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2021 DIGILAW 196 (AP)

M. Surendra Babu, Visakhapatnam v. P. P. , Hyd

2021-03-24

LALITHA KANNEGANTI

body2021
ORDER : This Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) aggrieved by the order dated 02.12.2015 passed in Crl.M.P.No.775 of 2015 in C.C.No.116 of 2015 by Special Magistrate Court at Bheemunipatnam wherein the petition filed by the complainant under Section 302 Cr.P.C. praying the Court to grant him permission to conduct the prosecution or conduct the case by his pleader Sri P.A.K.Kishore was allowed. 2. The parties shall be referred to as they are arrayed in C.C.No.116 of 2015. The petitioner before this Court is the accused. 3. The facts of the case in brief are: The complainant lodged a report alleging that on 22.01.2010 at about 7:00 A.M. the accused armed with knives and sticks trespassed into the complainant’s land situated in survey No.134/3, Madhurawada though the possession of the complainant is within their knowledge and attempted to lay hut and construct barbed fencing in and around his land. The accused carried barbed fencing and other material for the purpose of laying fencing in and around his land. They also threatened the men of the complainant with dire consequences. Basing on the said report, Bheemunipatnam Police registered crime No.27 of 2010 for the offence punishable under Section 447 of the Indian Penal Code, 1860 and after completion of investigation charge sheet was filed. Learned Magistrate took cognizance of the same and ordered to issue process against the accused. Subsequently on constitution of the Special Magistrate Court, the case was transferred to said court and it was renumbered as C.C.No.116 of 2015. When the matter was coming up for trial the complainant filed petition stating that Assistant Public Prosecutor, who is incharge of his case is a regular Assistant Public Prosecutor of IV Metropolitan Magistrate as well as another Court at Bheemunipatnam. It is also alleged in the petition that it is practically impossible for the prosecutor to devote and concentrate for conducting trial of his case to the satisfaction of the complainant. The present case is registered for the offence punishable under Section 477 I.P.C. and it involves intrinsic question of facts touching the possession in respect of land and semblance of title of the complainant in that regard and corollary substantial evidence has to be let in. 4. The present case is registered for the offence punishable under Section 477 I.P.C. and it involves intrinsic question of facts touching the possession in respect of land and semblance of title of the complainant in that regard and corollary substantial evidence has to be let in. 4. It is also stated in the petition that a glance at the charge sheet reveals that investigation is not conducted in proper perspective touching Section 447 of I.P.C. and the prosecution failed to collect any documentary evidence either from the complainant or from any government authority to substantiate title and possession of the complainant in respect of the land covered by the scene of offence, which is essential for establishing title and possession. In addition to that the prosecution has not taken any steps to cause production of the concerned documents to substantiate the title and possession of the petitioner in respect of land covered by the scene of offence, which is evident from the record that time was granted, matter underwent several adjournments and ultimately the matter was posted on 08.10.2015 for trial and examination of prosecution witnesses. The complainant alleged that there is no ray of hope for the complainant that steps in that regard would be taken by Assistant Public Prosecutor even during the course of the trial. 5. The learned Judge after hearing both sides has passed the order impugned observing that from a perusal of the charge sheet and other documents, it is evident that the investigating officer failed to gather any material in support of prosecution and failed to discharge his duty without establishing the possession and enjoyment of the disputed property, has filed charge sheet. It was also observed by the Court below that the Assistant Public Prosecutor was also directed by her higher officials to attend all three Courts. As rightly contended by learned counsel for the complainant, it appears that she cannot spare time and it is also observed that the satisfaction of the complainant need not be established as per Section 302 Cr.P.C. and Magistrate has power to permit or reject the same. As rightly contended by learned counsel for the complainant, it appears that she cannot spare time and it is also observed that the satisfaction of the complainant need not be established as per Section 302 Cr.P.C. and Magistrate has power to permit or reject the same. Further the Magistrate was satisfied that there are grounds to allow the petition and held that even if the petition is allowed and the complainant is permitted to conduct prosecution through his Advocate, no harm would be caused to the Government, Assistant Public Prosecutor or prosecution agency and also made an observation that learned counsel should not be over enthusiastic. The learned Judge while allowing the application further observed that the Court has power to control as per Section 165 of the Evidence Act and in view of the law laid down by the Hon’ble Apex Court in a decision reported in 1997 (6) SCC 162 . Assailing the same the present revision is filed. 6. Heard Sri V.V.N.Narasimham, learned counsel for the petitioner/accused, learned Additional Public Prosecutor for respondent No.1-state and Sri P.A.K Kishore, learned counsel for respondent No.2/complainant. 7. Learned counsel for the accused submits that by allowing the petition filed under Section 302 Cr.P.C. the Court below has transversed beyond the scope of the provision and ignored the settled principles of law. He submits that if the Assistant Public Prosecutor is incharge of other Courts, that itself cannot be a ground to allow the petition filed under Section 302 Cr.P.C. He further submits that when an application is filed under Section 302 Cr.P.C. stating that there is voluminous record and the same is not seized by the investigation officer from their possession is not a ground to allow the petition. It is argued by learned counsel for the accused that the Court while deciding and allowing an application filed under Section 302 Cr.P.C. gave a specific finding that the investigation was not properly conducted and no documents were filed and failed to discharge duty which is totally un-warranted, uncalled for, prejudicial to the complainant and the Court below erred in allowing the petition. 8. On the other hand, learned counsel for the complainant submits that the Court below after taking all the factors into consideration has allowed the application. He submits that as per Section 302 Cr.P.C. special counsel can be engaged. 8. On the other hand, learned counsel for the complainant submits that the Court below after taking all the factors into consideration has allowed the application. He submits that as per Section 302 Cr.P.C. special counsel can be engaged. In support of his contention he relied on a decision reported in M/s JK International vs State Govt. of Nct of Delhi and others, AIR 2001 SC 1142 wherein the Hon’ble Apex Court held as under: “The private person who is permitted to conduct prosecution in the magistrates 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 any one 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 courts would generally grant such permission. Of course, this wider amplitude is limited to Magistrates courts, 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. It is appropriate to look at Section 302 of Cr.P.C. which reads thus: “302. Permission to conduct prosecution. 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. It is appropriate to look at Section 302 of Cr.P.C. which reads thus: “302. Permission to conduct prosecution. (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer 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: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader. 10. As per the language employed under Section 302 Cr.P.C. it enables the Magistrate to permit the complainant to conduct the prosecution by engaging a counsel. The discretion is vested with the Court. If the Court is of the opinion that the cause of justice would be served by granting such permission, it is empowered to grant permission. Generally the criminal trials are conducted by the Public Prosecutor. What is the role of a Public Prosecutor in conducting criminal trials is considered by the High Courts and the Hon’ble Apex Court. 11. The Full Bench of the Allahabad High Court in Queen-Empress v. Durga, (ILR 1894 Allahabad) has pinpointed the role of the public prosecutor as follows: “It is the duty of a Public Prosecutor to conduct the case for the Crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the Crown, to see that justice is vindicated: and, in exercising his discretion as to the witnesses whom he should or should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or put into the witness-box for cross-examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favourable to the defence. In our opinion, a Public Prosecutor should not refuse to call or put into the witness-box for cross-examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favourable to the defence. If a Public Prosecutor is of opinion that a witness is a false witness or is likely to give false testimony if put into the witness-box, he is not bound, in our opinion, to call that witness or to tender him for cross-examination.” 12. In Medichetty Ramakistiah & Ors. v. The State of Andhra Pradesh, (AIR 1959 A.P.659) this Court observed as under: “A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fiar or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party.” 13. In Bhupalli Malliah & Ors., (AIR 1959 A.P. 477) this Court had deprecated the practice of Public Prosecutors sitting back and permitting private counsel to conduct prosecution, as under: “We would like to make it very clear that it is extremely undesirable and quite improper that a Public Prosecutor should be allowed to sit back, handing over the conduct of the case to a counsel, however eminent he may be, briefed by the complainant in the case. … unless, therefore, the control of the Public Prosecutor is there, the prosecution by a pleader for a private party may degenerate into a legalized means for wreaking private vengeance. … unless, therefore, the control of the Public Prosecutor is there, the prosecution by a pleader for a private party may degenerate into a legalized means for wreaking private vengeance. The prosecution instead of being a fair and dispassionate presentation of the facts of the case for the determination of the Court, would be transformed into a battle between two parties in which one was trying to get better of the other, by whatever means available. It is true that in every case there is the overall control of the court in regard to the conduct of the case by either party. But it cannot extend to the point of ensuring that in all matters one party is fair to the other.” 14. In Dhariwal Industries Ltd. Vs. Kishore Wadhwani and Ors., AIR 2016 SC 4369 , the Hon’ble Apex Court held as under: “18. We have already explained the distinction between Sections 301 and 302 Code of Criminal Procedure. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by him is required to act under the directions of public prosecutor. As far as Section 302 Code of Criminal Procedure is concerned, power is conferred on the Magistrate to grant permission to the complainant to conduct the prosecution independently. 19. We would have proceeded to deal with the relief prayed for by Mr. Tulsi but, no application was filed Under Section 302 Code of Criminal Procedure and, therefore, the prayer was restricted to be heard which is postulated Under Section 301 Code of Criminal Procedure. Mr. Singh, learned senior Counsel appearing for the Respondents would contend that an application has to be filed while seeking permission. Bestowing our anxious consideration, we are obliged to think that when a complainant wants to take the benefit as provided Under Section 302 Code of Criminal Procedure, he has to file a written application making out a case in terms of J.K. International (supra) so that the Magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.” 15. In the case on hand the Court taking into consideration several factors and exercising the discretion judicially has allowed the application filed under Section 302 Cr.P.C. This Court is not able to appreciate the contention of the petitioner/accused and as rightly observed by the Court below no prejudice would be caused to the petitioner/accused. The order impugned does not warrant interference of this Court. As a sequel, pending miscellaneous petitions, if any, shall stand closed.