GOPALAN PRABHAKARAN v. MADHAVAN ANANDAN — 1967 DIGILAW 279 (KER)

Judgment :- 1. P. W.1 in Calendar Case No. 171 of 1966 on the file of the Additional First Class Magistrate, Karunagappally is the revision petitioner. The case was one charge sheeted by the Karunagappally Police under S.279, 337 and 338 I. P. C. and also under S.3(1), 89(a) and (b), 118(a) and 112 of the Motor Vehicles Act. 1939. 2. The prosecution case was that the accused not possessed of a driving licence, drove a car BMP 7203 on 23rd October 1966 along the Puthiacavu- Cathrikadavu road and by rash and negligent driving knocked down 4 persons including the revision petitioner who were standing on the parapet wall of a culvert. The car came at excessive speed and as a result of the impact, serious injuries were sustained by all the victims. In the charge-sheet there were 15 witnesses on the whole, including the injured. Witnesses numbers 5 to 7 are independent witnesses and witness number 8 is a person who was travelling in the car. On 24th January 1967 all these eye witnesses were present in the court for examination. But the Assistant Public Prosecutor did not turn up and so the witnesses were discharged. The case was adjourned to 2nd February 1967. On that day, the Prosecutor was absent and no witnesses were produced even though the prosecution had undertaken to produce them. The learned Magistrate accordingly ordered summons to the witnesses and adjourned the case to 13th February 1967. On 13th February 1967 the accused was present but the Prosecutor was absent. Witness numbers 13 to 15 in the charge-sheet were present Witness No. 13 was discharged and the other two witnesses being Police Officers were examined by the learned Magistrate as P. Ws.1 and 2. Summons was again ordered to the other witnesses and the case was adjourned to 21rd February 1967. On 23rd February 1967 the accused was present but the Prosecutor was absent. No witness turned up. So the case was adjourned for further steps to 24th February 1967. On 24th February 1967 also the Prosecutor was absent. The accused was accordingly acquitted under S.251-A(11) of the Code of Criminal Procedure. 3. The learned Magistrate observes in his order: "The only witnesses examined in this case are P. Ws.1 and 2, the Investigating Officers. Witnesses Nos.1 to 4 who appeared before court had to be discharged as the Prosecutor was absent. The accused was accordingly acquitted under S.251-A(11) of the Code of Criminal Procedure. 3. The learned Magistrate observes in his order: "The only witnesses examined in this case are P. Ws.1 and 2, the Investigating Officers. Witnesses Nos.1 to 4 who appeared before court had to be discharged as the Prosecutor was absent. Infact the Prosecutor was consistently absent on all the posting dates of this case. On the date when P. Ws.1 and 2 were examined also the Prosecutor as absent and these witnesses examined themselves. On that day the Medical Officer, witness No. 13 in the chargesheet was present pursuant to summons. But he had to be discharged as there was nobody to examine him on behalf of the prosecution. As there is no evidence regarding the occurrence I find the accused not guilty and acquit him under S.251-A(11) Cr. P. C. 4. It has been pointed out by this Court on several occasions that merely because the Public Prosecutor is absent, the accused should not be acquitted. It was improper on the part of the learned Magistrate to have discharged the witnesses on the ground that the Public Prosecutor was absent. The witnesses ought to have been examined by the learned Magistrate even in the absence of the Public Prosecutor and if it was not possible for him to examine the witnesses, he ought to have adjourned the case and directed the witnesses to appear on the next adjourned date. (See State of Kerala v. Gopalan 1960 KLT. 774 and Mate of Kerala v. Krishnan 1961 KLT. 324.) It is clear from the order itself that the Assistant Public Prosecutor had been consistently absenting himself. When the Assistant Public Prosecutor takes such an indifferent attitude, the court is not left in the lurch. It is the duty of the court to see that justice does not suffer. In such situations it is perfectly open to the court to appoint a pleader in exercise of the power vested under S.492 or 495(1) of the Code of Criminal Procedure. 5. In the present case there was a request from PW.1 the de facto complainant, on 24th January 1967 itself that he might be permitted to conduct the case through a lawyer of his choice. 5. In the present case there was a request from PW.1 the de facto complainant, on 24th January 1967 itself that he might be permitted to conduct the case through a lawyer of his choice. Advocate Shri Balakrishna Pillai of the local bar, was also suggested in his petition as the person whom he was intending to engage in the case. But the learned Magistrate rejected the petition saying that since the Prosecutor was not agreeable, permission could not be granted. The order reads: "Permission refused as the Prosecutor has not agreed to the same." The view taken by the learned Magistrate that only with the consent of the Prosecutor, another person could be appointed by Court is wrong. All that the rule says is that whenever such a person is appointed, be can function only under the direction of the Public Prosecutor. That does not mean that for the validity of the appointment the Prosecutor's concurrence is required. A pleader appearing for a private person can conduct the prosecution but he must act under the direction of the Public Prosecutor. It is pointed out on behalf of the respondent that under S.495(1) the Court is empowered to appoint only a Police Officer as is inferable from the expression'any person other than officer of police below a rank to be prescribed by the State Government...". The argument is that if the Magistrate wants the prosecution to be conducted by an officer below the rank prescribed by notification, he 'can do so, but the expression "any person" is not wide enough to include a person other than a Police Officer below the rank prescribed. I don't think this construction sought to be put upon the section, is correct. In the present case the person sought to be appointed is an advocate of the court, and the court is empowered to do it under S.495(1) of the Code of Criminal Procedure. It might however be said that the words "any person" cannot include an absolute stranger who has no connection in the remotest degree with the prosecution and whose desire to help the prosecution is based on personal grudge only (See Darsham Das v. Atma Ram 14 Cl. Q. 389.) 6. It might however be said that the words "any person" cannot include an absolute stranger who has no connection in the remotest degree with the prosecution and whose desire to help the prosecution is based on personal grudge only (See Darsham Das v. Atma Ram 14 Cl. Q. 389.) 6. The learned Magistrate ought to have permitted the advocate suggested by PW.1 to conduct the prosecution especially in view of the deadlock created by the Assistant Public Prosecutor by his determined absence. To get the permission of the Assistant Public Prosecutor for the appointment, was not practicable also since he himself had disappeared from the scene. 7. I would therefore set aside the order and remand the case to the court below for retrial and disposal in accordance with law The learned Magistrate without waiting for the absconding Assistant Public Prosecutor to turn, up, would do well to appoint the advocate suggested by pw.1 or any other advocate of his choice to conduct the prosecution. Allowed.