Research › Search › Judgment

Gujarat High Court · body

2010 DIGILAW 586 (GUJ)

P. B. Desai v. State of Gujarat

2010-12-14

JAYANT PATEL, S.R.BRAHMBHATT

body2010
JUDGMENT JAYANT PATEL, J. (1) The present reference arise on account of the order passed by Additional Principal Judge of Court No.2, City Civil Court, Ahmedabad below Exh.19, whereby the learned Judge found that the questions of law arise for interpretation of section 225 of the Code of Criminal Procedure (hereinafter referred to as "the Code") in order to maintain the spirit behind the Code and therefore, the reference. (2) In order to understand the genuineness of the question referred by the learned Sessions Judge, the factual background of the case is required to be considered which has led the learned Judge to refer the matter to this Court under section 395(2) of the Code. It appears that a private complaint came to be filed by Mr.Pankaj Modi under the Prevention of Corruption Act against AUDA and the concerned officers and the learned advocate who represented the matter of the complainant was Mr.V.H. Brahmbhatt. Based on the said complaint, the investigation was ordered by the Court and the report was also ordered to be submitted. It appears that thereafter, the report was submitted under section 173 of the Code by the investigating officer stating that no offence appears to have been made out. At that stage, the original complainant through Mr.Brahmbhatt raised the objection for acceptance of the report of the Investigating Officer and the Court accepted the objection of the original complainant and did not accept the summary report, but found that on the basis of the material, prima facie the offence can be said to have been committed and therefore, the cognizance was taken and the process was issued to the accused. The accused also appeared in the matter and thereafter, it appears that the matter came up for further proceeding before the learned Special Judge (hereinafter referred to as "Sessions Court" for the sake of convenience) for conducting of the trial for the alleged offence under the Prevention of Corruption Act. It appears that in the meantime, the original complainant Mr. Pankaj Modi expired on 25.11.2008. Therefore, when the matter came up before the learned Sessions Judge, an application Exh.19 was submitted on behalf of the accused nos. It appears that in the meantime, the original complainant Mr. Pankaj Modi expired on 25.11.2008. Therefore, when the matter came up before the learned Sessions Judge, an application Exh.19 was submitted on behalf of the accused nos. 3,4 and 5 contending that the case is to be tried as per the provisions of the Prevention of Corruption Act read with the provisions of the Code and the complainant has expired on 25.11.2008, the relationship of the complainant and his advocate comes to an end and the learned advocate Mr.Brahmbhatt has no right to conduct the matter on behalf of his client. It was also submitted that as per the provisions of sections 225 to 235 of the Code, and more particularly section 225 of the Code, provides that on behalf of the complainant, only the Public Prosecutor has a right to conduct the case and therefore, the direction be issued to the Public Prosecutor for conducting of the case. The said application came to be heard by the learned Sessions Judge and considering the facts and circumstances of the case, he found that as per the provisions of section 225 of the Code, the trial has to be conducted by the Public Prosecutor, but keeping in view the factual background that the investigating machinery had not properly undertaken the task, it cannot be entrusted with the work of prosecuting the case and therefore, if the letters of law is to follow, the spirit behind the law would be lost. The learned Judge further found that as per the observations made by the Apex Court in the case of Salem Advocate Bar Association Vs. Union of India, reported in (2005) 6 SCC 344 , the Court has to play a proactive role and therefore, the learned Judge found that the question with regard to locus of Shri Brahmbhatt who was the advocate of the original complainant and his right to conduct the proceeding as an advocate even after the death of the private complainant would rest on the interpretation of section 225 of the Code and the Sessions Court has to maintain the spirit of section 225 of the Code, and therefore has referred the matter to this Court under section 395(2) of the Code and hence, the present petition. Heard Mr.Nanavati, learned APP who assisted the Court. (3) Section 225 of the Code reads as under: "225. Heard Mr.Nanavati, learned APP who assisted the Court. (3) Section 225 of the Code reads as under: "225. Trial to be conducted by Public Prosecutor. In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor." (4) On a plain and literal interpretation, it is clear that every trial before the Court of Sessions has got to be conducted by a Public Prosecutor. The word "Public Prosecutor" has been defined under section 2(u) of the Code, which reads as under: "u) "Public prosecutor" means any person appointed under section 24, and includes any person acting under the directions of a public prosecutor;" Section 24 of the Act provides for Public Prosecutor and as per sub-section (4) of section 24, the District Magistrate has to prepare a panel in consultation with the learned Sessions Judge of the persons who in his opinion are fit to be appointed as Public Prosecutor or Additional Public Prosecutor for the district. Sub-section(7) of section 24 provides for the minimum eligibility criteria of 7 years practice to be appointed as Public Prosecutor or the Additional Public Prosecutor and sub-section (8) provides for minimum ten years practice for appointment as Special Public Prosecutor by the Central Government or the State Government. The pertinent aspect is that the proviso has been inserted in sub-section (8) with effect from 31.12.2009 by Act No.5 of 2009, which reads as under: "Provided that the Court may permit the the factum to engage an advocate of his choice to assist the prosecution under these special section" (5) We may also record that Chapter IX provides for information to the police and their power to investigate. Whereas, Chapter XIV provides for cognizance of the offences by the Magistrate as well as by the Court of sessions. (6) The aforesaid makes it clear that the role of the complainant in filing the complaint is one thing, the investigation of the complaint and the submission of the report by the investigating officer is another thing and conducting of the matter by the Public Prosecutor is also a separate thing altogether. (6) The aforesaid makes it clear that the role of the complainant in filing the complaint is one thing, the investigation of the complaint and the submission of the report by the investigating officer is another thing and conducting of the matter by the Public Prosecutor is also a separate thing altogether. Merely because a complaint is filed by the complainant and upon his complaint, the cognizance is taken by the Court, the complainant would not be in a position to step into the shoes of the State but the role of the complainant would be to put the investigating machinery into the motion in accordance with law. Once a complaint is registered or a private complaint is filed in the Court and the Court has directed for investigation, it is for the investigating officer to investigate into the offence as per the provisions of the Code by ensuring that the offenders are booked and innocent persons are not harassed by maintaining the spirit of the investigation. The role of the Public Prosecutor is to prosecute the case of the State and the Public Prosecutor is independent as per the scheme after the offence is investigated and the cognizance is taken by the Court. Therefore, even if the investigating officer did not properly submit the report for constitution of the offence, but once the Court has taken cognizance of the offence, it would be the duty of the Public Prosecutor to properly prosecute the matter for ensuring that all relevant evidence for proving the case against the accused are placed before the Court in a fair manner without prejudicing the rights of the accused to defend the case at the trial. Therefore, in our view, when the role of the Public Prosecutor is different and independent, merely because at one point of time, the investigating officer had submitted the summary report before the Court may be on account of misunderstanding of the facts or law can hardly be a valid ground to proceed on the basis that after the Court has taken cognizance, the Public Prosecutor shall not properly discharge the duty which is cast upon him. It is hardly required to be stated that any decision of the High Court or Supreme Court are to be considered in light of the facts of the said case and the principles laid down by the Court. It is hardly required to be stated that any decision of the High Court or Supreme Court are to be considered in light of the facts of the said case and the principles laid down by the Court. In the case of Naranbhai Sadabhai Parmar Vs. Barot Nandlal Khodidas reported at 1983(1), GLR 522, this Court (Coram:D.C. Gheewala, J, as he then was) inter alia at para 10 had observed that : "As son as the case is committed to the court of Sessions, as provided in sec.225 of the Code, the Public Prosecutor shall be incharge of the case. The only right which a private complainant or his advocate may have would be to sit by the side and assist the public prosecutor and as best as provided in sec.301, sub-clause (2), he may submit written arguments if the court permits at the close of the evidence." (7) In the another decision of this Court in the case of Manharlal I Shah Vs. Yogeshkumar Kanaiyalal Saraia reported at 1987(1) GLR 608 , it has been clearly observed at para 9 as under: "....in every trial before the Court of Sessions, the prosecution shall be conducted by a public prosecutor. Right of private person to prosecute an offender by a lawyer of his own choice is thus made subordinate to the right of the State; and it is for this reason that when the State takes up the case and the Public Prosecutor appears on its behalf, the private person or the lawyer instructed to appear for him has no right of audience unless permitted by the Public Prosecutor." (8) In the decision of the Apex Court in the case of Shivkumar Vs. Hukam Chand and another reported in (1997) 7 SCC 467, it was observed by the Apex Court at paras 13 and 14 as under: "13. 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. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor." 15. 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 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." In the subsequent decision of the Apex Court in the case of Abhilasha and another Vs. 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." In the subsequent decision of the Apex Court in the case of Abhilasha and another Vs. State of Rajasthan and others reported at (2000) 10 SCC 237 , the Apex Court inter alia observed as under: "The sole grievance of the petitioners is that though in course of trial several illegalities are being committed, yet the Public Prosecutor is not taking appropriate steps and when the High Court was moved invoking jurisdiction under Section 482, the High Court had dismissed the same on the ground of locus. According the petitioners who happened to be the wife and brother of the deceased, there will be a gross miscarriage of justice, if the informants, who are the most aggrieved persons are not permitted to assist the Public Prosecutor in conducting the trial. It has been held by this Court that an informant cannot as of a right, claim to pursue the trial in a case of murder, though he may assist the Public Prosecutor. (9) The aforesaid right of the original complainant or an informant to assist the Public Prosecutor was read as per the above referred decision and thereafter, as referred to hereinabove, with effect from 31.12.2009, proviso has been inserted in sub-section (8) of section 24 of the Code whereby the Parliament has expressly provided that the Court may provide the victim to engage an advocate of his choice to assist the Public Prosecutor. (10) The aforesaid goes to show that the position of law is clear on the aspects of interpretation of section 225 of Cr.P.C. and the limited right of the victim or the original complainant to assist the Public Prosecutor if it is so provided by the Court. (10) The aforesaid goes to show that the position of law is clear on the aspects of interpretation of section 225 of Cr.P.C. and the limited right of the victim or the original complainant to assist the Public Prosecutor if it is so provided by the Court. Even if it is considered that the Court is required to play the proactive role while conducting the trial, as observed by the learned Sessions Judge by referring to the decision of the Apex Court in the case of Salem Advocate Bar Association (supra), it can hardly be accepted that such proactive role to be played by the Court of Sessions Judge would be to transgress the letters of the statute or to nullify the express provisions of the Code. When section 225 itself specifically speaks for the trial to be conducted by the Prosecutor, if it is read that the trial can be conducted by the advocate of the original complainant or the victim, the provisions of section 225 shall stand nullified or in any event, its effect shall be diluted. We may mention that the proactive role on the part of the Court of Sessions Judge would be to supplement the law and it cannot be read to nullify or dilute the statutory provision. It is only when the constitutional Court is interpreting the section in exercise of its constitutional power, the Court may read down the statutory provision if it is so found by the Court to do so while saving the statutory provision instead of declaring the same as ultra vires to any provisions of the Constitution. But when the provisions of section 225 is clear in its own language coupled with the aforesaid case law, more particularly proviso inserted in sub-section (8) of section 24, it appears that the learned Sessions Judge did not consider the matter by segregating the intention and separate role to be played by a Public Prosecutor while conducting the trial. If the Public Prosecutor is to conduct the trial as against the lawyer of the original complainant, on the contrary, the spirit of law would be maintained by putting the case in a fair manner without prejudicing the rights of the accused to defend the case. If the Public Prosecutor is to conduct the trial as against the lawyer of the original complainant, on the contrary, the spirit of law would be maintained by putting the case in a fair manner without prejudicing the rights of the accused to defend the case. If the Court finds that the Public Prosecutor is not properly discharging the duty to be performed by him, nothing prevents the Court from exercising its power to ensure that the proper evidence is placed before the Court and no mischief is played by the Prosecutor which may frustrate the basic principles that the real offender must be punished and the innocent persons must be acquitted. That is the proactive role expected from the Court but not the role of substituting a lawyer of the original complainant by replacing the Public Prosecutor while conducting the trial which is neither permissible as per the provisions of section 225 of the Code nor can be read under section 225 of the Code. (11) At this stage, we may refer to certain observations of this Court made at para 11 in the case of Bhikhyabhai Motibhai Chavda Vs. State of Gujarat and others in Criminal Misc. Application No.5522/09 with Criminal Appeal No.783/10 decided on 10.05.2010, relevant of which reads as under: "11. It is hardly required to be stated that in the matter of commission of offence and for ensuring that the offenders are booked, the primary responsibility is of the State and it is for the State to ensure that the offenders are booked and the victims are not made to suffer. If one has committed offence he is bound to be punished, but, if one is innocent he would be entitled to the benefit thereof. The aforesaid is one of the sovereign function of the State which can neither be abdicated nor can be diluted in any welfare State. If the State is not pursuing his matter with proper spirit and zeal, the victim may validly raise grievance and also compel the State to take appropriate action for ensuring that the offenders are booked. But, such right cannot be read at the only as per the desire or will of the victim and while pursuing such right the victim can not claim a higher pedestal than that of the State whose basic duty is to ensure that the offenders are booked. But, such right cannot be read at the only as per the desire or will of the victim and while pursuing such right the victim can not claim a higher pedestal than that of the State whose basic duty is to ensure that the offenders are booked. In normal circumstance if the State is showing any lethargy or not pursuing the matter for ensuring that the offenders are booked the victim may legitimately make grievance and may also step into litigation by ensuring that the culprits are prosecuted and the suffering of the victim are sufficiently given solace and compensation. But, it appears that such right as may be available to the victim is not by way of taking revenge against the accused or by aggravating the situation against the accused, but, is limited to the extent of ensuring the punishment to the culprit in accordance with law. It is by now recognized principles that justice to one party should not result into injustice to the other side and it will be for the Court to balance the right of both the sides and to up-hold the law." (12) On the aspects of authority of the advocate to represent the case after the death of his client, the position of law is clear as daylight. However, as the learned Sessions Judge has deferred the said aspects to be decided at the later stage, we find it proper to leave the matter at that stage without observing further. As the reference has been made under section 395(2) of the Code, reference to the said provision of the Code would be relevant, which reads as under: "(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case." (13) Section 395(2) provides for making reference to the High Court if the Court of Sessions or Metropolitan Magistrate thinks it fit to refer the matter for decision of the High Court, any question relating to law arise in the hearing of such case. (14) The questions of law referred to in sub-section 395(2) has to be read by its necessary implication, the important questions of law and not of the all the questions of law which may arise while deciding the matter and the reason being that in every matter, there will always be questions of law to be decided which may arise in facts of the case, but it is for the learned Sessions Judge to decide the same. It is only when the learned Sessions Judge finds that the questions of law are of vital importance and he is unable to decide the same after examining the provisions of the Act and the case law then only, the reference may be required. It appears that when the reference under section is to be made under section 395(2) of the Code, the conditions required to be satisfied are - The genuine questions of law has arisen in the matter pending before the Court. The Court has to record the satisfaction that it is a fit case to refer the matter to the High Court for its decision on such question. Such questions of law must have arisen in the hearing of the case before the Court. (15) It the facts of the present case are considered in light of the aforesaid, it appears that section 225 of the Code is clear in its own language. Further, as observed earlier, there is a limited right of the original complainant to assist the Public Prosecutor under the permission of the Court as per the proviso of section 24(8) of the Code. The role and the functions of the Public Prosecutor is altogether different and independent than the investigating officer. Hence, there is no genuine question of law arisen in the matter pending before the learned Sessions Judge. But it appears that the learned Sessions Judge has mixed up the role to be played by the Public Prosecutor and the Investigating Officer and has misdirected himself on the aspects of proactive role to be played by the Court for substituting the learned advocate of the original complainant in place of the Public Prosecutor. Further, no satisfaction is recorded by the learned Sessions Judge that it is a fit case for making reference. Further, no satisfaction is recorded by the learned Sessions Judge that it is a fit case for making reference. At this stage, we may refer to the decision of this Court in the case of Central Bureau of Investigation vs. N.K.Amin reported in Cr.M.A. 10311/10 decided on 07.10.2010, which was also a case arising upon the order passed by the learned Magistrate for making reference to this Court under section 395(1) of the Code on the aspects of validity of section 306 of the IPC. This Court in the said decision inter alia observed at para 52, the relevant of which reads as under: "...the attack by the co-accused on constitutionality of the provisions of the said Section could not be lightly considered as if a doubt is raised in the mind and the matter is referred to the High Court. In all fairness the learned Magistrate ought to have put strain upon himself to examine the provisions and also the case law, and more particularly the view expressed by the Apex Court on the said aspects. Had the observations made by the Apex Court been considered by the learned Magistrate, all doubts in his mind would have been cleared, but it appears to us that instead of exercising the power, which so vests to the learned Magistrate under Section 306, he has, without any proper application of mind, raised the question and referred the matter to this Court by the impugned order." (16) In the present case also the position of law is clear. Therefore, it could not be said that any genuine questions of law to be decided by the High Court had arisen in the matter. Under the circumstances, the first condition was not satisfied. Further no reasons are recorded by the learned Sessions Judge on the aspects as to whether real or genuine questions of law arise nor any satisfaction has been recorded by the learned Sessions Judge that it was a a fit case to refer the matter to the High Court for its decision on the questions of law. Therefore, we find that the conditions precedent for making reference to this Court under section 395(2) of the Code are not satisfied and the reference made is only by way of a misdirection and without consideration of the statutory provisions and the case law as referred to hereinabove. Therefore, we find that the conditions precedent for making reference to this Court under section 395(2) of the Code are not satisfied and the reference made is only by way of a misdirection and without consideration of the statutory provisions and the case law as referred to hereinabove. In view of the aforesaid, the reference deserves to be dismissed. Hence, dismissed accordingly. In view of the aforesaid, the trial before the learned Sessions Judge shall proceed in accordance with law.