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1990 DIGILAW 259 (KER)

M. K. Balan v. State

1990-07-13

M.M.PAREED PILLAY

body1990
ORDER M.M. Pareed Pillay, J. 1. The revision petition is filed against the order of the Additional Sessions Judge, Kozhikode overruling the objections raised by the revision petitioner (25th accused) in S. C. 48 of 1987 that the advocate engaged by the private party to assist the prosecution cannot be allowed to play the dominant role in the conduct of the prosecution disregarding the statutory role of the Public Prosecutor. The extent of the power of an advocate appointed by a party vis a vis the Public Prosecutor or Assistant Public Prosecutor is the moot point to be considered in this revision. 2. The right of a private person to engage a pleader to prosecute any person in any Court cannot be denied. But the question is whether such an advocate can shelve the Public Prosecutor to Assistant Public Prosecutor to the background and assume an independent role in the prosecution of the case. He cannot do so. He can only act under the directions of the Public Prosecutor or Assistant Public Prosecutor. S.301(2) postulates that if 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. As S.301(2) makes the position clear that the advocate engaged by the private person can only submit written arguments after the evidence is closed in the case, the indubitable position is that he cannot independently handle the prosecution case treating the Public Prosecutor or Assistant Public Prosecutor as a non entity. As the advocate can only act under the directions of the Public Prosecutor or Assistant Public Prosecutor, he cannot have any audience before the court. 3. S.302 CrlPC enables any Magistrate to permit the prosecution being conducted by any person other than a police officer below the rank of an Inspector. S.302(2) authorises any person conducting the prosecution to do so personally or by a pleader. There is ocean of difference between assisting Public Prosecutor or Assistant Public Prosecutor under S.301 and conducting the prosecution on the basis of permission granted under S.302. S.302(2) authorises any person conducting the prosecution to do so personally or by a pleader. There is ocean of difference between assisting Public Prosecutor or Assistant Public Prosecutor under S.301 and conducting the prosecution on the basis of permission granted under S.302. S.301 makes it clear that in a case where a party engages his own advocate to prosecute the case the Public Prosecutor or the Assistant Public Prosecutor continues to be in charge of the case. But under S.302 when permission is granted to an advocate to conduct the prosecution he can do so on his own and the Public Prosecutor or the Assistant Public Prosecutor is no where in the scene. The essential difference in S.301 and 302 also sufficiently clearly indicates that under S.301 and the role of the Public Prosecutor or the Assistant Public prosecutor is not eliminated even when the Court permits a private party to engage his own lawyer. 4. Advocate engaged by the private party can bring to the notice of the Court any act of omission or omissions by the Public Prosecutor to the detriment of the prosecution. He can bring to the notice of the Court of any case diary contradiction or omission which the Public Prosecutor or Assistant Public Prosecutor omitted to highlight or any such relevant matter crucial to the prosecution. It is always open to the advocate to assist the Public Prosecutor to conduct the case in a befitting manner and he can always render such assistance by bringing to the notice of the Court and the Public Prosecutor of any factual or legal matter concerning the case. 5. Correct interpretation of S.301(2) can only be that a lawyer instructed by a private person to assist the Public Prosecutor has no right of audience except to the extent permitted by that Section. Whenever the advocate feels that trial is not conducted fairly or properly or in a partisan manner, he can invite the attention of the Court to it. There are several ways in which the advocate engaged by a private person can function under the directions of the Public Prosecutor or Assistant Public Prosecutor. Whenever the advocate feels that trial is not conducted fairly or properly or in a partisan manner, he can invite the attention of the Court to it. There are several ways in which the advocate engaged by a private person can function under the directions of the Public Prosecutor or Assistant Public Prosecutor. The advocate can certainly assist the Public Prosecutor or the Assistant Public Prosecutor during trial of the case by drawing his attention to the necessity of marking a case diary contradiction or bring to his notice of any case law on the point or of the necessity to examine a witness or to highlight the importance of a document and such other matters. But he cannot become the sole spokesman for the prosecution and treat the Public Prosecutor or Assistant Public Prosecutor as a junior partner. He cannot assume the powers of the Public Prosecutor or Assistant Public Prosecutor and relegate him to play only a minor role. To hold that the role of Public Prosecutor or Assistant Public Prosecutor is only to play second fiddle to the advocate briefed by the party is opposed to S.301(2). 6. The settled legal position is that when the language in the statute is clear and unambiguous nothing can be added or subtracted so as to give a different meaning to the statute as the function of the Court is to interpret and not to legislate. As S.301(2) states that the lawyer engaged by the private person can submit written arguments, it is beyond comprehension to hold that such a lawyer can take the upper hand in conducting the case and relegating the Public Prosecutor or Assistant Public Prosecutor to a secondary place. 7. Chap.18 of the Code lays down the procedure for trial before a Court of Session. S.225 provides that in every trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor. S.234 states that after the examination of the witnesses both on the side of the prosecution as well as defence it is the duty of the Public Prosecutor to sum up his case and the accused or his lawyer then has a right of reply. The proviso enables the Public Prosecutor to make further submissions with regard to any point of law raised by the accused or his lawyer with the permission of the Court. The proviso enables the Public Prosecutor to make further submissions with regard to any point of law raised by the accused or his lawyer with the permission of the Court. The above provisions irrefutably indicate that the lawyer engaged by a private party has no right of audience. 8. Similar view has been taken by the High Courts of Gujarat and Calcutta. In Manharlal I. Shah v. Yogeshkumar Kanaiyalal Sarala and others (1988-2-Crimes 13) the Gujarat High Court held thus: "On true interpretation of S.301(2), a lawyer instructed by a private person to assist the Public Prosecutor has no right of audience except to the extent permitted by that section. If he feels that trial is not conducted fairly it will be open to him to draw attention of the Court in that behalf. If the Court feels that some assistance is necessary on the point arising before, it, it may appoint such lawyer or any other lawyer as amicus curiae." There may be a case where the injured party might feel that the trial is not conducted fairly and properly by the Public Prosecutor or Assistant Public Prosecutor. In such a situation the Court may allow a party to engage his own lawyer to prosecute the case. But if such an advocate is given full authority to prosecute the case and the Public Prosecutor or Assistant Public Prosecutor remains only as a passive spectator in the Court, it results in the infringement of S.301 (2). In 1988 CriLJ 278 (In re Rakhan Ojha) Division Bench of the Calcutta High Court had occasion to consider the scope of S.301(2). The court held thus: "A plain reading of sub-s.(1) and (2) of S.301 makes it abundantly clear that if in a case which is in charge of a Public Prosecutor or Assistant Public Prosecutor a private person engages a lawyer then, not withstanding such engagement, the Public Prosecutor or Assistant Public Prosecutor who is in charge of the case shall conduct the prosecution and the lawyer engaged by the private person shall act therein under the direction of the Public Prosecutor or Assistant Public Prosecutor and he can only submit written arguments and that too with the permission of the Court. In other words, lawyer engaged by a private person has no right of audience in a case which is in charge of a Public Prosecutor." 9. In other words, lawyer engaged by a private person has no right of audience in a case which is in charge of a Public Prosecutor." 9. The respondent's counsel relied on 1978 KLT 816 (Hamsa v. Assistant Public Prosecutor) and urged that counsel for a private person can very well examine witnesses. In the above decision it was held that the responsibility f or questions put to witnesses by a pleader appointed by a private person cannot be later disowned by the Public Prosecutor and in so far as the matter in which the pleader is allowed to act by the Public Prosecutor is concerned that will be taken to be the act of Public Prosecutor. In the cited case (Crl. M. P. 866 of 1977) the petitioner before this court who was the accused in C. C. 41 of 1976 objected to the grant of permission to the advocate appointed by the complainant to examine witnesses. The magistrate allowed the request. That cannot be assailed in view of S.302(2) which authorises the advocate engaged by the private party to conduct the prosecution without taking instructions from the Assistant Public Prosecutor. As the decision in 1978 KLT 816 arose in the above context, it has no application to the points urged in the present case. For the reasons stated above, the order of the Additional Sessions Judge overruling the objections of the revision petitioner and allowing the advocate briefed by the private party to examine the witnesses cannot be sustained. As already indicated in this order, the advocate can participate in the conduct of the prosecution under the direction of the Public Prosecutor. The order of the Court below is set aside. Criminal Revision Petition is allowed.