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2014 DIGILAW 217 (UTT)

State of Uttarakhand v. Shamim Alam Khan

2014-05-15

SERVESH KUMAR GUPTA

body2014
ORDER 1. Heard learned counsel for the parties and perused the Misc. Application No. 1434 of 2013 as also the objections thereupon. 2. The above-titled application has been moved by the applicant/complainant on dated 23.09.2013 in the pending Government Appeal No. 305 of 2004. The said appeal was preferred by the State, challenging the impugned judgment and order of acquittal dated 03.07.2004 rendered by Chief Judicial Magistrate, Haridwar in Criminal Case No. 2965 of 2000. 3. It has been prayed by way of the said application that the judgment of acquittal was passed for want of certain documents/papers, which were available in the office of Uttar Pradesh Bar Council, Allahabad. The learned Trial Judge tried its best to call those papers on record but unfortunately, those efforts remained unsuccessful. So, the learned court below was constrained to pass the judgment of acquittal of respondent - Shamim Alam Khan. 4. The said case was initiated by the informant Mr. O.P. Saklani, who is also an advocate in Dehradun Bar. He has moved the instant application in the capacity of informant/ complainant. 5. The question before the Court to be considered is not regarding significance of all those documents, which have been mentioned in the instant application moved by Mr. Lokendra Dobhal, Advocate on behalf of Mr. O.P. Saklani, but it is to be considered, whether Mr. O.P. Saklani or his advocate Mr. Lokendra Dobhal has any authenticity to move such an application. Thus, whether the law permits him to move such an application before the Court and asking it to act upon the same? 6. Learned counsel Mr. Lokendra Dobhal has placed reliance upon the case of Zahira Habibullah H. Sheikh vs. State of Gujarat, (2004) 4 SCC 158 : 2004 Cri. L.J. 2050. 7. The above-cited case is of macabre killing where the Hon'ble Apex Court ordered for the de novo trial. The basic theme behind passing such order was that the entire prosecution machinery was indulged in shielding the accused persons. So, probably the Hon'ble Apex Court while exercising the power vested in it under section 142 of the Constitution of India and passed such an order. 8. The arguments of learned counsel for the appellant have been refuted by the learned counsel for the respondent by placing reliance upon the following judgments: 1. Sudevanand vs. State, 2012 (3) SCC 387 : 2012 Cri. L.J. 1320. 2. 8. The arguments of learned counsel for the appellant have been refuted by the learned counsel for the respondent by placing reliance upon the following judgments: 1. Sudevanand vs. State, 2012 (3) SCC 387 : 2012 Cri. L.J. 1320. 2. Satyajit Banerjee vs. State of West Bengal, 2005 (1) SCC 115 : 2005 Cri. L.J. 648. In these two cases, Best Bakery reported in 2004 SCC 158 , has also been referred to. 9. In the above-mentioned cases, the Hon'ble Apex Court has clarified the de novo trial in the peculiar circumstances of the case. The language of Hon'ble Apex Court is being reproduced below as under: Since strong reliance has been placed on Best Bakery case (Gujarat riots case) it is necessary to record a note of caution. That was an extraordinary case in which this Court was convinced that the entire prosecution machinery was trying to shield the accused i.e. the rioters. It was also found that the entire trial was a farce. The witnesses were terrified and intimidated to keep them away from the Court. It is in the aforesaid extraordinary circumstances that the Court not only directed a de novo trial of the whole case but made further directions for appointment of the new prosecutor with due consultation of the victims. Retrial was directed to be held out of the State of Gujarat. The law laid down in Best Bakery case in the aforesaid extraordinary circumstances, cannot be applied to all cases against the established principles of criminal jurisprudence. Direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence. In Best Bakery case the first trial was found to be a farce and is described as mock trial. Therefore, the direction for retrial was in fact, for a real trial. Such extraordinary situation alone can justify the directions as made by this Court in Best Bakery Case. 10. Learned counsel for Mr. O.P. Saklani has drawn the attention of this Court towards the order dated 21.04.2005 passed by this Court whereby the application moved by him was allowed subject to the condition that he (complainant) be permitted to participate in the proceedings. The said order was passed by this Court on the application bearing No. 218 of 2005 which was moved by Mr. B.P. Nautiyal, Senior Advocate Counsel for Mr. The said order was passed by this Court on the application bearing No. 218 of 2005 which was moved by Mr. B.P. Nautiyal, Senior Advocate Counsel for Mr. O.P. Saklani, wherein the prayer was made seeking permission of this Court to participate in present proceeding as complainant. Thus, he was permitted to participate in the proceedings. 11. The language of Section 302, Cr. P.C. envisages the conduction of prosecution by any person other than the police officer below the rank of inspector viz. the Trial Court can permit the prosecution to be conducted by a police officer like constable or a head constable or a sub-inspector who are below the rank of inspector; but no person, other than the Advocate-General or Government-Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission. Meaning thereby, if the permission is granted to any person, other than the public prosecutor, then he may conduct the prosecution either personally or by a pleader, as provided under sub-section (2) of Section 302. 12. The conduction of prosecution and participation in the prosecution are two different things. Participation does not mean the conduction of the prosecution. Mr. O.P. Shaklani or his Advocate were granted permission by this Court to participate in prosecution of the appeal, but they were not permitted to conduct the appeal. This difference has further been clarified by a Three-Judges Bench of the Hon'ble Apex Court in the case of Shiv Kumar vs. Hukum Chand and Another, 1999 (2) JIC 695 wherein the scope of Sections 302 and 225 Cr. P.C. was interpreted. In that case, the Apex Court has opined as under: Prosecution in a Sessions Court cannot be conducted by any one other than the public prosecutor. 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 a reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the public prosecutor. 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. That is a reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the public prosecutor. 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. 13. As regards the scope of Section 391 Cr. P.C. is concerned, it is in the discretion of the Appellate Court if it finds appropriate in the fitness of the things, then it may pass the orders summoning for additional evidence. The question cannot be left to extend the liberty, either to the complainant/informant or his advocate to move such an application in the Court and invoke its powers under Section 391, Cr. P.C. unless permitted to conduct the trial. 14. Thus, in view of what has been discussed hereinabove, the application No. 1434 of 2013 moved by Mr. Lokendra Dobhal, Advocate on behalf of his client Mr. O.P. Saklani, is hereby rejected. It is, however, made clear that if, during the course of hearing the appeal, the Court finds fit in the interest of justice, then appropriate orders may be passed for summoning of the further evidence, if any. Petition dismissed.