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2016 DIGILAW 1141 (KER)

P. Achuthan v. N Sayishkumar

2016-12-19

ANIL K.NARENDRAN, K.T.SANKARAN

body2016
ORDER K.T. Sankaran, J. 1. The questions involved in this application are: (i) Whether sub-section (2) of Section 301 of the Code of Criminal Procedure can be invoked in an appeal against conviction and sentence in a Sessions Case or whether the said sub-section applies only in a case before the the trial court? (ii) Whether a person, who did not make any application under Section 301(2) of the Cr.P.C. before the trial court, is disentitled from applying for the relief under that provision before the appellate court? (iii) Whether sub-section (8) of Section 24 of the Cr.P.C. can be invoked in the facts and circumstances? 2. The petitioner is the father of Ambili who was allegedly murdered by her husband, the appellant in the Crl. Appeal (accused in the Sessions Case-first respondent in the present application). The appellant was found guilty by the Sessions Court for the offence under Section 302 of the Indian Penal Code and he was sentenced to undergo imprisonment for life and to pay a fine of Rs.2 lakhs, and in default of payment of fine, to undergo rigorous imprisonment for two years. The Sessions Court held that the fine amount, if realised, will be equally paid to the children of the deceased. Challenging the conviction and sentence, the appellant filed the Criminal Appeal. Criminal Miscellaneous Application No. 5007 of 2014 is filed by the father of the deceased, to grant permission to him "to assist the prosecutor through his counsel to defend the above appeal filed by the accused/appellant". The application is filed under Section 482 read with Section 301(2) of the Cr.P.C. 3. The learned counsel for the petitioner submitted that the application is maintainable under Section 301(2) as well as under Section 24(8) Cr.P.C. and that in the interests of justice, the application is liable to be allowed. 4. The application is opposed by the first respondent/appellant. The learned counsel for the appellant submitted that the application is not maintainable in law. He submitted that Section 301(2) of the Cr.P.C. does not apply to an appeal. He also submitted that the petitioner having not made any similar application in the trial court, he is not entitled to file an application before the appellate court. The learned counsel for the appellant submitted that the application is not maintainable in law. He submitted that Section 301(2) of the Cr.P.C. does not apply to an appeal. He also submitted that the petitioner having not made any similar application in the trial court, he is not entitled to file an application before the appellate court. Answering the submission of the learned counsel for the petitioner that sub-section (8) of Section 24 of the Cr.P.C. also would apply, the learned counsel for the first respondent (appellant) submitted that Section 24(8) would apply only if a Special Public Prosecutor is appointed in the case since the proviso to sub-section (8) would apply only to that sub-section. 5. The learned Additional Director General of Prosecution submitted that the application is maintainable under Section 301(2) of the Cr.P.C. He also submitted that Section 24(8) Cr.P.C. would also apply. It is submitted that since a Special Government Pleader for conducting cases relating to atrocities against women and children is appointed in the High Court, and also going by Section 2(u) Cr.P.C., he would be a Public Prosecutor. 6. Section 301 of the Code of Criminal Procedure reads as follows: "301. Appearance by Public Prosecutors.--(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. (2) 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." 7. In Shiv Kumar v. Hukam Chand and another (1999) 7 S.C.C. 467 , interpreting the scope and ambit of Section 301 of the Code of Criminal Procedure, the Supreme Court held thus: "12. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined to Magistrate Courts, this particular section is applicable to all the courts of criminal jurisdiction. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined to Magistrate Courts, this particular section is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from employment of the words 'any court' in Section 301. In view of the provision made in the succeeding section as for Magistrate Courts the insistence contained in Section 301(2) must be understood as applicable to all other courts without any exception. The first sub-section empowers the Public Prosecutor to plead in the court without any written authority, provided he is in charge of the case. The second sub-section, which is sought to be invoked by the appellant, imposes the curb on a counsel engaged by any private party. It limits his role to act in the court during such prosecution 'under the directions of the Public Prosecutor'. The only other liberty which he can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the court permits him to do so. * * * * * 14. 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 that 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." 8. In J.K. International v. State (Government of NCT of Delhi) and others (2001) 3 S.C.C. 462 , the Supreme Court held: "11. In J.K. International v. State (Government of NCT of Delhi) and others (2001) 3 S.C.C. 462 , the Supreme Court held: "11. In view of such a scheme as delineated above how can it be said that the aggrieved private person must keep himself outside the corridors of the court when the case involving his grievance regarding the offence alleged to have been committed by the persons arrayed as accused is tried or considered by the court................................ 12. The private person who is permitted to conduct prosecution in the Magistrate's Court can engage a counsel to do the needful in the court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against anyone in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. It is open to the court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission. Of course, this wider amplitude is limited to Magistrates' Court, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the Police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them." 9. Sub-section (1) of Section 301 would apply to a case which is under inquiry, trial or appeal. The Public Prosecutor in charge of a case may appear and plead without any written authority before Court. If in any such case as referred to in sub-section (1) of Section 301 of the Cr.P.C., any private person instructs a pleader to prosecute any person in any Court, he shall act under the directions of the Public Prosecutor. 10. The Public Prosecutor in charge of a case may appear and plead without any written authority before Court. If in any such case as referred to in sub-section (1) of Section 301 of the Cr.P.C., any private person instructs a pleader to prosecute any person in any Court, he shall act under the directions of the Public Prosecutor. 10. The expression "if in any such case" occurring in sub-section (2) of Section 301 of the Cr.P.C. shows that the case is one as is referred to sub-section (1) of Section 301 of the Cr.P.C. Sub-section (1) of Section 301 of the Cr.P.C. applies to a case which is under inquiry, trial or appeal. Therefore, there can be no doubt that Section 301 of the Cr.P.C. applies not only before the trial court but it can be invoked also in an appeal against the conviction and sentence in a Sessions Case. The present appeal being one challenging the conviction and sentence in a Sessions Case, sub-section (1) of Section 301 of the Cr.P.C. is attracted. Since the petitioner has instructed a pleader to defend the appeal before the High Court, sub-section (2) of Section 301 of the Cr.P.C. also applies. Therefore, the application filed by the petitioner, the father of the deceased, is maintainable under Section 301 of the Cr.P.C. 11. The petitioner evidently did not make any application under Section 301(2) of the Cr.P.C. before the trial court. There is nothing in sub-section (2) of Section 301 of the Cr.P.C. to indicate that the person who applies under Section 301(2) of the Cr.P.C. before the appellate court should have made a similar application before the trial court as well. The learned counsel for the first respondent/appellant submitted that the provision for submitting written arguments after the evidence is closed indicates that Section 301(2) of the Cr.P.C. does not apply to appeals. He laid emphasis on the expression "after the evidence is closed" occurring in sub-section (2) of Section 301. We do not find much significance to the expression "after the evidence is closed" with respect to the maintainability of the application in the appeal. It cannot be said that Section 301(2) of the Cr.P.C. does not apply to appeals. If it applies to appeals, the expression "after the evidence is closed" may not have any significance since evidently, appeal comes after the evidence is closed. It cannot be said that Section 301(2) of the Cr.P.C. does not apply to appeals. If it applies to appeals, the expression "after the evidence is closed" may not have any significance since evidently, appeal comes after the evidence is closed. With respect to an appeal, as provided in the last portion of Section 301(2) of the Cr.P.C., written arguments can be submitted. There is no bar for submitting such written arguments in an appeal against conviction and sentence. The non filing of any application under Section 301(2) of the Cr.P.C. by the petitioner before the trial court does not disqualify him from filing any such application at the appellate stage. 12. The petitioner filed the application under Section 482 read with Section 301(2) of the Cr.P.C. The petitioner did not invoke Section 24(8) of the Cr.P.C. Since the application made by the petitioner under Section 301(2) is liable to be allowed, we do not think it necessary to invoke Section 24(8) of the Cr.P.C. We leave open question No. (iii), since it is not necessary to consider the same in the present case. For the reasons stated above, the application is allowed.