Research › Search › Judgment

Andhra High Court · body

2009 DIGILAW 779 (AP)

C. S. Y. SANKAR RAO v. STATE OF A. P.

2009-11-04

B.CHANDRA KUMAR

body2009
( 1 ) THIS petition is fileds seeking to implead the petitioner, who is de facto complainant, as respondentno. 2 in Cr. P. No. 8736 of 2009. ( 2 ) THE brief facts of the case are as follows: a-l and A-2 are the Directors of m/s. Luminus Energy Privatelimited, luminus House, Anita, near Grant Hyatt, vakola, Santa Crauz (E), Mumbai. As per the mutual agreement, the Luminus Energy private Limited lifted solar power supply systems worth Rs. 3,82,62,457/- on various dates with dishonest intention and issued post dated cheques to deceive, defraud and cheat the de facto complainant Company. When the de facto complainant presented those cheques on 01-2-2008 in State Bank of india, Somajiguda, the same were dishonoured. A-l and A-2, instead of paying the said amount, threatened the de facto complainant with dire consequences. ( 3 ) THE main contention of the learned counsel for the petitioner is that the de facto complainant has a right to put forth his case before the Court even at the stage of considering the applications for bail. He relied on the judgments in case between m/s. J. K. International v. State, Government of nct of Delhi (1) 2001 Crl. LJ. 1264 = 2001 (3)ALT24. 1 (DNSC);r. Rathinam v. Statehy DSP, districtcrimebranch,maduraidistrict,madurai (2) 2000 SC (Crl) 958; and Puran v. Rambilas (3)2001 (2) ALT (Crl.) 108 (SC)= (2001) 6scc 338. ( 4 ) LEARNED counsel for the respondent submitted that the de facto complainant has no right to put forth his case at the stage of hearing bail application. It is also his submission that there is no provision to enable the de facto complainant to implead himself as a party while considering the bail application of the accused. It is also his submission that if the de facto complainant or the victim is allowed to come on record at this stage, prejudice will be caused to the accused and the right to liberty granted to the accused person will be seriously affect. ( 5 ) THE only point that arises for cpnsideration is, whether the de facto complainant or the victim can be heard at the stage of considering the bail applications of the accused in a criminal cases. ( 5 ) THE only point that arises for cpnsideration is, whether the de facto complainant or the victim can be heard at the stage of considering the bail applications of the accused in a criminal cases. ( 6 ) IT is the duty of the State to protect the life and properties of its citizens and to prevent the crime and to punish the accused in accordance with law. As a,part of criminal justice delivery system, the Courts have been established and the Public Prosecutors have been appointed to assist the Courts in conducting trials and other criminal proceedings. The Public Prosecutors and the advocates are the officers of the Court. They have to assist the Court and place all the facts before the Court. The Public Prosecutors must present the facts without any bias and without undue emphasis on any aspect of the case leaving the decision to the Court. They have to act independently and in the interest of justice. The Pubic Prosecutors are not the representatives of the Investigating officers and the investigating agency. When a defect in the investigation or in the prosecution case is noticed by Public prosecutor, it is his duty to bring the same to the notice of the Court. They have to make fair submissions with regard to the facts and circumstances of the case and also legal position. In Vijay Valia's case (1986) Cri. LJ. 2093), it was held as follows: "the role of the prosecutor in any criminal trial (whether at the instance of the State or of a private party) is to safeguard the interests of both the complainant and the accused. The right to be heard includes the right to be represented by an able spokesman of one's confidence. This right belongs to the complainant and to the accused, both. The complainant also needs assistance. The prosecutor is bound by law and professional ethics and by his role as an officer of court to employ only fair measures. Hence, it cannot be said that when Special Public Prosecutors are appointed, whether paid by the state or by private party, the trial must be presumed to be biased". ( 7 ) IT is the duty of the Public Prosecutor to assist the Court in conducting the criminal trials and other criminal proceedings and represent the State. Hence, it cannot be said that when Special Public Prosecutors are appointed, whether paid by the state or by private party, the trial must be presumed to be biased". ( 7 ) IT is the duty of the Public Prosecutor to assist the Court in conducting the criminal trials and other criminal proceedings and represent the State. The main question that arises for consideration is whether the victim or the de facto complainant has any role to play in criminal proceedings and whether he should be heard. When a petition filed to quash the criminal proceedings, came up before the Apex Court in m/s. J. K. International's case (cited 1 supra), it was held as follows: "it is predominantly the concern of the state to continue the prosecution. But when the complainant wishes to be heard when the criminal proceedings are sought to be quashed, it would be negation of justice to him if he is foreclosed from being heard even after he makes a request to the Court in that behalf. What is the advantage of the court in telling him that he would not be heard at all even at the risk of the criminal proceedings initiated by him being quashed. It is no solace to him to be told that if the criminal proceedings are quashed he may have the right to challenge it before the higher forums. ( 8 ) IN the above referred case, the Apex court while dealing with Section 301 (2) of the Code of Criminal Procedure, observed as follows; "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 instruct 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". The said'provision falls within the chapter titled General Provisions as to Inquiries and Trials". When such a rule is permitted to be played by a private person, though it is a limited role, even in the Sessions Court, that is enough to showthat the private person, if he is aggrieved, is not wiped off from the proceedings in the criminal Court merely because the case was charge-sheeted by the police. When such a rule is permitted to be played by a private person, though it is a limited role, even in the Sessions Court, that is enough to showthat the private person, if he is aggrieved, is not wiped off from the proceedings in the criminal Court merely because the case was charge-sheeted by the police. It has to be stated further, that the Court is given power to permit even such private person to submit his written arguments in the court including the Sessions Court. If he submits any such written arguments the Court has a duty to consider such arguments before taking a decision. " ( 9 ) THE Supreme Court has also considered a similar issue while hearing a petition for cancellation of bail in Puran's case (cited 3 supra) and it was held as under; "the framework of Section 439 (2) Cr. P. C. indicates that it is a power conferred on the courts mentioned therein. There is nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public prosecutor moves a petition. The power so vested in the High court can be invoked either by the State or by any aggrieved party. The said power could also be exercised suo motu by the High court. Therefore, any member of the public, whether he belongs to any particular profession or otherwise can move the High Court to remind it of the need to exercise its power suo motu. There is no barrier either in Section 439 of the criminal Procedure Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High court considers that there is no need to cancel the bail then it can dismiss the petition. It is always open to the High court to cancel the bail if it feels that there are sufficient reasons for doing so. " In another case in R. Rathinam's case (cited 2 supra) the apex Court held as under:"the frame of sub-section (2) of section 439 indicates that it is a power conferred on the said courts. Exercise of that power is not banned on the premise that bail was earlier granted by the high Court on judicial consideration. " In another case in R. Rathinam's case (cited 2 supra) the apex Court held as under:"the frame of sub-section (2) of section 439 indicates that it is a power conferred on the said courts. Exercise of that power is not banned on the premise that bail was earlier granted by the high Court on judicial consideration. In fact the power can be exercised only in respect of a person who was released on bail by an order already passed. There is nothing to indicate that the said power can be exercised only if the state or investigating agency or even a public Prosecutor moves for it by a petition. The power so vested in the high Court can be invoked either by the state or by any aggrieved party. The said power can also be exercised suo motu by the High Court. If so, any member of the public, whether he belongs to any particular profession or otherwise, who has a concern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. There is no barrier either in Section 439 of the code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High court considers that there is no need to cancel the bail for the reasons stated in such petition, after making such considerations it is open to the High court to dismiss the petition. If that is the position, it is also open to the High court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is, therefore, improper to refuse to look into the matter on the premise that such a petition is not maintainable in law. " ( 10 ) THEREFORE, the above decisions make it very clear that there is no specific bar in hearing the de facto complainant or the victim at the stage of considering the applications for bail or cancellation of bail. Normally, it is the duty of the State and the Public prosecutor to prosecute the accused without any bias. " ( 10 ) THEREFORE, the above decisions make it very clear that there is no specific bar in hearing the de facto complainant or the victim at the stage of considering the applications for bail or cancellation of bail. Normally, it is the duty of the State and the Public prosecutor to prosecute the accused without any bias. If the private parties are allowed, there is every possibility of making biased representations and it may be difficult to find out the truth or otherwise of the allegations and the counter allegations. ( 11 ) ENMITY may be the root cause for committing the offences and it may also be a cause for implicating innocent persons in false cases. It is also a fact that in most of the cases, the victim or de facto complainant would be interested to secure conviction to real culprits. Normally, they would leave the real culprits and prosecute innocent persons. Again, there is another problem. The victims or de facto complainants may suspect the involvement of any person in an offence and their suspension may be true or may not be. But one thing is sure that the lawmakers in their wisdom have given opportunities to the de facto complainants and the victims. Section 154 (2) Cr. P. C. envisages that even when the State House Officer does not register a case when he is informed about the occurrence of a cognizable offence, the informant has been given an opportunity to inform the higher authorities i. e. , the superintendent of Police. Section 154 (2)Cr. P. C. envisages that any persons aggrieved by a refusal on the part of an officer in charge of police station to record the information referred to in sub-section (1) of Section 154 may send the substance of such information, in writing and by post, to the Superintendent of Police concerned, who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by Cr. P. C. and such officer shall have all the powers of an officer in charge of a police station in relation to that offence. ( 12 ) SIMILARLY, Section 200 Cr. P. C. and such officer shall have all the powers of an officer in charge of a police station in relation to that offence. ( 12 ) SIMILARLY, Section 200 Cr. P. C. also enables a private person i. e. , the de facto complainant, to file a complaint before the court. Sub-Section 2 of Section 301 Cr. P. C. is as follows: "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 he 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. " ( 13 ) THE above sub-section enables the private party to engage an Advocate and assist the Public Prosecutor. The definition of Public Prosecutor under Section 2 (u) of the code is as follows: "any person appointed under section 24, and includes any person acting under the directions of a Public prosecutor. " Thus, the provision under Code of Criminal procedure, 1973 provides opportunities to the victim or de facto complainant to represent their grievance. ( 14 ) EVEN though there is a danger of biased representation, the victims cannot be prevented from knocking the doors of the court and making their submissions. It should not be forgotten that it is the victim who is put to injury, physical or mental suffering. The victim is the ultimate looser. He is put to pain trouble, damage as a result of an offence. The victims are permanently deprived of their near and dear. In fact, no amount of compensation can bring back the lost life or limb. They are permanently deprived of their enjoyment and happiness of the company of the deceased. When, in a case, the deceased is the earning member, his wife and children would be driven to the streets. They may be deprived of their source of livelihood and they may not be in a position to fulfil their basis needs. Though section 357 (3) Cr. P. C. empowers the Court to award compensation to the victims, such orders made seldom. ( 15 ) IN fact, victims are forgotten at every stage. They may be deprived of their source of livelihood and they may not be in a position to fulfil their basis needs. Though section 357 (3) Cr. P. C. empowers the Court to award compensation to the victims, such orders made seldom. ( 15 ) IN fact, victims are forgotten at every stage. They face many problems from the moment they report the matter to police. They are not being treated as victims. In some cases, the victim and witnesses are put to unnecessary harassment by the police. They are not informed about the progress in investigation. They are not informed about the progress of the trial. They may have to come to Court on several occasions to complete their evidence. ( 16 ) IN view of the scope of the above referred sections and the whole scheme of the Code of Criminal Procedure and the public policy, I am of the view that though it is the primary duty of the State to conduct the prosecution, however, the victims are not totally barred in approaching the Court in appropriate cases and to represent their grievances. It is common knowledge that nowadays, in many cases the victims and the witnesses are not in a position to appear before the Court and depose without any fear or favour. They very criminal justice delivery system may fail and ultimately, justice may not bedone in serious and heinous criminal offences if the witnesses are not allowed to depose freely without any fear or favour. In view of the same, though there is a limited scope, I feel that the victims and the de facto complainants can be heard at the stage of considering the bail applications or cancellation of bail with the permission of the Court and as supplementary to the arguments advanced by the Public prosecutor. Whatever the de facto complainant or the victim has to say initially, they must act as per the directions and under the instructions of the Public Prosecutor. But, however, the Court may in appropriate cases if comes to a conclusion that in the interest of justice, it is necessary to hear the de facto complainant or the victim they may be heard. However, the discretion has to be exercised judiciously with reasonable care and caution. ( 17 ) SUBJECT to the above observations.