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2012 DIGILAW 1079 (ALL)

Anil Kumar v. State of U. P.

2012-05-07

AMAR SARAN, VIJAY PRAKASH PATHAK

body2012
Vijay Prakash Pathak, J.;— This Recall Application No. 339850 of 2009 dated 14.12.2009 alongwith the Delay Condonation Application No. 339849 of 2009 has been filed by the complainant seeking recall of an order of this Court granting bail dated 10.11.2009, passed by Hon'ble S.K. Singh and Hon'ble R.A Singh, J.J. in Crl. Appeal No. 5568 of 2004, which was made to apply to the case of nine accused persons in different connected Criminal Appeals. On 6.1.2012, it was directed to be listed before the regular bench by the Bench comprising Hon'ble S.K. Singh J. and Hon'ble Pankaj Naqvi,J. as the case had earlier been nominated by the Chief Justice to be listed before a Bench presided over by Hon'ble S.K. Singh, J. on 15.3.2011. After the order releasing the case passed by the earlier bench on 6.1.2012, the Chief Justice passed an order on 19.3.2012 that the case may be listed before the appropriate Bench. As a result this case came up before a bench comprising of Hon'ble Amar Saran, J. and Hon'ble Ashok Srivastava, J. on 3.4.2012 and was directed to be put up for orders on 17.04.2012. On 17.4.2012 the counsel for the complainant cited a decision of the Apex Court in the case of Vishnu Agarwal Vs. State of UP and another, (2011) CCR 392 (SC) for the proposition that if a party is not served with notice and a case is heard, then a recall application may be maintainable and recall of the order will not be barred under Section 362 Cr.P.C. The learned counsel for the appellant Sri Mishra, Senior Advocate had requested ten days time to address the Court on his preliminary objection as to the maintainability of the present recall application. 2. Sri Mishra, learned counsel for the appellant has contended today that in the aforesaid cited case the Apex Court observed that the High Court had passed an order in a Crl. Revision without hearing the revisionist, whereas in the present case, this Court, by its order dated 10.11.2009, had allowed the bail application of the appellants in a Crl. Appeal. It is submitted that the recall application was moved against the said order on the ground that the complainant had no notice of the listing of the case as his name was not shown in the Computer cause list. Appeal. It is submitted that the recall application was moved against the said order on the ground that the complainant had no notice of the listing of the case as his name was not shown in the Computer cause list. He has further contended that the order granting bail was passed on 10.11.2009 by this Court wherein it has been stated that Sri Mishra contended that Sri Anoop Trivedi and Sri Gopal Chaturvedi, learned Senior Advocates informed him that they had no instructions and Sri Abhishek Mayank, whose name is further shown in the cause list is not traceable. He has submitted that the matter was taken up on 7.11.2009 but the counsel for the complainant did not appear, however, the appellant and the Additional Government Advocate were heard at length and a detailed order was passed on merit on 10.11.2009 by which bail was granted as above. He has further contended that under Section 301 Cr.P.C., in a Criminal matter, only the public prosecutor and assistant public prosecutor have a right to appear without any written authority before any Court and under Section 301(2) Cr.P.C., it is provided that if any private person instructs a pleader to prosecute any person in any Court, the public prosecutor and assistant public prosecutor incharge of the case shall conduct the prosecution and the pleader so instructed shall act therein under the directions of the public prosecutor and assistant public prosecutor and may with the permission of the Court, submit written arguments after the evidence is closed in the case. He has further pointed out that under Section 225 Cr.P.C. also it has been provided that in every trial before a Court of Session, prosecution shall be conducted by a public prosecutor. He further argues that even before the High Court, it is the Public Prosecutor or Government Advocate, who can appear from the side of the prosecution and the counsel for the complainant could only appear on being granted permission by the Government Advocate and they cannot appear for the complainant on their own. The learned counsel for the appellant has drawn the attention of this Court to the decision of the Apex Court in Shiv Kumar Vs. Hukum Chand reported in 1999 (7SCC) 467. The learned counsel for the appellant has drawn the attention of this Court to the decision of the Apex Court in Shiv Kumar Vs. Hukum Chand reported in 1999 (7SCC) 467. In the aforesaid decision Sections 301(2), 225 and 302 Cr.P.C. were also examined and it was observed that when an accused is facing trial, the prosecution has to be conducted by the public prosecutor and that a private counsel can only act under his direction. He has further cited Empress Vs. Durga ILR 1894 Allahabad 84 and the judgement of a Division Bench of the High Court of A.P. in Medichetty Ramakistiah & Ors v. The State of A.P., AIR 1959 A.P. 659 wherein it was held that it is a principle of public policy that the Public Prosecutor shall act with a sense of detachment, without evincing any anxiety to secure a conviction and that is why the Public Prosecutor has been given the first right to appear for the prosecution in such matters. 3. In a Single Judge decision of the Delhi High Court in Indu Bala Vs. Delhi Administration, 1990 - ILR (Del) -1-84) petitions were filed for anticipatory bail and the court was faced with the question whether to allow the complainant's advocate to argue in the proceedings of a police case. The court held that under Section 301 Cr.P.C., the complainant cannot be allowed to present his arguments in the proceedings and it was made clear that the complainant can only assist the Public Prosecutor when the proceedings are being conducted at the stage of inquiry, trial or appeal and as far as the application for grant of bail is concerned, there was no provision in the Code of Criminal Procedure that a complainant or a third party can intervene and make any submissions independently in opposing the application for interlocutory bail. The complainant party may hold a watching brief and may bring the relevant facts to the notice of the State Counsel and apart from that, the complainant party has no right to be heard particularly when the state is duly represented. It is further submitted that when several complainants engage a large number of lawyers as in the present case and some of the lawyers state that they have no instructions, could the proceeding against the accused continue for inordinately long periods of time as other lawyers have not been given notice. It is further submitted that when several complainants engage a large number of lawyers as in the present case and some of the lawyers state that they have no instructions, could the proceeding against the accused continue for inordinately long periods of time as other lawyers have not been given notice. It is further submitted that when a co-equal bench gives a decision granting bail to the appellants and thereafter releases the matter in a recall application, it would not be proper to reconsider the order of a co-equal bench on merits and to examine the correctness of the view taken by the earlier Division Bench as the subsequent Division Bench does not sit in appeal over the decision of the co-equal bench, which has granted bail. If the complainant is aggrieved by the said order of the Bench made on 10.11.2009, he could have availed his remedy by approaching the Apex Court but he has no locus-standi to move the present recall application before this Court. In the light of the case laws cited above and on a consideration of the totality of the circumstances as stated above, we hold that the recall application is not maintainable and as such the said application is rejected. The delay condonation application is accordingly also rejected. _