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2008 DIGILAW 742 (GAU)

Firoz Khan v. State of Assam

2008-09-29

H.N.SARMA

body2008
JUDGMENT H.N. Sarma, J. 1. This revision petition is directed against the order dated 4.4.2008 passed by the learned Additional District and Sessions Judge, (FTC), Dibrugarh, in Sessions Case No. 167/2007, allowing the prayer of the complainant for engaging private lawyer along with the Public Prosecutor. 2. I have heard Mr. P.J. Saikia, learned Counsel for the petitioner. In view of the assumed importance on the point that posed for decision, Mr. A.K. Phookan, learned Advocate General, Assam, was also heard being assisted by Mr. Z. Kamar learned P.P. and Mr. K. Munir learned A.P.P., Assam. 3. The prosecution story leading to the aforesaid Sessions Case, inter alia, in brief, is that one Niaz Ahmed who was the owner of plot of a landed property at Dibrugarh town, Assam, constructed houses thereon and allowed some persons to stay therein. On 5.4.2007, a quarrel arose relating to relating to the possession over the aforesaid land. In the process grievous injuries were sustained by the victims caused by the iron rod and dao. The injured were shifted to the hospital and subsequently one of them, namely Niaz Ahmed succumbed to the injuries. An ejahar having been lodged with the Officer-in-Charge, Dibrugarh Police Station, the Police registered a Case under Sections 324/302/34, IPC. Upon completion of the investigation, having found strong prima facie case against the accused petitioners, the Police submitted charge sheet and filed before the learned Chief Judicial Magistrate, Dibrugarh, who eventually committed the case to the learned Sessions Judge, Dibrugarh, it being triable by a Sessions Court. 4. During the course of trial in the court of the learned Additional District & Sessions Judge (FTC), Dibrugarh, on 18.12.2007, an application was filed by the complainant praying for allowing to engage a private lawyer in the case on behalf of the informant. After hearing the learned Counsel for the parties, the learned trial Judge, vide the impugned order dated 18.12.2007, allowed the prayer of the complainant and allowed to engage a private lawyer to assist the Public Prosecutor. The petitioners objected to the said permission granted to the complainant by filing written objection on 7.3.2008. After hearing the learned Counsel for the parties, the learned trial Judge rejected the same vide order dated 4.4.2008, which is challenged in this revision petition. 5. The sole contention raised by, Mr. The petitioners objected to the said permission granted to the complainant by filing written objection on 7.3.2008. After hearing the learned Counsel for the parties, the learned trial Judge rejected the same vide order dated 4.4.2008, which is challenged in this revision petition. 5. The sole contention raised by, Mr. Saikia is that a private party/complainant may engage a lawyer on his behalf but his role is to be limited only to act under the direction of the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, and such a lawyer cannot be permitted to the extent of allowing him to examine the prosecution witnesses. Mr. Saikia further submits that the learned trial Judge having allowed the private lawyer to be engaged by the informant and allowing him to examine the prosecution witnesses, created a situation that amounts to conducting the case by such private lawyer only, which is not permissible under the law. 6. The aforesaid contention of Mr. Saikia led the court to examine the extent to which a private lawyer can act in such a case. Mr. Phookan, learned Advocate General, Assam, has highlighted the various provisions of Cr.P.C. including Sections 301 and 302 having relevance to the issue and submits that the Legislature has provided such privilege to a private person who is necessarily interested in the prosecution case to engage a private lawyer to prosecute any person in any court, but such lawyer shall act under the direction and guidelines of the Public Prosecutor or Assistant Public Prosecutor who is in-charge of the case and the court is the best Judge to decide the situation, manner and extent to which such a lawyer may be permitted to act in the proceeding. 7. The following decisions were cited at the Bar during the course of hearing. (1) Anglo French Drug Co. v. R.D. Tinaikar AIR 1959 Bom. 21 . (2) Bhupalli Malliah and Ors. Prisoners, In re. AIR 1959 AP 477. (3) Roop K. Shorey Rilm Producer Bombay v. The State AIR Pun. 42. (4) Rakhal ojha In re. 1988 Cri. LJ 278. (5) J.K. International v. State (Govt. of NCT of Delhi) and Ors. (2001) 3 SCC 462 . (6) Zahira Habibula H. Sheikh and Anr. v. State of Gujarat and Ors. (2004) 4 SCC 158 . 8. (3) Roop K. Shorey Rilm Producer Bombay v. The State AIR Pun. 42. (4) Rakhal ojha In re. 1988 Cri. LJ 278. (5) J.K. International v. State (Govt. of NCT of Delhi) and Ors. (2001) 3 SCC 462 . (6) Zahira Habibula H. Sheikh and Anr. v. State of Gujarat and Ors. (2004) 4 SCC 158 . 8. Having heard the learned Counsel for the petitioner and the learned Advocate General, Assam, I have given my anxious consideration to the issues involved in the case. 9. As per the scheme of the Code of Criminal Procedure, a Sessions case is to be conducted by the Public Prosecutor or Assistant Public Prosecutor, as the case may be, but Section 301(2) is an exception to the above to a certain extent/principle. "Public Prosecutor" is defined in Section 2(u), Cr.P.C., as any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor. Section 24, Cr.P.C., prescribes the procedure for appointment of a "Public Prosecutor" by the Central Government or the State Government. Section 302, Cr.P.C., empowers any Magistrate enquiring into or trying a case to permit the prosecution to be conducted by any person other than a police officer not below the rank of Inspector, if such person is Advocate General, Public Prosecutor or Assistant Public Prosecutor, no permission is required from the Magistrate to conduct the case. As per the provision of Chapter XVIII, Sessions case is to be tried by a Sessions Judge. Under Section225, Cr.P.C., in every trial before a Court of Sessions, the prosecution shall be conducted by a Public Prosecutor. Thus, in a Sessions Case other than the Public Prosecutor or Assistant Public Prosecutor, as the case may be, no other person is entitled to conduct the prosecution case and the provisions of Section 302, Cr.P.C., is not applicable in the case of sessions trial. 10. In this connection, we may profitably rely on the decision of the Apex Court in the case of Shiu Kumar v. Hukum Chand and Anr. (1999) 7 SCC 467 , wherein it has been held in paragraph-14 of the judgment as follows: It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. (1999) 7 SCC 467 , wherein it has been held in paragraph-14 of the judgment as follows: It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter. 11. In the above situation, the power, extent and jurisdiction of a lawyer engaged by private party may be traced from Section 302(1), Cr.P.C. Section 301(2), Cr.P.C., clearly provides that such lawyer "shall act under the directions of Public Prosecutor of Assistant Public Prosecutor" and he may also submit written argument after the evidence is closed, but only with the permission of the court. 12. The role of the Public Prosecutor is highlighted in the Decision of the Full Bench of the Allahabad High Court in Queen Impress v. Durga ILR 1894 All. 84, which has got its approval of the Apex Court in Shiu Kumar (supra). In the said case the duties and the responsibilities of the Public Prosecutor has been indicated as follows: It is the duty of the Public Prosecutor to conduct the case for the Crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the Crown, to see that injustice is vindicated : and, in exercising his discretion as to the witnesses whom he should or should not call, he should bear that in mind. In our opinion a Public Prosecutor should not refuse to call or put into the witness-box for cross-examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favourable to the defence. In our opinion a Public Prosecutor should not refuse to call or put into the witness-box for cross-examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favourable to the defence. If a Public Prosecutor is of opinion that a witness is a false witness or is likely to give false testimony if put into witness-box, he is not bound, in our opinion, to call that witness or to tender hid for cross-examination. In Shiu Kumar (supra) also the Apex Court observed on the role of the Public Prosecutor as follows: From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by any one other than the Public Prosecutor. The Legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. 13. The scheme of the Code laying down the provisions for conducting a sessions trial, disclose that the legislative intention for conducting such sessions trial is that such cases should be conducted only by the Public Prosecutor, but the complainant may also privately engage a lawyer to support the prosecution case and in such case such private lawyer is to act under the directions and guidance of the Public Prosecutor. 14. Let us now examine and consider the extent to which the words "shall act" as appearing in Section 301, CrPC, can be stretched and to what extent the Public Prosecutor can allow such privately engaged lawyer to act. This again be examined keeping in view the legislative mandate that the Public Prosecutor or the Assistant Public Prosecutor, in-charge of the case shall conduct the case. Hence, in practice a balance is to be maintained between the power to "conduct" the sessions triable prosecution case by the Public Prosecutor and the authority of the privately engaged lawyer to "act" under the "directions of the Public Prosecutor". In such a case, it is the Public Prosecutor and not the privately engaged lawyer who is to conduct the prosecution case. In such a case, it is the Public Prosecutor and not the privately engaged lawyer who is to conduct the prosecution case. Accordingly, the Public Prosecutor, although a private lawyer is engaged in favour of the prosecution, is not entitled to abdicate his function as prosecutor and he must control the proceeding; otherwise that would amount to abjure the legislative mandate and intent, empowering the Public Prosecutor to conduct the sessions trial. The Public Prosecutor is to take the necessary steps for calling for the prosecution witnesses under his own signature, produce before the court necessary documentary evidence to be exhibited in the trial and so on. The privately engaged lawyer is not to be given a free hand to conduct the proceeding, which is for the purpose as indicated in the case of Shiv Kumar (supra) by the Apex Court for the reason that it he is allowed a free hand to conduct the prosecution case, he would focus on bringing the case to conviction even if it is not a fit case to be so convicted and that is the reason as to why the parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor. But what should be the parameter of such instructions and how far such instructions can be extended, that is a matter of fact to be decided by the Public Prosecutor under the supervisory control of the presiding Judge of the court. 15. In the case of Bhupalli Malliah and Ors., Prisoners (supra), a learned Single Judge of the Andhra Pradesh High Court interpreted the words "to conduct" mean "to lead, get and manage" and the Section 493 (Old Code), merely requires that the Public Prosecutor should guide the prosecution and direct the privately engaged lawyer. The learned Single Judge further observed that "I do not think that any legal principle or purpose of criminal administration is involved in excluding a counsel merely on the ground that the complainant has briefed him, if he conforms to the normal standard of advocacy. The learned Single Judge further observed that "I do not think that any legal principle or purpose of criminal administration is involved in excluding a counsel merely on the ground that the complainant has briefed him, if he conforms to the normal standard of advocacy. But on practical consideration, obviously, the office of the Public Prosecutor is not a sincere appointment and it is an undesirable practice to allow him unless it be on the ground of personal inconvenience or other necessity, to get his duties performed by a proxy, whenever a private person engages a pleader for that purpose". 16. Again in the case of Roop K. Shorey (supra), a Single Judge of the Punjab High Court has opined that so long as the Public Prosecutor does not abdicate his function retained with him, his control over the proceeding, a private layer can examine or cross-examine or even address arguments. In this connection, the decision rendered in the case Anglo French Drugs Co. (supra), as referred to by the learned Advocate General has much relevance in order to highlight the purport and meaning of the terminology "act". In the aforesaid case interpreting Section 80 of the Trade Mark Act, 1940, it has been held by the learned single Judge that the narrow meaning need not be given to the words "shall act" appearing in Section 80 and there is nothing to control of the meaning of the word "act" as used in that section. It is referable to all kinds of act, when person is required to do by or under the Trade Marks Act. It may be the act of making a submission, it may be the act of filing an affidavit, it may be the act of leading evidence, it may be the act of pleading before the Registrar to support the application. The word used there is wide enough to cover all these activities and it is intended exclude an "act" of making an affidavit, the word "otherwise than" making an affidavit have been inserted in that section. Thus, the word "act" as used in Section 80 is wide enough to cover an act of pleading and, hence, is entitled to plead before the Registrar, Trade Mark Act. In deciding the aforesaid, case, the learned Judge also took aid of the meaning of the word "act" appearing in Order 3, Rule 1, CPC. 17. Thus, the word "act" as used in Section 80 is wide enough to cover an act of pleading and, hence, is entitled to plead before the Registrar, Trade Mark Act. In deciding the aforesaid, case, the learned Judge also took aid of the meaning of the word "act" appearing in Order 3, Rule 1, CPC. 17. In the case of J.K. International (supra), the Apex Court had the occasion to deal with the provisions of Section 302, Cr.P.C., but the observations made in paragraph-9 has got relevance to the present case, wherein the Apex Court held, inter alia that the scheme envisaged in the Code of Criminal Procedure indicates that a person who is aggrieved by the offence committed is not altogether wiped out from the scenario merely because the investigation was taken over by the police and charge sheet filed by them and even the court has taken cognizance of the offence and is not debarred him from reaching the court for ventilating his grievance even in the Sessions Court where the Public Prosecutor is the authority empowered to conduct the case as per Section 225, Cr.P.C., and he or she is not altogether debarred from participating in the trial. When such a role is permitted to a private lawyer though it is limited role, even in the sessions case that is enough to show that the private person, if aggrieved, is not wiped out from the proceeding in the criminal court. 18. It is noteworthy that the recent trend in criminal jurisprudence goes to show, which is also the anxiety of the people that in a criminal case instituted on the basis of an FIR lodged by the victim/informant, he should be allowed to say, inasmuch as, the limited role allowed to a complainant under Section 301(2), Cr.P.C., is not sufficient to protect the interest of the victim who might be silently weeping behind the screen suffering from the criminal act committed by the accused and this has lead to emergence of a new concept of "victimology" in the criminal jurisprudence. However, that is the function of the Legislature and not of the court to incorporate. 19. However, that is the function of the Legislature and not of the court to incorporate. 19. The aforesaid discussions lead me to hold that when the Public Prosecutor has not abdicated himself from his role and constantly supervises and conduct the prosecution case, there is no bar in any law to engage private lawyer by the complainant/victim to examine the witnesses, which is also not specifically barred by the Code in express terms. However, it is the presiding Judge who is the best authority to monitor and see as to whether the Public Prosecutor has abdicated his duties and responsibilities and in allowing the private lawyer to assist the prosecution and act as per the facts situation arising in a particular case. The learned Advocate General, in the backdrop of the above provisions of law did not notice any flaw in the impugned order. 20. In view of the facts and circumstances appearing in the instant case, I do not find that the learned trial Judge has committed any illegality or irregularity in passing the impugned order. However, the learned Judge would be vigil about the act of the Public Prosecutor in the case and be jealous to watch that the Public Prosecutor retains overall control of the prosecution upon himself. In view of the above discussions, this revision petition being devoid of merit stands dismissed. 21. Before parting with the case the court record the appreciation for taking the pain to assist the court by Mr. A.K. Phookan, learned Advocate General, Assam, with his valuable and laudable efforts in arriving at the solution. Petition dismissed.