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PETITIONER:

SHIV KUMAR

Vs.

RESPONDENT:

HUKAM CHAND AND ANR.

DATE OF JUDGMENT: 30/08/1999

BENCH:

S.P.Kurdukar, K.T.Thomas, N.Santosh Hegde

JUDGMENT:

THOMAS,J

It is as well for the protection of accused persons in

sessions trials (in India) that provision is made to have

the case against him prosecuted only by a Public Prosecutor

and not by any counsel engaged by the aggrieved private

party. Fairness to the accused who faces prosecution is the

raison detre of the legislative insistence on that score.

In this case, appellant is aggrieved because a counsel

engaged by him was not allowed by the High Court to conduct

prosecution in spite of obtaining a consent from the Public

Prosecutor concerned. First respondent was the accused in

the sessions trial wherein appellant wanted his counsels

active role to be played. Appellant and respondent are

advocates practicing at the same station. The grievance of

the appellant developed in the following fact situation:

Appellant is the brother of five sisters, and the

youngest among them, Suman, had secured creditable academic

laurels. She was given in marriage to Dr.Dinesh Kumar Gupta

(the son of the respondent). But about 4 months after her

marriage she met with a tragic death by burns. On a

complaint lodged by the appellant, FIR under Section 302 and

120-B of the Indian Penal Code (IPC) was registered by the

local police against the respondent. But after completion

of the investigation a charge-sheet was laid against him for

the offence under Section 304-B of the Indian Penal Code.

Appellant, on his part, engaged Shri R.C. Gugnani,

advocate, to appear for him in the sessions court during

trial of the case. On 1.7.1996 when appellant was to be

examined as a witness for prosecution, Shri R.C. Gugnani,

advocate ventured to conduct the chief examination of that

witness. It was objected to by the counsel for the accused

on the premise that a private counsel cannot conduct

prosecution in a sessions trial. Appellant then moved an

application on the same day, the relevant portion of which

reads thus:

That the Public Prosecutor has no objection if the

case is conducted by Shri R.C. Gugnani, advocate. That as

per the prevailing practice being followed by this Honble

Court and as per provisions of section 301(2) Cr.P.C. my

counsel has a right to conduct the case under the directions

of the Public Prosecutor. It is, therefore, prayed that in

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view of the facts stated above, necessary permission may

please be given to the applicant for conducting the case

under the directions of the Public Prosecutor.

It seems, the Public Prosecutor in the trial court

endorsed the said application. The trial court passed an

order thereon, the material portion of which reads thus: I

accept the application and allow Shri R.C. Gugnani,

advocate of the complainant to conduct under the

supervision, guidance and control of the public prosecutor,

while conducting the same case and the public prosecutor

shall retain with himself the control over the proceedings.

Accused was not prepared to have his case prosecuted

by the complainants counsel and hence he approached the

High Court in revision. The impugned order of the High

Court was passed by a Single Judge. The operative portion

of the said order reads thus:

I allow this revision and direct that the lawyer

appointed by the complainant or private person in this case

shall act under the directions from the Public Prosecutor

and may with the permission of the court submit written

arguments after evidence is closed in the case. I further

direct that the Public Prosecutor in charge of the case

shall conduct the prosecution. Revision petition is

disposed of accordingly.

Learned counsel for the appellant informed us that

trial in the case is over by now. Nonetheless he pleaded

for consideration of the issue as he feels that a decision

thereon by this Court is necessary for future guidance also.

He contended that Section 302(2) of the Code of Criminal

Procedure (for short the Code) must be so construed as to

enable the pleader of an aggrieved private person to conduct

the prosecution in as best a manner as he deems fit.

Section 301 of the Code reads thus:

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 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 he

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.

Section 302 of the Code has also some significance in

this context and hence that is also extracted below: 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.

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(2) Any person conducting the prosecution may do so

personally or by a pleader.

It must be noted that the latter provision is intended

only for magistrate courts. It enables the magistrate to

permit any person to conduct the prosecution. The only

rider is that 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 magistrates 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

magistrates 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).

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, 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.

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

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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 Queen-Empress 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

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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.

We, therefore, conclude that the High Court in the

impugned order has correctly approached the issue and it

does not warrant any interference. We, therefore, dismiss

this criminal appeal.