, and under Section 498 A of the Indian
Penal Code. P W 1 to P W 4 were examined by accused
persons and the Statement of the accused under Section
313 of CrPC was recorded. Thereafter, the Respondents/
accused persons filed an application under Section 294
CrPC to receive some more documents to prove their
case. This was allowed by the Trial Court, and the matter
was posted for Defence Evidence.
iii. On 2.9.2014 an application was filed by the
Respondent No. 1/ De facto Complainant under Section
301(2) of CrPC bearing Crl M.P No 1961/2014 to permit
her to engage a private advocate for prosecution
assistance. Section 301 of the CrPC reads as follows:
“Section 301 - Appearance by public prosecutors
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(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 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.”
iv. On 8.9.2014 the Ld. Trial Court, i.e., the Court of the
Metropolitan Magistrate Cyberabad at Malkajgiri, allowed
this application filed by the Respondent No. 1, allowing her
to assist the A.P.P by filing written arguments.
v. That on 1.6.2017, the Respondent No. 1 filed a Petition
Crl. M.P No. 505 of 2017 in the C.C. No. 993/2014 before
the Ld. Trial Court under Section 302 and 24(8) of CrPC.
The relevant portion of this Petition has been extracted
below for the convenience of this Hon’ble Court:
“As the Learned A.P.P is over burdened with prosecution works of Four Courts and in this case both the sides are relying upon voluminous documents, have to submit specifically on all those documents and detailed cross examination is necessary in all aspects…
Therefore, in the above stated circumstances, the Petitioner/ De facto complainant prays this
Hon’ble Court may be pleased to permit her to conduct the prosecution independently through a private advocate for cross examination of all defense witnesses and arguments and all other proceedings in C.C. No. 993 of 2014 on the file of this Hon’ble Court in the interests of justice.”
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vi. The contents of Section 24(8) and Section 302 of the
Code of Criminal Procedure have been extracted below
for the convenience of this Hon’ble Court:
“24. Public Prosecutors
…..
….
(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.
****
“Section 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.”
vii. A counter was filed in the Crl. M. P No. 505 of 2017 by
the Respondent-accused persons before the Ld. Trial
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Court. The prosecution also filed a Counter in the Crl. M.P
No. 505 of 2017, wherein it stated as follows:
“It further submits that S. 301 (2) of Cr.P.C states that “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 pleaser so instructed shall act therein under the directions of the Public Prosecutor or the Assistant Public
Prosecutor...”
It is further submitted that as admitted by the Petitioner in the present Petition that earlier petition filed by the defacto complainant under Section 301(2) Cr. P.C vide Crl. MP No. 1961 of 2014 dated 2.9.2014 to permit her to engage private advocate for prosecution assistance was allowed by the Hon’ble Court. This Hon’ble Court allowed the Petition to the extent of assisting the Learned A.P.P to file Written Arguments by order dated 8.9.2014.
It is further submitted that in view of S. 301(2) of Cr.P.C
the prosecution can be conducted only by Public Prosecutor or Assistant Public Prosecutor. Private Pleader, if permitted shall act under the directions of the Prosecutor and may submit written arguments after the evidence is closed in the case.
It is further submitted that in view of the above, the
private counsel has no locus to plead on behalf of the prosecution and conduct the case and hence the present Petition has no maintainability and is liable to be dismissed.
…..”
viii. That on 24.7.2017 the Ld. Metropolitan Magistrate,
Cyberabad, at Malkajgiri, partly allowed the Crl. M. P No.
505 of 2017, in the following words:
“6. POINT: “Whether Petitioner is entitled to appoint an advocate on her behalf”
7. As seen from the averments of the Petition petitioner
wants to appoint an advocate on her behalf to conduct
prosecution. Section 302 Cr.P.C clearly provides that
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the victim may be permitted to conduct prosecution which means an advocate also.
8. However the Petitioner also stated that she is entitled to engage an advocate as per Section 24(8) provisio of Cr. P.C but the said Section is with regard to appointment of Addl. Prosecutor and Public Prosecutor
but not with regard to permitting them to engage an advocate before the Magistrate Courts. The said proviso Section 24(8) is regard to High Court and District Judge Courts but not to Magistrate Court and the relevant provision is Section 25 Cr. P C where there is no such proviso to engage an advocate by the victim.
The Petitioner also relied on certain citations in support of her case but the same is related to Section 24(8) Cr.P.C as such there are not relevant to this case. Therefore, in view of the above discussion this court holds to allow petitioner to engage an advocate on her behalf to assist prosecution at every state of
proceedings. However, the Petitioner shall not step into the shoes of the prosecution and shall not conduct the prosecution independently.
Accordingly, petition is allowed in part.”
ix. Aggrieved by the this order the Respondent No. 1
filed a Petition under Section 482 of Cr.P.C to quash
the order dated 24.7.2017 in Crl. M.P No. 505 of 2017
in CC No. 993/2014 on the file of the Ld. Metropolitan
Magistrate, Cyberabad at Malkajgiri.
x. The Hon’ble The Hon’ble High Court, vide the
impugned judgment, allowed the Criminal Petition No.
7108 of 2017, setting aside the order of the Lower
Court, and permitting the de facto complainant/
Respondent No. 1 to engage a private advocate and
conduct the prosecution by further examination of any
witness in addition to what APP conducts, if any.
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xi. The Hon’ble High Court, vide the impugned
judgment, also held as follows:
8. Thus the word prosecution thereby means proceeding either by way of indictment or information in criminal Courts to put the offender
upon trial. The proviso to section 24(8) of the amended Act No.5 of 2009 of Cr.P.C seeks that the Court may permit the victim to engage an advocate of his or her choice to assist the prosecution. Here to assist the prosecution does not mean mere assisting the Public Prosecutor under Section 301 Cr.P.C., but for conducting the prosecution itself by the victim or defacto complainant in person or through private advocate of his or her choice either under Section 24(8) proviso or under Section 302 Cr.P.C. as the case may be, but for to clarify further that irrespective of what is stated in Sections 225 & 226 Cr.P.C., even in a Sessions case, a victim can be permitted under Section 24(8) proviso of Cr.P.C. to conduct prosecution either independently or in addition to the public prosecutor by putting further questions in evidence during trial or in any enquiry or other proceedings including in any application to file counters or objections and participate”
……
(emphasis supplied)
xii. The Hon’ble High Court was also pleased to mark a
copy of the impugned judgment to the Registry,
directing as follows:
“To.
1…
2…
3..
4. The Hon’ble Registrar General, High Court of Judicature at Hyderabad.
(The Registry is directed to issue circular to all subordinate Courts within the jurisdiction of this Court to follow the
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expression particularly the observations in Paras 8 to 12)
5. The Hon’ble Registrar (Judicial), the High Court of Judicature at Hyderabad.
(The Registry is directed to issue circular to all subordinate Courts within the jurisdiction of this Court to follow the expression particularly the observations in Paras 8 to 12) 6……..”
xiii. That when this matter was placed before the
Administrative Committee of Hon’ble Judges of the High
Court of Judicature at Hyderabad, for the State of
Telangana and the State of Andhra Pradesh, the
committee resolved to file an SLP against the impugned
judgment to the extent that it directed that even in a
Sessions Case a victim can be permitted to conduct
prosecution, either independently or in addition to the
Public Prosecutor, by putting up further questions in
evidence during trial or in any enquiry or other
proceedings, including in any application to file counters
or objections and participate, in view of the proviso to
Section 24(8) of the Code of Criminal Procedure, 1973,
despite the provisions of Section 225 of Cr.P.C, and to the
extent that the impugned judgment directed the Registry
to issue circular instructions to all the Subordinate Courts
within the Jurisdiction of the Petitioner- High Court to the
same effect.
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xiv. This Hon’ble Court has explained in the case of Shiv
Kumar v. Hukam Chand and Anr reported in (1999)
7 SCC 467, the dangers of allowing the role of the
Public Prosecutor to shrink in cases before the Court
of Sessions.
xv. Further, this Hon’ble Court has made observations on
the limited role of the informant or a private party in a Court
of Sessions in the case of Dhariwal Industries Ltd. vs.
Kishore Wadhwani and Ors. reported in
(2016)10SCC378. Hence, this SLP is being filed on the
following grounds:
5.2 BECAUSE the de facto complainant has no locus to
appoint a counsel and plead on behalf of the prosecution
in a case to be tried before a Sessions Court, in view of
the provisions of Section 225 and Section 226 of the Code
of Criminal Procedure. The Sections have been extracted
hereinbelow for the convenience of this Hon’ble Court:
“Section 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.
……
Section 226 - Opening case for prosecution
When the Accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought
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against the accused and stating by what evidence he proposes to prove the guilt of the accused.”
5.3 Because a Public Prosecutor being effaced from the
conduct of a prosecution, or his role being entirely taken
over by a private counsel, may cause prejudice to the
rights of the accused to have a free and fair trial. Hence,
the provisions of the aforementioned Sections make it
clear that the legislative mandate is for the conduct of a
prosecution to be in the hands of the Public Prosecutor,
in a case before the Sessions Court.
5.4 Because Section 302 of the Cr.P.C only pertains to
conduct of cases before a magistrate, and the absence
of an analogous provision with respect to cases before
a Court of Sessions makes the legislative intent clear.
While anyone can conduct a prosecution in a case
before a Magistrate, the statute does not permit this in
a case before the Sessions Court. In the latter, any
counsel engaged by the complainant, will only assist
the prosecution. An examination of the scope of
Section 301 and Section 302 of the Cr. P.C, with
Section 24(8) of the Cr.P.C would further illustrate the
different scope of the role of the complainant or victim
in cases before the Sessions Court and Magistrate. A
chart has been provided below, for the convenience of
this Hon’ble Court:
Section 301 Cr.P.C Section 302 Cr.P.C Section 24(8) of the Cr.P.C
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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 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.
(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.
24. Public Prosecutors
……
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.]
5.5 BECAUSE this Hon’ble Court has remarked on the
dangers of allowing the role of the Public Prosecutor to
shrink in prosecutions before the Court of Sessions. This
Hon’ble Court held as follows in the case of Shiv Kumar
v. Hukam Chand and Anr reported in (1999) 7 SCC
467:
“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 sub-section empowers the Public Prosecutor to plead in the court without any written authority,
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provided he is in charge of the case. The second sub-section, 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.
14. 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 force 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 frees 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.
15. 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
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would render the legislative mandate in Section 225 of the Code a dead letter.”
(emphasis supplied)
5.6 BECAUSE this Hon’ble Court has in the case of Dhariwal
Industries Ltd. vs. Kishore Wadhwani and Ors.
reported in (2016)10SCC378, observed on the limited
role of the informant or the private party in a case in a
Court of Session, in the following words:
18. We have already explained the distinction between Sections 301 and 302 Code of Criminal Procedure. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by him is required to act under the directions of public prosecutor. As far as Section 302 Code of Criminal Procedure is concerned, power is conferred on the Magistrate to grant permission to the complainant to conduct the
prosecution independently.
(emphasis supplied)
5.7 BECAUSE the Hon’ble High Court, in the impugned
judgment, did not appreciate the aforementioned
decisions of this Hon’ble Court, and read down the
provisions of Section 225 and Section 226 of the Code of
Criminal Procedure. It is submitted that the role
contemplated for the Public Prosecutor in prosecutions
before a Court of Sessions, is well defined, and the
rationale behind it is the right of accused persons to a free
and fair Trial. In these circumstances, a reading down of
the provisions of Section 225 and 226, in the manner seen
in the impugned judgment would have serious
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implications for Trials Conducted all over the country, and
may prejudice the rights of accused persons.
6. GROUNDS FOR INTERIM RELIEF
a) That the directions in the impugned judgment pertaining to
permitting a victim to conduct the prosecution, even in
Sessions cases, either independently or in addition to the
Public Prosecutor, by putting up further questions in
evidence during trial or in any enquiry or other proceedings,
including in any application to file counters or objections and
participate, in view of the proviso to Section 24(8) of the
Code of Criminal Procedure, 1973, despite the provisions
of Section 225 of the Cr.P.C, will have a wide ranging
impact on Trials Conducted across the State, particularly if
circulars to that effect are sent to all subordinate courts
within the jurisdiction of the High Court.
b) Because if these directions are finally set aside by this
Hon’ble Court, grave prejudice and or irreparable may have
been caused to accused persons in the interim.
c) Because the balance of convenience lies in favour of
granting an interim stay to the impugned judgment to the
extent of directions regarding the conduct of prosecutions
before a Court of Sessions.
d) Because prima facie the directions in the impugned
judgment pertaining to the conduct of prosecutions in
sessions cases, are contrary to the law laid down by this
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Hon’ble Court in the cases of Dhariwal Industries Ltd.
vs. Kishore Wadhwani and Ors. reported in
(2016)10SCC378 and Shiv Kumar v. Hukam Chand
and Anr reported in (1999) 7 SCC 467.
7. MAIN PRAYER
It is most respectfully prayed that this Hon’ble Court may
graciously be pleased to:
(A) Grant Special Leave to appeal against the judgment and
order dated 25.10.2017 passed by the Hon’ble High Court
of Judicature at Hyderabad for the State of Telangana and
the State of Andhra Pradesh, in the Criminal Petition No.
7108 of 2017.
(B) Pass any other order and /or direction as this Hon’ble
Court may deem fit and proper be passed in favour of the
respondent and against the petitioner in the interest of
justice.
8. PRAYER FOR INTERIM RELIEF
It is most respectfully prayed that this Hon’ble Court may
graciously be pleased to:
a) Grant stay of the observations in the judgment and order
dated 25.10.2017 passed by the Hon’ble High Court of
Judicature at Hyderabad for the State of Telangana and the
State of Andhra Pradesh, in the Criminal Petition No. 7108
of 2017, to the extent that it permits the victim to conduct
the prosecution, even in Sessions cases, either
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independently or in addition to the Public Prosecutor, by
putting up further questions in evidence during trial or in any
enquiry or other proceedings, including in any application to
file counters or objections and participate, in view of the
proviso to Section 24(8) of the Code of Criminal Procedure,
1973, contrary to the provisions of Section 225 of the Cr.P.
C and;
b) Pass any other order.
DRAWN BY:
Srishti Agnihotri
(ADVOCATE)
PLACE: NEW DELHI FILED BY:
[ANTIHA SHENOY] Advocate for the petitioners
DRAWN ON: 24.12.2017 FILED ON: .12.2017
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