SURESH SURENDRA v. THE STATE OF U. P. — 1986 DIGILAW 74 (ALL)

B. L. YADAV, J. ( 1 ) THIS is an application on behalf of the complainant under section 482 read with section 439 (2) of the Code of Criminal Procedure in the aforesaid criminal appeal, for recalling the order dated 17-10-85 passed by this Court granting bail to the appellant, convicted under sections 302/307 I. P. C. and sentenced to life imprisonment and seven years R. I. respectively in Sessions Trial No. 395 of 1983 State v. Suresh. ( 2 ) THE appeal aforesaid was filed in this Court on 28-5-1984, it was admitted and the prayer for bail was ordered to be considered after receipt of the record. The case was listed again on 16-10- 1985 for consideration of prayer for bail after the receipt of the record arid it was heard again on 17-10-1985 and after hearing the learned counsel for the appellant bail was granted. ( 3 ) THIS application on behalf of the complainant supported by an affidavit has been filed by Sri Raj Kumar Jam, counsel for the complainant. It has been averred in the affidavit that the counsel for complainant has filed his vakalatnama and on some dates prior to 16-10-1985 his (Sri R. K. Jaints) name also appeared in the cause list printed under the authority of Honble the Chief Justice, but by chance his name was not shown in the cause list for this case either on 16/10/1985 or on 17/10/1985 when the application for bail was listed for orders. He was not heard in support of the case of the prosecution and the ex-parte order for bail was made. ( 4 ) ON the other hand, Mr. Girdhar Malviya, Additional Government Advocate, appearing for, the state, urged that he had special instructions on behalf of the State to oppose the bail in this case but on that date fixed his file was not traceable in the office and he was not informed that the prayer for bail was being considered either on 16-10-1985 or on 17-10-1985. ( 5 ) MR. Raj Kumar Jam, the learned counsel for the complainant urged that the cause list in this Court is printed under the authority of Honble the Chief Justice and if by mistake the name of the counsel did not appear, it may be treated to be mistake of the Court and for that the State or the complainant should not suffer. Raj Kumar Jam, the learned counsel for the complainant urged that the cause list in this Court is printed under the authority of Honble the Chief Justice and if by mistake the name of the counsel did not appear, it may be treated to be mistake of the Court and for that the State or the complainant should not suffer. ( 6 ) SRI Krishna Kapoor and Sri S. P. S. Raghav for the appellant urged that as the A. G. A. (Assistant Government Advocate) was printed in the cause list on behalf of the State it must be assumed that Mr. Girdhar Malviya or Mr. R. K. Jam (counsel for the complainant) had knowledge of the date of hearing. Mr. Jam was in fact acting as a private counsel on behalf of the complainant and in view of Section 301 Cr. P. C. 1973, he could act only under the Public Prosecutor, Assistant Government Advocate or the Government Advocate and as the A. G. A. was printed in the cause list on behalf of the State, it can safely be assumed that Mr. Jam had also been heard. Reliance was placed on Ku/dip Singh v. State of Haryana. Iqbal Ahmad v. Ketki Devi,2 Roop Kishorey Film Producer v. State3 and Thakur Ram and others v. State4. ( 7 ) HAVING heard the learned counsel for the parties I find that the moot point for consideration is as to whether the order dated 17 -10-1985 can be recalled as the name of Mr. Raj Kumar Jam was not printed and Mr. Malviya was handicapped on account of the fact that the case was not brought to his notice by his office. The relevant provisions of Section 301, Cr. P. C. can fruitfully be set out below:3o1 Appearance by Public Prosecutor: (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority under inquiry, trial or appeal. (2) 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 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. ( 8 ) UNDER section 301 (1) it has been provided that the Public Prosecutor or Assistant Public Prosecutor requires no authority or permission to appear and plead a case before any Court either as, inquiry, trial or appeal. Sub-section (2) of section 301 provides that the Public Prosecutor or the Assistant Public Prosecutor shall be incharge of the case and he shall conduct the prosecution and the pleader engaged by a private person or the complainant may act under the direction of the Public Prosecutor or the Assistant Public Prosecutor. ( 9 ) PUBLIC Prosecutor has been defined under section 2 (u) of the Code of Criminal Procedure and it means any person appointed under section 24 and includes any person acting under the directions of a Public Prosecutor. Section 24 (1) provides that the State Government in consultation with the High Court a hall appoint a Public Prosecutor for conducting any prosecution, appeal or other proceeding on behalf of the State Government or Central Government, as the case may be. Similarly for every district the District Magistrate shall in consultation with the Sessions Judge prepare a penal of names of such persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutors. Out of this penal the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutor. (Vide Sections 24 (2) (3 ). ( 10 ) FURTHER under section 301 (2} the Parliament has provided that if in any such case any private person (i. e. complainant) instructs a pleader to prosecute any person in any case, the Public Prosecutor shall conduct the prosecution and such pleader shall act under the directions of the Public Prosecutor. In view of section 2 (q) the word pleader when used with reference to any proceeding in any court, means a person authorised by or under any law for the time being in force, to practice in such court. Section 30 of the Advocates Act, 1961 grants a right of practice through out the territories to which the Advocates Act extends. Section 30 of the Advocates Act, 1961 grants a right of practice through out the territories to which the Advocates Act extends. The learned counsel for the appellant urged that in the criminal appeal also the procedure for hearing must be the same as provided under section 301 (2) and if the name of Assistant Government Advocate was printed, he has information and if he did not appear it means the counsel instructed by the complainant (i. e. Shri R. K. Jam) has no right to be heard and the order granting bail need not be recalled on grounds that Mr. Jam was not heard. The criminal appeal is the continuation of the trial. ( 11 ) IN order to have a correct interpretation of section 301 (2) the meaning of the word actt has to be ascertained. The word actt has not been defined in the Code of Criminal Procedure. In view of State of Orissa vs. Titaghur Paper Mills Co. Ltd5 in case a particular word has not been defined Dictionary meaning can be looked into. Let us have Dictionary meaning of word Tactt used in section 301 (2 ). ( 12 ) ACCORDING to Websters Third New International Dictionary the word act connotes, something done by a person pursuant to his volition, process of doing, actions, something done for the sake of its intended impression upon others, to move to action; to discharge the duties of a specified office or post, perform a specified function. ( 13 ) ACCORDING to shorter Oxford English Dictionary the word act denotes the process of doing, action, to carry out inaction, to perform, the performance of deeds. ( 14 ) ACCORDING to Readerst Digest Great Encyclopaedic Dictionary the word act means perform on action, do things, perform special functions, work fulfil functions. ( 15 ) ACCORDING to words and phrases permanent Edition Vol. 2 the words acting as a lawyer encompasses the whole orbit of legal functions and the word Tact is that which is done or doing in the exercise of power. ( 16 ) ACCORDING to Blacks Law Dictionary (Fifth Edition) the word act denotes external manifestation of actors will, expression of will or purpose, carries idea of performance, primarily that which is done or doing, exercise of power. ( 16 ) ACCORDING to Blacks Law Dictionary (Fifth Edition) the word act denotes external manifestation of actors will, expression of will or purpose, carries idea of performance, primarily that which is done or doing, exercise of power. ( 17 ) IN Bouviers Law Dictionary the word act has been indicated to be formed by a Latine word agere, which means to do and the word actus which means done. Hence this word act means something done or established. In its general legal sense this word act may denote something done by an individual. ( 18 ) ACCORDING to Strouds Judicial Dictionary the word act denotes a matter or thing done (See Brooke V. R6 and A. G. v. Royal Mail Steam Packet Co7. ( 19 ) IF there is an agreement by a solicitor that he will not do any work or act usually done by solicitors, it is probably more restrictive than a solicitor (is directed) not to practice at all. (See Re Horton 8 ). ( 20 ) IN view of the definition of word pleader under section 2 (q) which means in reference to proceedings in any Court, any person authorised under law to practice in such court. In the instant case in view of the meaning of word act the simple interpretation of Section 30 1 (2) would be that if any private person or complainant instructs any Advocate to prosecute any person in any Court the proceedings would be conducted by the. Public Prosecutor and the Advocate so instructed shall also be performing his positive acts and would perform his professional function in a positive, effective and assertive way, but certainly under the direction of the Public Prosecutor and at the close of the trial he shall be having an additional opportunity to submit written arguments with the permission of the Court. It cannot be assumed that the legislature intended that any Advocate engaged by a complainant would remain just a silent spectator and would not contribute positively to the proceedings of the Court, but certainly he has to act under the directions of the Public Prosecutor. ( 21 ) IT is relevant to take note of the fact that the Supreme Court has struck a note of caution in respect of persons entrusted with the duty to act as a Pairokar or as an advocate on behalf of the Government. ( 21 ) IT is relevant to take note of the fact that the Supreme Court has struck a note of caution in respect of persons entrusted with the duty to act as a Pairokar or as an advocate on behalf of the Government. In criminal cases the State Government remains a party and is just like a complainant and the Public Prosecutor and the Assistant Public Prosecutor represent the State. With great sense of humility 1 have to say that there may be an oblique motive on the part of the Government agency in conducting the prosecution and they may thereby deprive the Court from the real assistance. In that event the assistance rendered by the Advocate so engaged by the complainant cannot be under estimated and he would assume a paramount role to play. In State of U. P. vs. Bahadur Singh and Others9, the Supreme Court has taken a view that the departmental authorities charged with a duty to implement the law (on behalf of the State) should not be vigilant and the authorities so charged may delay the moving to higher courts for oblique motive and thereby public interest may suffer. ( 22 ) CONSIDERING these aspects a balance has to be struck in the approach to be made by the Public Prosecutor and the Advocate engaged by the complainant and so long as the Public Prosecutor does not abdicate his functions and retains with himself the control over the proceedings, the private counsel so engaged can work under his direction. The expression conduct the prosecution used in Section 301 (2) means to determine all the important questions of policy involved in the course of trial and the Advocate so instructed shall also perform his duties as an, Advocate:in rendering valuable assistance to the Public Prosecutor. The word actt in view of the aforesaid dictionary meanings does not mean something other than examining or cross examining witnesses or addressing the Court. It cannot, therefore, be said as suggested by the learned counsel for the applicant that Sri R. K. lain engaged by the complainant is not entitled to be heard by this Court and as the TA. G. A. was printed in the cause list. It cannot, therefore, be said as suggested by the learned counsel for the applicant that Sri R. K. lain engaged by the complainant is not entitled to be heard by this Court and as the TA. G. A. was printed in the cause list. It has not to be assumed that the Public Prosecutor or Sri Girdhar Malviya has also notice, when in fact it has been proved that Sri Girdhar Malviya could not be informed of the date fixed for considering the bail application in appeal. Particularly in a situation like this if the name of Sri R. K. Jam, counsel engaged by the complainant would have been printed in the cause list, he would have rendered positive assistance by addressing the Court and by assigning material in favour of the prosecution and justice would have been done as both sides would have heard. I am accordingly of the view that the word actt used in Section 301 (2) means to have a right to address the Court, to examine and cross examine the witnesses. ( 23 ) KULDIP Singh vs. State of Haryana (supra), relied upon by the learned counsel for the applicant was a case based on entirely different facts where an application was made by the applicant for being permitted to take part in trial proceedings and that application was rejected. In the instant case the matter is before the High Court in appeal and the practice and procedure prevalent in the High Court has to be given effect to. The cause list is published under the authority of the Honble Chief Justice and the names of parties, number of cases, names of counsels of both sides are printed indicating the Court No. in which that case would be taken up. In case the name of a particular counsel, even though engaged by a private party or complainant is not printed, it is the mistake of the office of the High Court or the agency entrusted with the work of publishing the names of parties and the names of counsels etc. It cannot, therefore be said to be the mistake of Counsel for the complainant. In this connection it would not be out of place to mention the Latin maxim actus curaie nemivem gravabit, which means an act of the court shall prejudice no man. It cannot, therefore be said to be the mistake of Counsel for the complainant. In this connection it would not be out of place to mention the Latin maxim actus curaie nemivem gravabit, which means an act of the court shall prejudice no man. If some mistake was committed in printing the cause list so as not to print the name of the counsel for complainant, the complainant or the prosecution should not be put to any disadvantage on that count. ( 24 ) IQBAL Ahmad vs. Ketki Devi (supra) was a case on entirely different facts where the complainants counsel had moved the Court to take finger prints of the accused. ( 25 ) ROOP Kishorey Film Producer v. State (supra) relied upon by the learned counsel for the appellant is relevant for the purpose of interpreting Section 301 in-as-much as it has been held that in the matters where the Public Prosecutor keeps himself the control and guidance, in that event the private counsel engaged by the complainant may work under his direction but in case where the Public Prosecutor does not have control over the case, in that event the private counsel engaged should perform his positive duties of examining and cross examining the witnesses and eyen addressing the Court. ( 26 ) IN view of the discussions made above, I am of the view that Sri R. K. Jam counsel for the complainant was handicapped and he could not render any assistance as his name was not printed in the cause list. Similarly Sri Girdhar Malviya also could not render any assistance as he was not informed about the date fixed by his office. Under these circumstances, it is not proper to maintain the order passed on the bail application. ( 27 ) I am accordingly recalling the order dated 17/10/1985 passed by me granting bail to the applicant. But as I have expressed my view and as also because I am not sitting in criminal side regularly, it would be proper that the prayer for bail is listed for orders before some other appropriate Bench at an early, date. Petition allowed.