Manuel Augustine v. State of Kerala — 1984 DIGILAW 369 (MAD)

ORDER: A novel question, arising in peculiar circumstances, arises for determination in this revision. 2. Sri R.Mohan Kumar, Sub Inspector of Police, Ernakulam Town North Police Station, filed a complaint before the Additional Judicial First Class Magistrate, Ernakulam, alleging that the accused Sri K.G. Nair committed an offence under S. 51(a) of the Kerala Police Act on 8.11. 1980 when he, in a drunken state behaved in a disorderly manner in a public place. The Magistrate took the case on file on 13.11.1980 and issued summons to the accused and posted the case to 29.11. 1980. The accused appeared on the 28th itself, pleaded not guilty and was enlarged on bail. He was also exempted from personal appearance. The case was posted an 31.12.1980. 3. On 29.11.1980, the petitioner herein and another filed an application purporting to be under Ss.257 , 259 of the Code, alleging that they were present to witness the disorderly behaviour of the accused in the public road near Mathrubhumi, that there are records in the police control room to show that the accused assaulted the watchman at the gate of Mathrubhumi, they were themselves assaulted and that they apprehended that the police in collusion with the accused is not likely to prosecute the case that there was every likelihood of the case being withdrawn, and that they are prepared to give evidence in support of the prosecution. The Court ordered notice to the Assistant Public Prosecutor and posted the same to 31.12. 1980 when the case was also posted for evidence. 4. On 31.12.1980, no witnesses were present. Summons was issued and the case posted to 27.1.19151. 5. On 27.1.1981, there was no witness present again and summons was again issued and the case posted to 28.2.1981. 6. On 28.2.1981, also there was no witnesses. The case was posted to 23.3.1981. 7. On 23.3.1981, C.W.2 was present. Summons to C.W.1 and C.W.3 was repeated and the case posted to 29.4.1981. 8. On 29.4.1981, the complainant was absent. There was no representation. The accused was acquitted under S.256(l) Cr.P.C. 9. The petitioner, who is not a complainant, who is not an accused in this case, who merely stated that he was prepared to adduce evidence in support of the prosecution, challenges the acquittal and prays that he be given an opportunity to adduce evidence in support of the prosecution. The accused was acquitted under S.256(l) Cr.P.C. 9. The petitioner, who is not a complainant, who is not an accused in this case, who merely stated that he was prepared to adduce evidence in support of the prosecution, challenges the acquittal and prays that he be given an opportunity to adduce evidence in support of the prosecution. He contends that there has been a manifest miscarriage of justice and this Court should, in revision, or at least under its inherent jurisdiction set aside the acquittal and order retrial. When the revision was admitted, notice was also ordered to the Advocate General considering the importance of the questions raised. In response to this notice Sri Chettur Sankaran Nair, State Prosecutor, appeared for the State. 10. Sri K. Rama Kumar, appearing for the petitioner, contended: (1) that the acquittal under S.256(l) was illegal and improper as the conditions imposed thereunder were not satisfied; (2) that under 5.254, the petitioners are entitled to adduce evidence in support of the prosecution, this right has been denied and therefore the acquittal cannot stand; (3) that the Court has mechanically passed an order acquitting the accused on the sole ground that the complainant was absent when the witnesses were ready for giving evidence. The Court below did not even pass any orders on their application. 11. Sri Vijayakumar, the young counsel appearing for the accused, has forcefully placed the following submissions on the forefront: (a) that there was jurisdiction to acquit the accused under S.256(l) of the Code in this case; (b) that the petitioner has no locus standi to file this petition; and (c) that the petitioner has no right to lead evidence on behalf of the prosecution. 12. The counsel on both sides have referred to some decisions also and Sri Chettur Sankaran Nair, agreeing with the counsel, for the respondent argued that the petitioner is not aggrieved, this Court cannot grant relief at his instance and in any case both of them were not present and readily available for evidence when the accused were acquitted, as could be seen from the Court diary. 13. 13. As has been rightly put by the counsel on all sides, the question is whether the public interest litigation, a judicial strategy recognised and accepted by Courts cannot be accepted as a mode of redress under the Code of Criminal Procedure as well, apart from the writ jurisdiction available under the Constitution. I shall advert to this aspect a little later. 14. The first question relates to the jurisdiction to acquit under S.256(l) of the Code. S.256(l) applies only (a) if a summons has been issued on complaint and (b) if the complainant does not appear. Complaint under S.2(d) does not include a police report. A complaint, therefore, initiated on a police report cannot end in acquittal of the accused under S. 256(1) of the Code on the ground that the complainant is absent. But S.2(d) has an explanation which reads thus: “A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.” 15. Thus in respect of non-cognizable offences, the report is deemed to be a complaint and the police officer who makes the report is again deemed to be a complainant. In those cases, S.256(l), on its own force can be invoked. 16. When this order began with a reference to the police officer who made the complaint, it was to highlight that in this case the explanation to S.2(d) applied. Admittedly, the offences are non-cognizable and thus the police officer in this case was the complainant, he was absent, and the accused could be acquitted. There was jurisdiction to invoke S.256(l). 17. The second question is whether the lower Court was justified in acquitting the accused in the circumstances of the case. 18. When a complainant is absent, the Court has three options - (i) to adjourn the case; (2) to exempt the appearance of the complainant and (3) to acquit the accused. This can admit of no doubt, and if judicial authority is needed, Sivaraman Achari v. Agarwall Sivaraman Achari v. Agarwall (1979) K.L.T. 319can be usefully referred. In this case, the Court has given several adjournments; still the complainant did not appear; the witnesses were not available and there was no representation in Court. This can admit of no doubt, and if judicial authority is needed, Sivaraman Achari v. Agarwall Sivaraman Achari v. Agarwall (1979) K.L.T. 319can be usefully referred. In this case, the Court has given several adjournments; still the complainant did not appear; the witnesses were not available and there was no representation in Court. If, under these circumstances, the Court bellow acquitted the accused charged for an offence under the Kerala Police Act, in a summons case, of the year 1980, there is no ground to set aside the acquittal and in any case, the challenge cannot be accepted in 1984. The acquittal has to be sustained. 19. But the main contention advanced, that the petitioner's application stating that he was prepared to adduce material evidence in support of the prosecution, was not even considered and no orders were passed on his application and therefore, there has been a gross violation of a right of a member of the public to appraise the Court of the true facts and to adduce evidence in support thereof remains for consideration. The short question revolves on the content of the right of a member of the public to adduce evidence in support of the prosecution in a criminal Court and rightly, the right has to be traced to the provisions of the code. 20. S. 254 of the Code states that the Magistrate shall “take all such evidence as may be produced in support of the prosecution”. The contention therefore proceeds that the evidence in support of the prosecution need not be produced by the prosecution; but can be produced by any person to support the prosecution. 21. It is not possible to accept the broad contention that any person can produce evidence in support of the prosecution in Court. The acceptance of such a contention is fraught with grave danger and is likely to perpetuate grave injustice. It may affect the entire course of justice when evidence alleged to be in support of the prosecution, may demolish the entire prosecution story, or it may affect the accused prejudicially when, suddenly, new evidence from an entirely different source without any prior information, is thrust in Court. This cannot be allowed. 22. The right to adduce evidence in support of the prosecution should primarily rest with the Prosecutor. This cannot be allowed. 22. The right to adduce evidence in support of the prosecution should primarily rest with the Prosecutor. It is his prima responsibility to decide about the quality and the quantum of the evidence in support of the prosecution. He can, of course, rely on the particulars furnished by the investigation, and car consider any other evidence which may be brought to his notice. Any member of the public, the public spirited individual who desires to advance the cause of justice and aid the prosecution has the opportunity initially to inform the investigation agency the evidence in his possession, and also has the right to inform the prosecutor about his availability to adduce evidence, with reasons why it could not be made available earlier. The prosecutor can then decide whether this evidence cannot be allowed to support the prosecution. 23. But when the public interested individual, comes straight to Court alleging that he has evidence in support of the prosecution, evidence which he has not so far disclosed to any authority, that evidence may suspect, but cannot be rejected on that ground alone. It is at that stage that there is relevance to the provision of S.311 of the Code. S.311 of the Code provides that the Court may, at any stage, ofany enquiry or trial or other proceeding, summon any person as a witness. The authority of the Court as an instrument of justice has statutory recognition in S.311 and the Court can always decide, and in fact has a duty to decide, whether the evidence offered in Court, as in this case, should be allowed in support of the prosecution. The Court has vast powers to oversee the functioning of the criminal judicial system and guard against possible abuse of such right. The section clothes the Court with a judicial discretion to admit or refuse fresh evidence in support of the prosecution. This section therefore guarantees the right of an individual to adduce evidence in Court in support of the prosecution but statutorily restricts it by a judicial determination of its propriety and necessity. 24. The section clothes the Court with a judicial discretion to admit or refuse fresh evidence in support of the prosecution. This section therefore guarantees the right of an individual to adduce evidence in Court in support of the prosecution but statutorily restricts it by a judicial determination of its propriety and necessity. 24. Thus the words “all such evidence as may be produced in support of the prosecution” do not admit of the narrow interpretation that the evidence can be produced only by the prosecution but it is sufficiently elastic to allow any person to let in evidence in support of the prosecution with the consent of the Court and that the Court in such cases has a jurisdiction and a duty to exercise its powers under S.311 of the Code to decide about the right to lead any such evidence. If evidence is sought to be adduced to defeat the ends of justice, to demolish the prosecution case in an indirect move to render support to the accused, the Court may well be, within its power to refuse to allow the reception of any such evidence. If, on the other hand, the prosecution fails in its primary duty to adduce any evidence, as in this case, and persons prepared to give evidence in support of the prosecution are available it is the duty of the Court to allow them to assist the Court and support the prosecution. S.254 has to be understood in the light of S.311. Both the sections have to be read together. The power of the Court cannot be curtailed. The right of the parties cannot be ignored and the cause of justice cannot be defeated. In other words, the right to adduce evidence in support of the prosecution envisaged in S.254 of the Code is not a right which can be arbitrarily defeated by the prosecution; but a right reasonably protected by the Court under S.311 of the Code. 25. It is useful in this connection to refer to the observations of the Orissa High Court in State of Orissa v. Sibcharan Singh State of Orissa v. Sibcharan Singh A.I.R. 1962 Ori. 157. “The word ‘produced’ in sub- section (7) of S.251(a) Cr.P.C, 1898 and analogous to S.243(3) cannot be given any restricted meaning as to saddle the prosecution with the entire responsibility of producing the evidence. 157. “The word ‘produced’ in sub- section (7) of S.251(a) Cr.P.C, 1898 and analogous to S.243(3) cannot be given any restricted meaning as to saddle the prosecution with the entire responsibility of producing the evidence. A duty also is cast upon the Courts for enforcing attendance of witness by the process provided in the Criminal Procedure Code. The Courts are not therefore absolutely powerless when the parties fail to produce evidence relevant in a case.- 26. Rajasthan High Court in State v. Nandikishore State v. Nandikishore A.I.R. 1967 Raj. 228has observed as thus: “The word ‘produced’ in sub- section (7) includes the bringing forward of the witnesses by the prosecution at its own instance or through the process of the Court whom it desires to examine at trial. Besides in the administration of criminal justice a duty is cast upon the Court to arrive at the truth by all lawful means though the primary responsibility of prosecuting cognizable offence is on the executive authorities.” 27. In a Full Bench decision of the Madras High Court in State v. Veerappan State v. Veerappan (1980) L.W. (Crl.) 187: A.I.R. 1980 Mad. 260 it is held thus: “Thus the Court cannot absolve itself of its responsibility to summon and examine all witnesses whose evidence appears to it to be essential to a just decision of the case, merely because the prosecution does not produce such witnesses owing to its negligence or otherwise. It being clear that it is the duty of the Magistrate to issue summons and secure the presence of witnesses and examine them, when the prosecution seeks the Court assistance by means of an application the Court is further obliged in discharge of its duty to arrive at the truth by all lawful means in furtherance of the administration of criminal justice to suo motu take all steps to secure the presence of the witnesses where vidence. appears to it to be essential to a just decision of the case.” 28. In the view thus expressed, the locus standi of the petitioner to file an application seeking permission to adduce evidence in support of the prosecution cannot be seriously challenged. The right is implicit in the exercise of the power under S. 311. appears to it to be essential to a just decision of the case.” 28. In the view thus expressed, the locus standi of the petitioner to file an application seeking permission to adduce evidence in support of the prosecution cannot be seriously challenged. The right is implicit in the exercise of the power under S. 311. It has however to be made clear that when a person, who never discloses the evidence in his possession to any authority, comes straight to Court at the time of trial declaring for the first time that he has very valuable evidence with him, he does not get an automatic entry Court to adduce evidence. Only in very appropriate cases, for reasons to be recorded, and on being satisfied that the evidence is material to support the prosecution will the Court adopt this unusual procedure to allow a party to adduce evidence. This power has thus to be exercised very sparingly. 29. The observations of the Supreme Court in Thekur Ram v. State of Bihar Thekur Ram v. State of Bihar (1966)2 S.C.J. 438: (1966) MLJ. (Crl.) 589: (1966) Crl.L.J. 700: (1966)2 S.C.R. 740 : A.I.R. 1966 S.C. 911 at 917are in point. “It would, however, not be irrelevant to bear in mind the fact that the Court's jurisdiction was invoked by a private party. The criminal law is not to be used as an instrument of wreaking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book.” 30. The right of a stranger to the trial to approach the Court has been recognised by the Supreme Court in certain exceptional circumstances. Thus, the power of the Supreme Court under Art. 136 of the Constitution is not circumscribed by any limitation as to who may invoke it. In Arunachalam v. Sadhananthan Arunachalam v. Sadhananthan (1979) 2 S.C.J. 134(1979) 2 MLJ. (S.C.) 24: (1979) MLJ. Thus, the power of the Supreme Court under Art. 136 of the Constitution is not circumscribed by any limitation as to who may invoke it. In Arunachalam v. Sadhananthan Arunachalam v. Sadhananthan (1979) 2 S.C.J. 134(1979) 2 MLJ. (S.C.) 24: (1979) MLJ. (Crl.)527:(1979) Crl.L.J. 875: A.I.R. 1979 S.C. 1284: (1979) 2 S.C.C. 297 : (1979) S.C.C. (Crl.) 454: (1979)3 S.C.R. 482 the Supreme Court observed thus: “Where a judgment of acquittal by the High Court has. led to a serious miscarriage of justice the Supreme Court cannot refrain from doing its duty and abstain from infering on the ground that a private party and not the State has invoked the Court's jurisdiction.” 31. Similarly in P.S.R. Sadhanantham v. Arunachalam P.S.R. Sadhanantham v. Arunachalam (1980) 3 S.C.C. 141 : (1980) S.C.C. (Crl.) 649: A.I.R. 1980 S.C. 856 Mr. Justice Krishna Iyer speaking for himself, Fazl Ali and Desai, JJ., observed thus at page 860, paras 13 to 16 of A.I.R. “It is true that the strictest vigilance of the process of the Court, especially at the expensively exalted level of the Supreme Court, should be maintained and ordinarily meddlesome bystanders should not be granted ‘visa’. It is also true that in the criminal jurisdiction this strictness applies a fortiori since an adverse verdict from this Court may result in irretrievable injury to life or liberty.” “While the criminal law should not be used as a weapon in personal vandettas between private individuals”, as Lord Swawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider connotation of the expression “standing” is necessary for Article 136 to further its mission. There are jurisdiction in which private individuals - not the State alone -may institute criminal proceedings.” xxxxxx xxxxxx xxxxx “Even the English System, as pointed by the Discussion Paper permits a private citizen to file an indictment. In our view, the narrow limits set in vintage English Law into the concept of ‘Person aggrieved’ and ‘standing’ needs liberalisation in our democratic situation. In Dabholkar case this Court imparted such a wider meaning. In our view, the narrow limits set in vintage English Law into the concept of ‘Person aggrieved’ and ‘standing’ needs liberalisation in our democratic situation. In Dabholkar case this Court imparted such a wider meaning. The American Supreme Court relaxed the restrictive attitude towards ‘standing’ in the famous case of Baker v. Carr Baker v. Carr (1962) 369 U.S. 186 Lord Denning, in the notable case of the Attorney-General of the Gambia v. Pierre Sarr N'Jie Attorney-General of the Gambia v. Pierre Sarr N'Jie (1961) 2 All.E.R. 504: (1961) A.C. 617 spoke thus: “The words ‘person aggrieved are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him.” “We are thus satisfied that the bogey of the busy bodies blackmailing adversaries through frivolous invocation of Art. 136 is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings are: We cannot dwell in the home of processual absolescence when our Constitution highlights social Justice as a goal.” 32. In the present case, the petitioners before the lower Court “stated that they were even assaulted by the accused. They never reported to the Police. They came straight to Court. And even in Court, from the case diary, it is seen, no representation was made on their behalf on 29.4.1981 when the accused was acquitted. One petitioner has backed out, and the other has filed this revision. There is thus nothing wrong in this case if the Magistrate did not allow them to lead evidence, for apart from filing a petition to catch the eye of the Court, nothing further was done on their behalf. The acquittal cannot therefore be set aside and there, is no manifest error or any grave injustice. 33. This revision petition is dismissed. I place on record my appreciation of the clear and concise arguments advanced by Sri K. Ram Kumar for the petitioner and Sri S. Vijayakumar, for the respondents and the valuable assistance rendered by Sri Chettur Sankaran Nair, the State Prosecutor. 33. This revision petition is dismissed. I place on record my appreciation of the clear and concise arguments advanced by Sri K. Ram Kumar for the petitioner and Sri S. Vijayakumar, for the respondents and the valuable assistance rendered by Sri Chettur Sankaran Nair, the State Prosecutor. The State Prosecutor also assured this Court that if at any time it is brought to his notice, the prosecutor or the official complainant has not been diligent in prosecuting a case and the case had ended in acquittal for the default or negligence of the prosecution, he will take necessary steps in his capacity as the Director of Prosecutions against the erring prosecutors and officers. This assistance should suffice to alert prosecutions. M.C.M. ----- Revision Petition dismissed.