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2003 DIGILAW 84 (GAU)

Labanya Devi v. State of Assam

2003-02-25

B.B.DEB

body2003
JUDGMENT B.B. Deb, J. 1. Heard Mr. S.C. Biswas and Mr. A.K. Hussain. Also heard learned Government Advocate. 2. Allegedly the husband of the Petitioner, Mr. Akan Sharma succumbed to the injuries due to Police atrocities while was in Police custody on 13.2.02. Initially, the Police was reluctant to register any criminal case. Being compelled, the widow-Petitioner lodged a criminal complaint before the Chief Judicial Magistrate, Nalbari. The case was transferred to the learned SDJM, Nalbari and the learned SDJM, Nalbari took cognizance, exhausted the provision of Section 202 Code of Criminal Procedure and issued process against as many as 5 police official as accused persons. After commitment, the learned Sessions Judge, Nalbari framed charge under Section 302 IPC against all the accused Police officials. After commitment, the learned Public Prosecutor failed to expose keenness in conducting the case, rather at the time of hearing of bail matter, the learned Public Prosecutor had remained silent in allowing the bail petition to be granted. In granting bail, the learned Sessions Judge vide his order dated 1.7.02 observed as follows: Considering the facts and circumstances before me, the learned PP also did not object to the bail petition and conceded that, the bail petition of the accused persons may be allowed. 3. The Petitioner also made representation to the Secretary, Legal Service authority, Government of Assam on 19.2.03 seeking appropriate remedy. But, unfortunately that was not attended to. By representation dated 19.2.03, the Petitioner requested the Legal Remembrancer, Government of Assam to provide her with a lawyer of her choice. The related part of her prayer is reproduced below: That in my application I have also requested not to allow the PP of Nalbari to conduct my case as he did not object the bail of the accused Police officer and as such I have no confidence on him but the Learned Sessions Judge has refused to entertain my prayer and even refused to number my petition and the prayer before your Honour to provide me legal aid by directing the Sessions Judge, Nalbari to write to allow to engage her own advocate to conduct her case or to provide a lawyer except PP to conduct her case for the ends of fair trial. 4. 4. In view of Section 225 of Code of Criminal Procedure any trial before a Court of Sessions is to be conducted by the Public Prosecutor notwithstanding the case is based on Police challan or on a complaint case. 5. A criminal case of cognizable offence could be instituted on either of the two channels viz. by lodging formal FIR with the Police station or by filing a complaint petition before the competent Magistrate under Section 190 of Code of Criminal Procedure. So far the complaint cases are concerned, in a warrant case the complainant has the right to engage a lawyer of his or her own choice. But in a Police challan case, the learned APP is to conduct the case. So far the sessions trial cases are concerned, the same shall be conducted by the Public Prosecutor irrespective of the source of filing. If a victim or aggrieved person loses his/her confidence in the Public Prosecutor for a tangible reason, there shall be some remedy provided under the Act. To meet the aforesaid contingencies, the Parliament has incorporated Sub-section (8) of Section 24 in the Code of Criminal Procedure which runs as follows: (8). The Central Government or the State Government may appoint, for the purpose of any case or class of cases, a person who has been in practice as an advocate for not less than 10 years as a Special Public Prosecutor. 6. That provision is, in addition to the provision of Sub-section (3) of Section 24 Code of Criminal Procedure. In view of Sub-section (3) of Section 24 Code of Criminal Procedure there shall be a Public Prosecutor or Additional Public Prosecutor appointed by the Central Government or as the case may be, the State Government to conduct all sessions cases before the Sessions division. The provision of Sub-section (8) is in addition to Sub-section (3) of Section 24 of Code of Criminal Procedure. 7. Having regard to the facts and circumstances of the case, it reveals that justice demanded an advocate to be appointed as Special Public Prosecutor pursuant to the provision of Sub-section (8) of Section 24 of Code of Criminal Procedure to conduct the present prosecution wherein the Police officials are facing trial. 8. 7. Having regard to the facts and circumstances of the case, it reveals that justice demanded an advocate to be appointed as Special Public Prosecutor pursuant to the provision of Sub-section (8) of Section 24 of Code of Criminal Procedure to conduct the present prosecution wherein the Police officials are facing trial. 8. If in any appropriate case, it is found that the Government has not acted in accordance with the provision of Section 24(8) Code of Criminal Procedure or kept the matter pending, then, undoubtedly the High Court will come forward to press the provision of Section 24(8) of Code of Criminal Procedure pressed in service. 9. Learned Government Advocate submits that the representation filed by the Petitioner seeking appointment of Special Public Prosecutor received the attention of the authority and the matter is under active consideration. "Active consideration" deserves to be accelerated so that a competent lawyer could be appointed within a period of seven days from today. Before appointing the special P.P., the Petitioner may be taken into confidence. The learned Sessions Judge concerned is directed to adjourn the hearing of the case at least for a fortnight. 10. With the above observation and direction the writ petition is disposed of. Supply a copy of this order to the learned Counsel of both the parties. The learned Government Advocate is to forward a copy of this order to the legal Remembrancer, Government of Assam for compliance. A copy of the order be also sent to the learned Sessions Judge, Nalbari for compliance.