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2021 DIGILAW 822 (KAR)

Rajeshwari Shetty v. State of Karnataka

2021-08-23

G.NARENDAR, M.I.ARUN

body2021
ORDER : G. Narendar, J. 1. Heard the learned Senior counsel Sri. Sandesh J. Chouta along with Sri. B.N. Jagadeesh, learned counsel for the impleading applicant/intervener in Crl.A. No. 996/2021 and learned Senior counsel Sri. A.S. Ponnanna along with Sri. B.N. Jagadeesh, learned counsel for the impleading applicant/intervener in Crl.A. No. 1003/2021 and the learned Senior counsel Sri. Hasmath Pasha along with Sri. Nasir Ali, learned counsel for the appellants. 2. The instant applications are preferred invoking the provisions of sub-section (2) of Section 301 r/w the proviso to sub-section (8) of Section 24 of Code of Criminal Procedure, 1973, (hereinafter referred to as 'the Cr.P.C.' for short), praying that the de-facto complainant be permitted to come on record as an intervenor and be impleaded as a party/respondent in the appeals preferred by the accused. The appeals are preferred being aggrieved by the judgment of conviction and order of sentence dated 08.06.2021 passed by the Court of the Principal District and Sessions Judge, Udupi. 3. That the appellants No. 1 to 3 have been convicted for the offence punishable under Sections 302, 120B, 201 read with Section 34 of IPC and sentenced to undergo imprisonment for life for the offence punishable under Section 302 read with Section 34 of IPC and further sentenced to suffer imprisonment for life for the offence punishable under Section 120B read with Section 34 of IPC and further sentenced to suffer rigorous imprisonment for a period of four years for the offence punishable under Section 201 read with Section 34 of IPC. It is ordered that all the three sentences shall run concurrently. 4. It is the case of the applicant that she is the mother of the deceased Bhaskar Shetty and mother-in-law of accused No. 1 and grand-mother of accused No. 2. That accused No. 3 is a stranger to the family. 5. It is the case of the applicant that her son deceased Bhaskar Shetty went missing on 28.07.2016 and that she set the criminal law in motion on 29.07.2016 by lodging a complaint with the respondent - Manipal Police Station, Udupi District. 6. That based on the complaint, the respondent have commenced the investigation and in the course of the investigation, they have come to the conclusion that the deceased was attacked by accused Nos. 1 and 2 and done to death and suspecting the same, subjected accused Nos. 6. That based on the complaint, the respondent have commenced the investigation and in the course of the investigation, they have come to the conclusion that the deceased was attacked by accused Nos. 1 and 2 and done to death and suspecting the same, subjected accused Nos. 1 and 2 to interrogation and based on their voluntary statements, Crime No. 199/2016 came to be registered against the accused on 07.08.2016 for the offence punishable under Sections 302, 201, 204, 120B and 34 of IPC. After filing of charge sheet and committing the case to the Sessions Court, it came to be registered as S.C. No. 2/2017 and after a full fledged trial, the Court of the Principal District and Sessions Judge, Udupi was pleased to convict them for the offence punishable under Sections 302, 120B, 201 and 34 of IPC and it was further pleased to sentence them to undergo imprisonment for life and other sentences by its judgment and order of sentence dated 08.06.2021. 7. That the de-facto complainant/applicant being the mother of the deceased is a victim as defined under Section 2(wa) of the Cr.P.C. 8. The learned Senior counsel Sri. Sandesh J. Chouta would take the Court through the Proviso to sub-Section (8) of Section 24 of the Cr.P.C., which reads as under:- "(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor: [Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.]" He would then invite the attention of the Court to sub-section (2) of Section 301 of Cr.P.C., which reads as under:- "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. 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." 9. The learned Senior counsel Sri. Sandesh J. Chouta would contend that pursuant to the amending Act No. 5 of 2009, Section 2(wa) came to be inserted into the Cr.P.C., with effect from 31.12.2009 and so also the Proviso to sub-Section (8) to Section 24 and the Proviso to Section 372, came to be inserted by the amending Act No. 5 of 2009. He would contend that the amendments came about in view of the law makers' recognition of the fact that victims of crime did not have a say in the fight against the crime and because of which crime they stood victimized and suffered losses. Elaborating further, the learned Senior counsel would contend that the recognition of this fact gave birth to the concept of victimology whereby the legislature recognized the need to vest the victims with certain rights. 10. That this concept of victimology and the right of victims, has by exposition of law by the Hon'ble Apex Court and various High Courts, the horizon has been greatly expanded. That today the victims are been vested with a right to assist the prosecution and thereby ensure and avert a mis-trial and has greatly helped in averting the acquittals of the accused on account of minor lapses in the case of the prosecution. He would contend that the law as it stands today virtually places the victim's Lawyer/Advocate on an equal footing as the Public Prosecutor, which hitherto was not the case. He would contend that the law as it stands today virtually places the victim's Lawyer/Advocate on an equal footing as the Public Prosecutor, which hitherto was not the case. He would contend that prior to the amendment, the victims were conferred only with a limited right of assisting the prosecutor and filing written submissions on grant of permission by the Court under sub-Section (2) of Section 301 of the Cr.P.C. That post amendment, the law in this regard has greatly evolved and the law as it stands today, virtually permits the Advocate of the victim to represent the case before the Court on an equal footing as the Public Prosecutor appointed under the various provisions of Section 24 of the Cr.P.C. 11. The learned Senior counsel Sri. Sandesh J. Chouta elaborating further would contend that there is a stark difference and distinction in the scope and ambit of Section 301(2) and Section 24(8) of the Cr.P.C. Elaborating further, the learned Senior counsel would contend that the rights of the victim under Section 301(2) of the Cr.P.C. was limited to the extent of assisting the prosecutor, whereby the pleader appointed by the victim was required to act only under the direction of the prosecutor and additionally a right to submit written submissions in the case. He would contend that the legislature realizing the effect of the limitations 'of assisting the prosecutor' has by its amending Act inserted the Proviso to Section 24(8) and while so amending Section 24(8) has been pleased to employ the words 'assist the prosecution'. That with the deployment of the word 'prosecution', the legislature intended to bring about a sea change in the domain of victimology or rights of victims. He would take the Court through statement of objects and reasons of the Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009) (received the assent of the President on 07.01.2009 and published in the Gazette of India on 09.01.2009). Paragraph No. 2 of the same reads as under:- 2. Amendment of section 2. He would take the Court through statement of objects and reasons of the Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009) (received the assent of the President on 07.01.2009 and published in the Gazette of India on 09.01.2009). Paragraph No. 2 of the same reads as under:- 2. Amendment of section 2. -- In section 2 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:-- '(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;'. 12. The learned Senior counsel in essence would strive to contend that the role to be played by the Advocate engaged by the victim is amplified and enlarged, post the amendment of 2009 when viewed in comparison with the position that obtained prior to amendment and as provided under Section 301(2) of the Cr.P.C. 13. The Learned Senior counsel reverting to the case on hand and the instant application would submit that in the light of various expositions of law on the concept of victimology and the rights of victims, the applicant, who undoubtedly falls within the definition of 'victim' is entitled to be heard in the matter, more particularly, in the application preferred under Section 389 of the Cr.P.C., which enables the Appellate Court, for reasons to be recorded in writing, to order the suspension of sentence appealed against and if in confinement, direct he be released on bail. He would contend that the appellant has preferred I.A. No. 1/2021 in Crl.A. No. 996/2021 invoking the provisions of Section 389 of the Cr.P.C. and has prayed for suspension of the sentence, sentencing her to undergo various punishments. That the applicant/intervener being the mother of the deceased and the victim, is required to be heard in the matter. 14. This Court after hearing pointed out the absence of any provision under the Cr.P.C. similar to one of Civil Procedure Code, enabling an interested party to come on record in an appeal. It was also pointed out that the victim was also not arrayed as a party before the Trial Court. 14. This Court after hearing pointed out the absence of any provision under the Cr.P.C. similar to one of Civil Procedure Code, enabling an interested party to come on record in an appeal. It was also pointed out that the victim was also not arrayed as a party before the Trial Court. The learned Senior counsel fairly concede that the relief sought for in the applications is not happily worded and the same may be read as an application for permission to assist the prosecution in terms of Section 24(8) of the Cr.P.C. 15. The learned Senior counsel would place reliance on the following rulings:- (i) (2000) 2 SCC 391 (R Rathinam vs. State by DSP District Crime Branch, Madurai and another)- Reliance is placed on paragraph Nos. 1, 6, 7, 8 and 11 to contend that the victim is entitled to be heard on bail and seek cancellation of bail. That this right of victim has been recognized even prior to the coming into force of the amendment. On perusal of the facts, it is seen that it is a case of hearing of cancellation of bail at the pre-conviction stage. (ii) (2001) 3 SCC 462 (J.K. International vs. State (Govt. of NCT of Delhi) and others) - Reliance is placed on the observations made by the Hon'ble Apex Court in paragraph Nos. 8, 9, 10, 14 and 16 to contend that even in a proceedings for quashment of charge sheet, the Hon'ble Apex Court has held that the de-facto complainant/victim is entitled to an opportunity of being heard before an order quashing proceedings is passed. On perusal it is seen yet again, the proceedings are of a pre-conviction stage and there has been no determination of guilt of the accused. (iii) (Kunhiraman vs. State of Kerala) - Reliance is placed on the observations in paragraph Nos. 7, 8, 9, 10, 12, 13, 16 and more particularly, paragraph Nos. 16 and 17. This is yet again a case where the Hon'ble High Court was hearing a petition under Section 438 of the Cr.P.C. and admittedly, at the pre-conviction stage. The learned Single Judge taking note of the absence of any prohibition has proceeded to hold that there is no barrier to hear the de-facto complainant/aggrieved person. 16 and 17. This is yet again a case where the Hon'ble High Court was hearing a petition under Section 438 of the Cr.P.C. and admittedly, at the pre-conviction stage. The learned Single Judge taking note of the absence of any prohibition has proceeded to hold that there is no barrier to hear the de-facto complainant/aggrieved person. But it is interesting to note that in paragraph No. 9, the Court has categorically held that the provisions of Section 301(2) cannot be invoked to seek audience in a petition under Section 438 of the Cr.P.C. as the provision relates to an inquiry, trial or appeal and hence concluded that it has no application to a proceedings under Section 438 of the Cr.P.C. (iv) 2010 (2) MWN (Cr.) 273 (Sathyavani Ponrani vs. 1. Samuel Raj, 2. The State, through the Inspector of Police, Umachikulam P.S.) - Reliance is placed to demonstrate that the victim has a right of audience in the criminal proceedings. Reliance is placed on paragraph Nos. 19, 20, 21, 24, 25, 28, 29, 30, 33, 34, 36, 37, 38, 43, 45, 52, 55, 56, 60, 70 and 71 and more particularly, emphasis is on the observations in paragraph No. 38, which accordingly to the learned Senior counsel is the correct exposition of the law relating to the right vested in the victim under Section 24(8) of the Cr.P.C. On perusal of the facts, it is seen that the case pertains to consideration of the right of a victim to be heard in an application under Section 438 of the Cr.P.C. Admittedly, it is yet again a case of pre-conviction case. In paragraph Nos. 45, 46, 47, 48, 49, 50, 51 and 52, the High Court has placed reliance on the rulings in the domain of interpretation of statutes not involving criminal jurisprudence. The rules of interpretation involving criminal statutes are governed by different parameters, which will be shortly set-out in the succeeding paragraphs. In that view of the matter, we disagree with the principles of interpretation adopted by the learned Judge as tools to interpret the provisions of statute in the domain of criminal law. (v) Crl. O.P. No. 28041/2015 (S. Venkataramanan vs. State, represented by Inspector of Police, Central Crime Branch, Chennai and another) - Reliance is placed on paragraph Nos. In that view of the matter, we disagree with the principles of interpretation adopted by the learned Judge as tools to interpret the provisions of statute in the domain of criminal law. (v) Crl. O.P. No. 28041/2015 (S. Venkataramanan vs. State, represented by Inspector of Police, Central Crime Branch, Chennai and another) - Reliance is placed on paragraph Nos. 4, 5, 6 and 9, where the Court placing reliance on the preceding ruling has held that the Court can also look into the material produced by the victim/de-facto complainant while considering the application/petition under Section 438 of Cr.P.C. The instant case also is one at the pre-conviction stage. (vi) (Suneel Kumar Singh vs. State of U.P.) - The issue involved therein is the right of the counsel, who earlier argued in the appeal opposing interim bail application thereafter put-in an appearance on behalf of the victim to oppose a subsequent application for short-term bail by the accused, who stood convicted for the offence under Section 302 of the IPC. The opposition by the victim appears to be on the ground that the short-term bail granted on the earlier occasion was mis-used by the appellant-convict. The Division Bench, after examining the provisions of Section 2(u), 2(wa), 24, 12, 301 and 302 of the Cr.P.C. and after placing reliance on the decision of the Co-ordinate Bench of the said Court in Brijesh Singh vs. State of Uttar Pradesh was pleased to hold in paragraph No. 52(b) and (c) as under:- "52. (b) If a person has already been engaged as G.A/A.G.A. etc. and subsequently, he has been discharging his duties from the said capacity, then there is no legal impediment in his way to appear on behalf of the complainant in an appeal which has been filed by the accused-appellant against his conviction under Section 374 Cr.P.C. or to oppose in the bail application filed under Section 389 Cr.P.C. but only with the permission of the Court otherwise he shall only assists the State Government. (c) If G.A./A.G.A. etc. (c) If G.A./A.G.A. etc. who has been appointed as per under Section 24(1) of Cr.P.C. by the State Government, filed any objections/conduct of the case filed on behalf of the State in an appeal filed by the accused-persons against his conviction or in a bail application under Section 389 Cr.P.C., subsequently, disengaged from the said capacity, then in that circumstances, he cannot appear on behalf of the complainant." A reading of the above would leave no doubt in the mind of this Court that the primary question that was being adjudicated is whether a government advocate discharging functions is entitled to also represent the complainant and appear on his behalf and oppose the application under Section 389 of the Cr.P.C. Though the case is post-conviction stage, it is pertinent to note that there is no consideration of the provisions of Section 372 of the Cr.P.C. Much emphasis is placed on the observations in paragraph No. 51, more particularly, paragraph Nos. 14 and 15 of the extracted portion. (vii) (1984) 2 SCC 500 (A.R. Antulay vs. Ramdas Sriniwas Nayak and another) - Reliance is placed on this ruling to buttress the contention that the counsel, who represented the complainant is deemed to be a public prosecutor. There can be no doubt that in a proceedings before a Magistrate, the Magistrate in exercise of powers under Section 302 read with Section 303 of the Cr.P.C., is entitled to permit the prosecution to be conducted by any person other than the prosecutor. There can be no dispute with the proposition as the said procedure is applicable only to proceedings before a Magistrate only. This fact has also been amplified in (2001) 5 SCC 407 (Manohar Lal vs. Vinesh Anand and others). (viii) (Ram Phal vs. State and others) - In paragraph No. 3, the Court has formulated the two questions for consideration by the Full Bench on an order of reference. The questions formulated for consideration by the Full Bench leave not doubt in the mind of the Court with regard to the applicability of the said ruling. The said ruling is inapplicable to the facts of the case. The questions formulated for consideration by the Full Bench leave not doubt in the mind of the Court with regard to the applicability of the said ruling. The said ruling is inapplicable to the facts of the case. (ix) (2019) 2 SCC 752 (Mallikarjun Kodagali (dead) Represented through Legal Representatives vs. State of Karnataka and others) - The said ruling revolves around that right of a victim to prefer an appeal in terms of Section 372 of the Cr.P.C. Paragraph No. 9 of the said ruling details the issue determined by the Hon'ble Apex Court. A reading of the ruling reveals that the same has no bearing on the issue at hand. A useful reference could be made to the observations in paragraph No. 96. (x) (Khumukcham Nikita Devi and another vs. The State of Manipur and another) - The said ruling has been rendered on a conjunctive reading of Sections 24(8) and 301(2) of the Cr.P.C. (xi) (2020) 2 SCC 474 (Rekha Murarka vs. State of West Bengal and another) - Reliance is placed on paragraph No. 11, more particularly, paragraph No. 11.5. 16. Per contra, the learned Senior counsel appearing on behalf of the appellant/accused has endeavored to resist the claim of the applicant. He would take the Court through Section 24(1) of the Cr.P.C. to contend that an appeal is a distinct proceeding and that the defence counsel is only intended to have a secondary role to that of the public prosecutor. He would contend that originally the amendment bill use the words 'co-ordinate with the prosecution'. That the law makers, after a reflection, deemed it wiser to substitute the word 'co-ordinate' with the word 'assist'. Elaborating, he would contend that this change by the legislature is suffice to demonstrate that what is assigned to the victim under the amendment is only a supportive role and does not empower the victim to conduct a parallel prosecution by oneself. That this is the most plausible view in view of the primacy accorded to Public Prosecutor under Sections 225 and 301(2) of the Cr.P.C. and any other interpretation resulting in a free-hand would go against the scheme envisaged under the statute. In support he would placed reliance on paragraph No. 11.1 of Rekha Murarka case supra. 17. That this is the most plausible view in view of the primacy accorded to Public Prosecutor under Sections 225 and 301(2) of the Cr.P.C. and any other interpretation resulting in a free-hand would go against the scheme envisaged under the statute. In support he would placed reliance on paragraph No. 11.1 of Rekha Murarka case supra. 17. He would nextly contend that legislative intent is manifest in clear terms and that prosecution before a Sessions Court can only be conducted by the Public Prosecutor as it is the intention of the legislature that fairness of trial is of prime importance. 18. That a Public Prosecutor is not expected to show a thirst to ensure the case concludes with a conviction. That the Courts have repeatedly held that the expected attitude of a 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. That if an accused is legitimately entitled to any benefits during trial, it is the duty of the Public Prosecutor not to scuttle or conceal it. That, 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 has overlooked it. 19. That if a private counsel and more importantly, a counsel engaged by a victim is allowed to conduct the prosecution, it would turn adversarial and the counsel would attempt to secure a conviction by hook or by crook and he would contend that it is for that reason that the Parliament in its wisdom has applied a bridle and reduced the role of the victim's counsel to imparting instructions or assisting the public prosecutor/prosecutor. In support of the above contention, he would place reliance on the ruling of the Hon'ble Apex Court rendered in the case of Shiv Kumar vs. Hukam Chand reported in (1997) 7 SCC 467. 20. Nextly, the learned Senior counsel would place reliance on the observations of the Hon'ble Apex Court in paragraph No. 13 of the ruling rendered in the case of Sundeep Kumar Bafna vs. State of Maharashtra reported in (2014) 16 SCC 623 . 20. Nextly, the learned Senior counsel would place reliance on the observations of the Hon'ble Apex Court in paragraph No. 13 of the ruling rendered in the case of Sundeep Kumar Bafna vs. State of Maharashtra reported in (2014) 16 SCC 623 . The learned Senior counsel would contend that in the light of the observations, wherein a right to be heard would occur to the victim only if the Appellate Court were to infer anything adversely against the prosecution and that in the matter of bail, it is purely between the Court and the convict and the hands of the Division Bench cannot be tied down. 21. Nextly, the learned Senior counsel has placed reliance on ruling reported in AIR 1966 SC 911 (Thakur Ram and others vs. State of Bihar) (paragraph No. 9) which is rendered in terms of the erstwhile provisions of Section 435. He would contend that provisions of the criminal law cannot be permitted to be invoked by a private party to wreck vengeance and that barring a few instance, the party that is treated as aggrieved is the State, which is the custodian of social interest of the community at large. 22. The learned Senior counsel would place reliance on the observations made in paragraph Nos. 9 and 10 of the ruling reported in 2013 2 KCCR 994 (Shankar vs. State of Karnataka and others), whereby this Court has been pleased to hold that the insertion of the proviso to sub-Section (8) of Section 24 of the Cr.P.C. does not in any manner detract from the object, intent and scheme of the Court and he would reiterate that the permissible role of the victim is only a supportive role or to assist the Prosecutor. 23. Having adverted to the contentions, we are of the opinion that the definition of the following words, namely, 'assist' and 'prosecution' as defined in the Lexicon 5th Edition need be relied upon, in view of the fact that the said words are not defined under the Code. The words are defined to mean as under: "Assist : To aid; succour; help; lend encouragement to. The words are defined to mean as under: "Assist : To aid; succour; help; lend encouragement to. Prosecution: Prosecution means a criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime." That apart, it is necessary to extract certain provisions for the sake of easy reference and convenience, namely, Section 24, Section 301, Section 372 and Section 389. Section 24, Section 301, Section 372 and Section 389 read as under: "24. Public Prosecutors.--(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area. (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. (4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section 94). (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section 94). (6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4). [Explanation.--For the purposes of this sub-section,-- (a)"regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post; (b)"Prosecuting Officer" means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.] (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years. (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor: [Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.] (9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.]" "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." "372. No appeal to lie unless otherwise provided.-- Proviso-1: No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force: Proviso-2: [Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.]" "389. Suspension of sentence pending the appeal; release of appellant on bail.--(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond: [Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.] Section 24 is placed in Chapter II and deals with Constitution of Regular Courts and Offices that is the offices of the Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor. Section 301 is placed in Chapter XXIV, which deals with general provisions as to enquiries and trials. Section 372 and 389 are placed in Chapter XXIX and deals with the appeals arising out of the judgments of the trial Courts. 24. The instant application prima facie calls for an interpretation in the background of the above provisions. 25. As contended by the learned Senior counsels on behalf of the applicant, there is no denying the fact that victimology as a facet of Criminal law came to be recognized by the law makers and as a consequence thereof the amendment Act of 2008 (Act 5 of 2009) came to be introduced. By Section 3 of the Amendment Act, Proviso to Section 24 and the Proviso to Section 372 came to be inserted and whereby and as rightly contended by the learned Senior Counsel, certain rights have been vested in the victims and who is defined under Section 2(wa). It is these insertions coupled with the sub-Section (2) of Section 301 that is made the foundation for the application seeking impleadment as a necessary party to the proceedings, i.e., in the appeals preferred by the accused, who have been convicted and have been sentenced to undergo imprisonment for life and also suffer such other punishments as imposed under the judgment of conviction and order of sentencing dated 08.06.2021. 26. It is the case of the applicant, who is none other than the de-facto complainant and mother of the deceased that the appeal being a continuation of the prosecution, the applicant is entitled to be heard in the appeal, including on the application preferred under Section 389 of the Cr.P.C. praying to suspend the sentence and enlarge the appellants on bail. It is vehemently contended by the learned Senior counsels on behalf of the applicant that in the light of insertion of the Proviso to Section 24 of the Cr.P.C., the applicants are entitled to be heard and the Advocate engaged by the victim is deemed to be a Public Prosecutor. It is the case of the applicants that in view of provisions of Section 24(8) of the Cr.P.C., the applicants are required to be heard before any orders are passed on the application preferred by the appellants under Section 389 of the Cr.P.C. 27. It is the case of the applicants that in view of provisions of Section 24(8) of the Cr.P.C., the applicants are required to be heard before any orders are passed on the application preferred by the appellants under Section 389 of the Cr.P.C. 27. As noted in the foregoing paragraphs, this Court has been taken through various rulings including ruling rendered by the Division Bench of the Allahabad High Court. The rulings rendered by the Allahabad High Court has no doubt permitted the victim be heard on the short term bail application preferred by the convict. It is also relevant to note that having heard the victim it was pleased to allow the application of the accused. 28. The point that arises for consideration is, whether the appeal by an accused, who has been convicted by a judgment and sentenced can be construed as a continuation of the "prosecution" of the accused? 29. To determine this issue, it is necessary to appreciate the word "prosecution" and "prosecutor". The word "prosecution" has been defined as a criminal action or proceeding before a Court of law to determine the guilt or innocence of a person charged to trial. The distinction between the words "to prosecute" and "prosecution" can be gainfully stated to mean "to set the law in motion" and as a successful conclusion of the proceedings by determining the guilt or innocence of the person charged with a crime". In effect, the process of "prosecution" or the proceedings would conclude with the proclamation of guilt or innocence of the person charged with a crime. This conclusion can also be inferred by the very arrangement of the provisions under the Code. 30. As could be seen Section 24 is placed in Chapter II which deals with the Constitution of the criminal courts and its offices, whereas the right to appeal and the right of the convict to seek suspension of sentence are placed in Chapter XXIX. If it was the intendment of the law makers that the application of a convict to have himself released on bail was to be treated as an application by any other person the same could have been provided under Chapter XXXIII. On the contrary the right of a convict to seek such suspension of sentence has been placed in Chapter XXIX as a separate provision and the provision has an interesting aspect. On the contrary the right of a convict to seek such suspension of sentence has been placed in Chapter XXIX as a separate provision and the provision has an interesting aspect. The first proviso to Section 389(1) came to be inserted by Act 25 of 2005. It places certain fetters on the Appellate Court, whereby in respect of appeals where the convict has been sentenced to death or sentenced to life or imprisonment for not less than 10 years then such application can be considered only after providing an opportunity to the public prosecutor to show cause against the application in writing. Thus, the provision is a standalone provision. 31. Before we further embark upon interpreting the provisions it would be advantageous to dwell from the principles of interpretation in matters concerning statutes in the domain of criminal jurisprudence. In this regard, we desire to place reliance upon certain rulings of the Hon'ble Apex Court to act as a guiding light in our endeavor to settle the law. 32. One of the earliest reported judgments of the Hon'ble Apex Court is in the case of M.V. Joshi v. M.U. Shimpi and another reported in AIR 1961 SC 1494 wherein the Hon'ble Apex Court was pleased to observe in paragraphs 11, 12 and 15 as under: "11. Learned Counsel for the appellant contends that the rule being a part of a penal statute, it should be construed in favour of the accused. When it is said that all penal statutes are to be construed strictly it only means that the court must see that the thing charged is an offence within the plain meaning of the words used and must not strain the words. To put it in other words, the rule of strict construction requires that the language of a statute should be so construed that no case shall be held to fall within it which does not come within the reasonable interpretation of the statute. It has also been held that in construing a penal statute it is a cardinal principle that in case of doubt, the construction favourable to the subject should be preferred. It has also been held that in construing a penal statute it is a cardinal principle that in case of doubt, the construction favourable to the subject should be preferred. But these rules do not in any way affect the fundamental principles of interpretation, namely, that the primary test is the language employed in the Act and when the words are clear and plain the court is bound to accept the expressed intention of the legislature. 12. The latest view on the relevant rule of construction is found in Maxwell on Interpretation of Statutes, 10th Edn., at p. 262, which reads, "... it is now recognized that the paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning and to promote its object". Adverting to Acts against adulteration, the learned author quotes Day, J., in Newby v. Sims [(1894) 63 LJMC 229] as follows: "I cannot concur in the contention that because these Acts (against adulteration) impose penalties, therefore, their construction should, necessarily, be strict. I think that neither greater nor less strictness should be applied to those than to other statutes." So judged, we have no doubt that the butter prepared out of curd falls within the plain meaning of the words in the said rule. xxx 15. The conclusion we have arrived at is not only supported by the plain words of the rule, but also carries out the clear intention of the Legislature. The Act was passed to make provisions for the prevention of adulteration of food. Butter is a favourite edible fat and is consumed in different ways by innumerable persons in this country. As we have already pointed out, butter is prepared in the rural areas throughout this country by the indigenous process of churning soured milk, whereas only in a few cities butter is prepared directly from milk. The interpretation suggested by learned counsel for the appellant, if accepted, would make the rule a dead-letter, for all practical purposes, and the object of the Legislature would be defeated. In our view, the intention of the Legislature has been clearly expressed in the rule." 33. The interpretation suggested by learned counsel for the appellant, if accepted, would make the rule a dead-letter, for all practical purposes, and the object of the Legislature would be defeated. In our view, the intention of the Legislature has been clearly expressed in the rule." 33. Nextly, we would place reliance on the ruling of Full Bench of the Hon'ble Apex Court reported in (1976) 1 SCC 560 (Dilip Kumar Sharma and others vs. State of Madhya Pradesh) and more particularly on the observations in paragraph Nos. 11, 22, 23 and 24. In paragraph 23 the Full Bench has reiterated the rule of interpretation as settled in MV Joshi's case (supra). 34. Thirdly, we place reliance on the observations of the Hon'ble Apex Court in the ruling reported in (2003) 11 SCC 405 (Assistant Commissioner, Assessment - II, Bangalore and others vs. Velliappa Textiles Ltd., and others) in paragraphs 26, 27 and 33. 35. Lastly the observations of the Apex Court in paragraphs 7 to 11 in the case of Rekha Murarka vs. State of West Bengal and another reported in (2020) 2 SCC 474 . 36. From a reading of the above, it is apparent that in matters involving interpretation of criminal statute the rule of interpretation to be followed is the rule of strict or literal interpretation. The Courts have categorically held where on a plain reading of the provision, the clear and compelling nature of the language used in the provision gives a particular meaning or where there is no ambiguity in the provision, liberal interpretation of the same is impermissible. Further, as held by the Full Bench If two constructions are possible upon the language of the statute, the Court must choose the one which is consistent with good sense and fairness, and eschew the other which makes its operation unduly oppressive, unjust or unreasonable, or which would lead to strange, inconsistent results or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute. 37. In the background of the above dictum we now proceed to appreciate the provisions and we commence by delving into the statement of objects and reasons of Act 5 of 2009. 37. In the background of the above dictum we now proceed to appreciate the provisions and we commence by delving into the statement of objects and reasons of Act 5 of 2009. The third sentence in paragraph 2 reads as under: "They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system." (Emphasis supplied) Thus, what can be gathered from the above statement of objects and reasons are that the law makers intended to give or confer upon victims "certain rights". It makes it obvious that the law makers were clear that they intended to give or confer specific rights and it was not their intent to tweak or bring about a complete transformation in the criminal justice dispensation system. This our opinion, is fortified by the Amendments proposed by way of insertions and the Proviso to sub section 8 of Section 24 came to be inserted. It speaks of permitting the victim to engage an advocate of his or her choice to assist the prosecution. It is now relevant to look into the main provision i.e., Section 24. Section 24(8) pertains to appointment of the Special Public Prosecutor. It is needless to state that a special public prosecutor can be appointed either for a case or for a class of cases only and he stands apart from a public prosecutor of the High Court or those appointed under sub Section (6). Thus, enabling the victim to seek leave of the Court to assist even in the event a Special Public Prosecutor is appointed. We are required to observe the distinction in view of sub Section (1) of Section 24 which speaks of "any prosecution, appeal or other proceeding" on behalf of the State or Central Government. Thus, for the provisions of Section 24 of Cr.P.C. prosecution does not include appeal. This aspect has not been considered in the judgments of Allahabad High Court relied upon by the victim. Thus, Section 24 which is placed in Chapter II relating to constitution of criminal Court or offices distinctly refers to prosecution or appeal or other proceeding. Sub Section (2) of Section 301 is placed in Chapter XXIV which provides for general provisions as to enquiries and trials. Thus, Section 24 which is placed in Chapter II relating to constitution of criminal Court or offices distinctly refers to prosecution or appeal or other proceeding. Sub Section (2) of Section 301 is placed in Chapter XXIV which provides for general provisions as to enquiries and trials. Sub Section (2) can be read in two parts, (1) the pleader who is so instructed by the private party can act under the directions of the PP or APP (2) may with the permission of the pleader so engaged, may with the permission of the court submit written arguments after the evidence is closed in the case, thereby implying the stage of arguments. Thus the role permitted is a severely limited one. The use of the words "shall act" would demonstrate the mandatory nature of the provision implying thereby no right is vested in the pleader so engaged to act independently. Secondly it permits the submission of written submissions and that too with the leave of the Court and only after a particular stage i.e., closure of evidence. If that be the mandatory nature of the provision then it cannot be gainfully argued that the law permits the pleader so engaged to act independently or make independent submissions or oral submissions to the Court. 38. The words assist the prosecution occurring in proviso to Section 24(8) have to be construed in such a manner that the principles of liberal interpretation or purposive construction cannot be adopted as such an approach is likely to jeopardize the solemn and constitutionally guaranteed rights of the accused and it does not require much to turn a "prosecution" into a "persecution". The law makers have been categorical with the rights that they intended to confer upon a victim. The very use of the word "assist" the prosecution would clearly demonstrate that the law makers did not intend to confer any independent role to the advocate or pleader representing the victim. That apart the sanctity of Chapter XXIV has also been considered by the constitutional bench in the case of Hardeep Singh vs. State of Punjab and others reported in (2014) 3 SCC 92 wherein the constitutional bench has gone into and considered the aspects of trial, enquiry, etc., Hence we are unable to accept the case of the applicants. 39. One more provision which fortifies our conclusion is Section 372 itself which is placed in Chapter XXIX. 39. One more provision which fortifies our conclusion is Section 372 itself which is placed in Chapter XXIX. The proviso to Section 372 came to be inserted by Act 5 of 2009. Under the proviso, a right to appeal has been conferred on the victim. Even the said right is not conferred absolutely, but is a restricted one. The proviso permits or enables the victim to prefer an appeal in certain circumstances i.e., one in the event of accused being acquitted or in the event of accused being convicted for a lesser offence or imposing inadequate compensation. Inadequacy of sentence has not been provided as a ground enabling the victim to prefer an appeal. Thus, is this limited right under the proviso to Section 372 and the words "assist the prosecution" occurring in the proviso to Section 24(8) are juxtaposed with the words "certain rights" used in paragraph 2 of the statement of objects and reasons of the amending act 5 of 2009, it becomes clear that the intent of the law makers was only to confer a limited right on the victim. 40. Thus, if the statement of objects and reasons and the amendments by way of insertion to Section 24(8) and Section 372 are read conjunctively, it is crystal clear and there is no ambiguity to state that the construction can be placed. It is pertinent and relevant to note that the long list of rulings relied upon by the parties do not reveal the consideration of the insertion of the proviso to Section 372 and its impact. In that view the rulings relied upon by the appellant will not be of any assistance to the applicant. 41. Thus, on a plain reading the only conclusion we can draw is that the victims have been conferred with specific rights only i.e., either to assist the prosecution before the trial Court and to prefer an appeal only in specific grounds before the appellate Court. It is relevant to note that proviso to Section 372 and proviso to Section 24(8) have been introduced under Amending Act 5 of 2009. If it was the intention of the legislature to confer a wider or enlarged right on the victims the law makers would certainly have stated so. It is relevant to note that proviso to Section 372 and proviso to Section 24(8) have been introduced under Amending Act 5 of 2009. If it was the intention of the legislature to confer a wider or enlarged right on the victims the law makers would certainly have stated so. The law makers having consciously decided to insert the provisos to Section 24(8) and Section 372, it cannot be gainfully argued that the intendment of the legislature was otherwise, or that a wider construction ought to be given to the said amendments so as to bring the appeals preferred against judgment of conviction and the accompanying application under Section 389 within their ambit. 42. The legislature having enacted a specific provision to deal with the subject of suspension of sentence and having mandated that in certain circumstances the public prosecutor ought to be given an opportunity to show cause in writing, would have as well conferred a similar right on the victim as supposively enacted under Section 24(8). Section 24 recognises a distinction between a prosecution and an appeal or other proceeding. It also recognizes the distinction between different class of prosecutors and for differently appointed prosecutors. In respect of appeals by an aggrieved victim the circumstances under which certain appeals can be lodged is specified. If that being the case it would be futile to contend that the victim, in view of the words "assist the prosecution", is also entitled to intervene and claim to be heard in appeals not preferred by the victim, much less oppose the application under Section 389 preferred in an appeal by the convict. 43. The word "prosecution" as defined clearly indicates the stage upto and culminating with a proclamation of the guilt or innocence of the person charged with the crime. If that be the definition and if the guilt of a person has been proclaimed and such convict prefers an appeal it can by no stretch of imagination can be construed as a continuation of the "prosecution". With the proclamation of guilt there is a conclusion and a transformation in the status of the party sets in and the guilty is transposed from the status of an accused to a status of a convict and hence the contention that the appeal by a convict is a continuation of the prosecution is unacceptable. 44. With the proclamation of guilt there is a conclusion and a transformation in the status of the party sets in and the guilty is transposed from the status of an accused to a status of a convict and hence the contention that the appeal by a convict is a continuation of the prosecution is unacceptable. 44. We deem it necessary to state so in view of the caution sounded by the Apex Court in Rekha Murarka's case supra, wherein the Apex Court has gone to the extent of cautioning the courts from attempting to alter the inherent balance and undoubtedly the court has drawn the scheme to ensure fairness in the trial of an accused and in the criminal justice dispensation system. The mischief and damage that can be caused if the interpretation as placed by the learned Senior counsels appearing on behalf of the applicants is accepted the mischief and damage that it can cause to the justice dispensation system is immeasurable. 45. The arguments that the pleader or advocate of the victim has to be equated with that of a public prosecutor, if accepted can cause tremors in the justice dispensation system and become a spoke in the wheel of the justice delivery system. It is imperative to quote the constitutional bench in Hardeep Singh's case in paragraph No. 42, which reads as under:- "It is a settled principle of law that an interpretation which leads to the conclusion that a word used by the legislature is redundant, should be avoided as the presumption is that the legislature has deliberately and consciously used the words for carrying out the purpose of the Act. The legal maxim a verbis legis non est recedendum which means, "from the words of law, there must be no departure" has to be kept in mind." It is also relevant to note the observations in paragraphs 43 and 45. "43. The court cannot proceed with an assumption that the legislature enacting the statute has committed a mistake and where the language of the statute is plain and unambiguous, the court cannot go behind the language of the statute so as to add or subtract a word playing the role of a political reformer or of a wise counsel to the legislature. The court has to proceed on the footing that the legislature intended what it has said and even if there is some defect in the phraseology, etc., it is for others than the court to remedy that defect. The statute requires to be interpreted without doing any violence to the language used therein. The court cannot rewrite, recast or reframe the legislation for the reason that it has no power to legislate. xxx 45. This Court in Rohitash Kumar v. Om Prakash Sharma [ (2013) 11 SCC 451 : AIR 2013 SC 30 ], after placing reliance on various earlier judgments of this Court held : (SCC pp. 460-61, paras 27-29) "27. The court has to keep in mind the fact that, while interpreting the provisions of a statute, it can neither add, nor subtract even a single word. ... A section is to be interpreted by reading all of its parts together, and it is not permissible to omit any part thereof. The court cannot proceed with the assumption that the legislature, while enacting the statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the court to add and amend, or by construction, make up for the deficiencies, which have been left in the Act. ... 28. The statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. The courts have to administer the law as they find it, and it is not permissible for the court to twist the clear language of the enactment in order to avoid any real or imaginary hardship which such literal interpretation may cause. ... 29. ... under the garb of interpreting the provision, the court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation." (emphasis in original) 46. ... 29. ... under the garb of interpreting the provision, the court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation." (emphasis in original) 46. In the light of the above observations coupled with the observations in Rekha Murarka's case we have no hesitation in holding that the code of Criminal Procedure Chapter XXIX does not confer any right on the victim to seek impleadment in an appeal preferred by the convict. Section 389 of the Code of Criminal Procedure placed in Chapter XXIX does not confer any right of audience on victim in and during the consideration of the application for suspension of sentence in an appeal preferred by the convict. We hold that the right to assist the prosecution under 24(8) is not available to the victim in an appeal by convict under Chapter XXIX. In view of the above, the applications are rejected.