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2009 DIGILAW 781 (AP)

Harsha Sisodia v. State of A. P.

2009-11-04

B.CHANDRA KUMAR

body2009
JUDGMENT (1) Since common facts and point of law are involved in all these petitions and common arguments have been advanced, they are being disposed of by this common order. (2) The brief facts of the case are as follows : The petitioner, by name, Harsha Sisodia W/o late Rajeev Sisodia, is a Listed Witness No. 3 in Sessions Case No. 259 of 2009 on the file of the I Additional Metropolitan Sessions Judge, Hyderabad. The prosecution case is that Vaibhav Sisodia alias Abishek Sisodia-A1 is the cousin of the deceased Rajeev Sisodia. The deceased and A1 were doing joint business in auto finance. A1 started jewellery business by investing an amount of Rs. 30,00,000/- from the joint account of the deceased and A1's father. A1 addicted to vices and was spending lavishly. The deceased warned A1 to mend his ways. The deceased became an obstacle in the way of A1. So, A1 hatched a plan to do away with the life of the deceased. A1 entered into a conspiracy with A11 and hired assassins from Karnataka State and agreed to pay them Rs. 7,00,000/- to kill the deceased. He paid an amount of Rs. 3,50,000/- as advance. As per the plan hatched by A1, attempts were made by some of the accused to kill the deceased but they could not execute their plan. Finally, on 31-10-2008 at about 6.30 p.m. A2 to A6 took position at various places with deadly weapons and watched for the deceased. The deceased came in a Maruti Zen and stopped the car in front of his house. When the deceased was about to get down from the car, A2 fired at him with a pistol into the head resulting in the death of the deceased at the spot. The prosecution case is that A1 is the prime accused, who had mastermind and financed to murder the deceased. A2, A4, A8 and A9 are residents of State of Karnataka. A3, A5, A6 and A7 are the residents of Medak District. (3) The petitioner's case is that A3, A5, A6 and A7 are residents of Medak District, hired assassins, and if they are released on bail, they would abscond and trial would be delayed and that the petitioner will not get any justice. It is also her case that L.W. 4-B. Kamalchand Jain is a practising Advocate and appearing on behalf of A1 in this case. It is also her case that L.W. 4-B. Kamalchand Jain is a practising Advocate and appearing on behalf of A1 in this case. It is also her case that A1 is a rich person and that there is a lot of pressure on her to compromise the case and that the accused may influence the witnesses. It is also her case that there is every threat to her life also. It is also her case that A8, who hails from Karnataka State, committed another offence punishable under the provisions of the Arms Act and NDPS Act v/ithin two days after his release. It is also her case that A8 had threatened the brother of A1 for recovery of the balance amount, which was agreed for eliminating the deceased. It is also her case that the accused are deliberately delaying the process of law. In the above circumstances, she pleaded that she may be impleaded as respondent No. 2 in the above criminal petitions. (4) COUNTER has been filed by the second respondent-A9 mainly contending that the allegations made by the petitioner are baseless and that the petition is not maintainable and that there is provision of law to implead the petitioner at the stage of bail. It is also contended that the petitioner is not a de facto complainant and she is only a listed witness and that she has no right to come on record in these petitions. It is also submitted that all the allegations made by the petitioner are false and that there are no eye-witnesses to the occurrence. It is also contended that A9 never indulged in business activities and that he is a student of B.Com and hails from Karnataka State and therefore, the question of tampering the witnesses doe not arise. It is also contended that A9 is in jail since more than eleven months and if bail is granted to A9, the petitioner will not be put to any loss or injury. The main contention of the learned counsel for the petitioner is that though the petitioner is not a de facto complainant she is the wife of the deceased and that she is the victim in this case and that that victim has a right to put forth her 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, 2001 Cri LJ 1264 : AIR 2001 SC 1142 ; R. Rathinam v. State by DSP, District Crime Branch, Madurai District, Madurai, 2000 SCC (Crl) 958 : 2002 Cri LJ 586 : AIR 2002 SC 299 and Puran v. Rambilas (2001) 6 SCC 338 : 2001 Cri LJ 2566 : AIR 2001 SC 2023 . (5) Learned counsel for the respondent submitted that the petitioner is not a de facto complainant and she is only listed as L.W. 3 and a witness has no right to put forth her case at the stage of hearing bail application. It is also his submission that there is no provision to enable the witness to implead herself 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 affected. (6) The only point that arises for consideration 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 case. 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 Public 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 act independently and in the interest of justice. The Public 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 (1988) Crl 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. 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 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. 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 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". 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 show that 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" The Supreme Court has also considered a similar issue while hearing a petition for cancellation of bail in Puran's case (cited supra) and it was held as under : "The framework of Section 439(2) Cr. PC. 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 Hig h 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. 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 Hig h 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 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. 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." (9) 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. (10) 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 Station 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. Section 154(2), Cr. P.C. envisages that even when the Station 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 person 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. Similarly, Section 200, Cr. P.C. also enables a private person i.e. the de facto complainant, to file a complaint before the Court. (11) 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 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." (12) 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 opposites to the victim or de facto complainant to represent their grievance. Even though there is a danger of bi-. ased representation, the victims cannot be prevented from knocking the door 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. Even though there is a danger of bi-. ased representation, the victims cannot be prevented from knocking the door 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 2nd 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 fulfill their basic needs. Though Section 357(3) Cr. P.C. empowers the Court to award compensation to the victims, such orders made seldom. (13) 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 come cases, the victim and witnesses are put to unnecessary harassment by the police. They are not informed about the progress in in-, vestigation. They are not informed about the progress of the trial. They may have to come to Court on several occasions to complete their evidence. (14) 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. The very criminal justice delivery system may fail and ultimately, justice may not be done in serious and heinous criminal offences if the witnesses are not allowed to depose freely without any fear or favour. The very criminal justice delivery system may fail and ultimately, justice may not be done 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. Subject to the above observations, all the Crl. M.Ps. are allowed.