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Tutorial 1

Rachel filed a police complaint against Ross for molesting her in the restroom of a

nightclub in South Delhi. During the course of their investigations, the police

recorded the statement of the only known eyewitness to the incident who stated

that Ross did in fact drag Rachel into the restroom by physically overpowering her.

The Police concluded their investigations and registered a case against Ross for

‘assaulting a woman with the intent to outrage her modesty’ under Section 354 of

the Indian Penal Code (IPC). One day before Ross’s trial was set to commence at

the Saket District Court complex, the Public Prosecutor is approached by Joey who

states that he was in a cubicle in the restroom and overheard the exchange between

Ross and Rachel. Joey wants to give a written statement to the police but the

Public Prosecutor tells Joey not to as his testimony is not relevant to the case; the

Public Prosecutor also withholds this information at trial. Ross is convicted and

sentenced to 3 and half years in prison by a Metropolitan Magistrate’s Court

presided over by a woman. Subsequently, Joey visits Ross at Rohini Jail and

informs him of his exchange with the Public Prosecutor. Ross decides to engage

you as his counsel and asks for your advice on the following issues:

1. Can the conviction be set aside on the basis of the Public Prosecutor’s

conduct?

2. Did the Metropolitan Magistrate have the jurisdiction to try the case and

pass the sentence that she did?

3. Despite the fact that there were several male Magistrates available, a female

Magistrate was allocated the case. Is this course of action justifiable under

the CrPC?

4. At the time of framing the charge, Ross wanted time to engage a different

lawyer to represent him. However, his request was denied by the Court as

the same lawyer had appeared for him over five times previously in hearings

related to the framing of charges. Can this denial by the Court be challenged

under Section 303?

5. Did Joey have a duty under Section 39 to assist the Police and the

Magistrate?

Please come prepared to answer these questions in the tutorial.

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This extract is taken from Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 at

pp.73-9

Role of Public Prosecutor and his duty of disclosure

183. It was argued by Mr Ram Jethmalani, the learned Senior Counsel for the appellant

Manu Sharma that the Prosecutor had suppressed vital evidence relating to the laboratory

reports which were useful for the defence in order to establish the innocence of the

accused. The learned Senior Counsel further argued that the Prosecutor had not complied

with his duty thus violating fair trial and vitiating the trial itself.

184. It is thus important for us to address the role of a Prosecutor, disclosure

requirements if placed by the Prosecutor and the role of a Judge in a criminal trial.

185. A Public Prosecutor is appointed under Section 24 of the Code of Criminal

Procedure. Thus, Public Prosecutor is a statutory office of high regard. This Court has

observed the role of a Prosecutor in Shiv Kumar v. Hukam Chand [(1999) 7 SCC 467:

1999 SCC (Cri) 1277] as follows: (SCC p. 472, para 13)

“13. From the scheme of the Code the legislative intention is manifestly clear that

prosecution in a Sessions Court cannot be conducted by anyone other than the 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 a conviction in the case 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, the Public Prosecutor

has the added responsibility to bring it to the notice of the court if it comes to his

knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus

on bringing the case to conviction even if it is not a fit case to be so convicted. That is the

reason why Parliament applied a bridle on him and subjected his role strictly to the

instructions given by the Public Prosecutor.”

186. This Court has also held that the Prosecutor does not represent the investigating

agencies, but the State. This Court in Hitendra Vishnu Thakur v. State of

Maharashtra [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] held: (SCC pp. 630-31, para 23)

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“23. … A Public Prosecutor is an important officer of the State Government and is

appointed by the State under the Criminal Procedure Code. He is not a part of the

investigating agency. He is an independent statutory authority. The public prosecutor is

expected to independently apply his mind to the request of the investigating agency

before submitting a report to the court for extension of time with a view to enable the

investigating agency to complete the investigation. He is not merely a post office or a

forwarding agency. A Public Prosecutor may or may not agree with the reasons given by

the investigating officer for seeking extension of time and may find that the investigation

had not progressed in the proper manner or that there has been unnecessary, deliberate or

avoidable delay in completing the investigation.”

187. Therefore, a Public Prosecutor has wider set of duties than to merely ensure that the

accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts

are brought before the court in order for the determination of truth and justice for all the

parties including the victims. It must be noted that these duties do not allow the

Prosecutor to be lax in any of his duties as against the accused.

This extract is taken from Ashish Chadha vs. Asha Kumari AIR 2012 SC 431

8. …Learned Counsel for the Appellant submitted that the High Court has erroneously

come to the conclusion that the first Respondent had been denied an opportunity of being

heard. In fact the first Respondent was given adequate hearing. At the penultimate stage

an application for change of counsel was made by her. Counsel submitted that this shows

mala fides and motive to delay the proceedings…

11. Counsel (for Respondent No. 1) submitted that the trial court did not allow

Respondent No. 1 to engage a counsel and framed the charge in the absence of her

counsel which has caused great prejudice to her… (Counsel submitted) Respondent No. 1

was deprived of her legitimate right under Section 303 of the Code to engage a counsel of

her choice…

16. We are also not impressed by the submission that Respondent No. 1 was denied her

right to be defended by a lawyer of her choice. From the impugned order and from the

order of learned Special Judge it is clear that the Special Judge conducted the proceedings

for framing charge on 6.12.2003, 12.12.2003, 3.1.2004, 14.1.2004, 7.2.2004, 15.3.2004,

5.4.2004, 26.4.2004, 10.5.2004, 4.6.2004, 12.7.2004, 6.12.2004, 8.12.2004, 10.12.2004

and 4.1.2005. From the Special Judge's order it is clear that Mr. Malhotra was appearing

for Respondent No. 1 and also for her husband Brijender Singh. It is pertinent to note that

during the course of the hearing the State filed its reply on 4.12.2004. The case was

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posted for consideration of charge on 8.12.2004. On 8.12.2004 co-accused Brijender

Singh raised an objection that copy of the reply dated 7.2.2004 was not supplied to him.

He was permitted to inspect the record. Shri Malhotra submitted that he was not in a

position to argue the case on charge. The request for adjournment was disallowed. Shri

Malhotra then submitted that he was ready to argue the case even on behalf of

Respondent No. 1. In fact, he advanced arguments. He, however, stated that he would

make further submissions on 10.12.2004 after inspection of the record. The case was then

adjourned to 10.12.2004. On that day neither the counsel for the first Respondent was

present nor was the first Respondent present. Respondent No. 1 made a telegraphic

request for adjournment on the ground that her mother was ill. That application was

rejected. On 4.1.2005, Shri Malhotra who had been appearing for Respondent No. 1

stated that he had no instructions to appear for Respondent No. 1. Respondent No. 1 filed

an application that she wanted to be defended by a counsel of her choice. Learned Special

Judge rejected the prayer and framed the charge observing that Shri Malhotra had

advanced arguments on behalf of Respondent No. 1 and since State's reply dated

4.12.2004 did not disclose any new facts adjournment was not necessary. Learned

Special Judge rejected the contention of Respondent No. 1 that Shri Malhotra was not her

counsel because order sheet of 8.12.2004 made it clear that Shri Malhotra had moved

application for exemption from personal appearance on behalf of Respondent No. 1.

17. The manner in which the proceedings were conducted on behalf of Respondent No. 1

leads us to conclude that Respondent No. 1 wanted to delay the framing of charges. Shri

Malhotra had appeared for Respondent No. 1 and also for her husband Brijender Singh.

He had made exemption application on behalf of Respondent No. 1. Respondent No. 1's

desire to change the horse in the midstream was obviously not genuine but was a dilatory

tactic. The High Court wrongly came to the conclusion that Respondent No. 1 was not

given a chance to engage a counsel of her choice. We have no hesitation in observing

that, in this case, there is no violation of Section 303 of the Code…