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2023 DIGILAW 328 (TS)

Gandla Purnachandra Rao v. Gumpenapalli Sulochana

2023-04-25

K.SURENDER

body2023
JUDGMENT: 1. This Criminal Revision Case is filed questioning the docket order dated 21.12.2020 in S.C.No.39/2014, which reads as follows: “A4 is present. The presence of other accused is dispensed with on petition. Complainant is absent. During the course of hearing it is noticed that this case is emanated on a protest petition filed under Section 202 Cr.P.C., challenging the final report filed by the concerned Asst. Superintendent of Police, Bhadrachalam and cognizance was taken on such protest petition and entire prosecution is conducted by a private counsel contrary to provisions of Section 15 of the SCs/STs (POA) Act and also section 225 Cr.P.C and also settled pronouncement of the Apex Court in Rekha Muraka v. State of West Bengal and another (Criminal Appeal No.1727 of 2019 (arising out of SLP (Crl.) No.7848 of 2019, dated 20.11.2019. Therefore, the Prosecution is required to be conducted by the Spl. Public Prosecutor and the private counsel can only assist the Spl.Public Prosecutor in view of Section 15 of the SCs/STs (POA) Act and also Section 225 of Cr.P.C. In view of the above legal position, this Court feels it just and expedient to direct the Spl. Public Prosecutor to appear and conduct prosecution of this case as ‘State Case’ and the counsel for the complainant is entitled to assist the Spl. Public Prosecutor, if he so desires. The Counsel for the accused has objected to conduct de novo trial but that objection cannot now be countenanced and it will be considered at appropriate state after framing of charges after hearing the Spl. Public Prosecutor and defence counsel as the case. For hearing on charges, call on 05.01.2021.” 2. The core question which arises for consideration is whether in the present circumstances, the Court can conduct de novo trial. 3. On the basis of complaint of the 1st respondent that the petitioners/accused trespassed into her premises and abused her in the name of her caste, the said complaint was investigated. During the course of investigation, it was found that no such incident as alleged by the complainant had taken place, for which reason, case was referred as ‘false’. 4. Before filing the case as false, the police had taken the opinion of the Special Public Prosecutor for SCs/STs cases, Khammam and thereafter the Deputy Inspector General of Police, Warangal has accorded permission for referring the case as ‘false’. 5. 4. Before filing the case as false, the police had taken the opinion of the Special Public Prosecutor for SCs/STs cases, Khammam and thereafter the Deputy Inspector General of Police, Warangal has accorded permission for referring the case as ‘false’. 5. Protest petition was filed by the 1st respondent and the learned Special Judge took cognizance of the offence. The witnesses, P.Ws.1 to 6 were examined in between 30.05.2019 to 25.06.2019. The witnesses were extensively cross-examined and after Section 313 Cr.P.C, the case was posted for arguments. On 10.10.2019, the arguments of both sides were heard and posted to 22.10.2019 for Judgment. It appears that there was a change in the Presiding Officer and during the course of hearing, found that trial was conducted by a private lawyer and accordingly, passed the impugned docket order dated 21.12.2020. 6. The case was initially registered on 13.11.2011 for the incident that allegedly happened on 11.10.2011. The final report was filed on 22.01.2013 and protest petition came to be filed on 21.02.2013. Thereafter, cognizance was taken on 07.06.2014. 7. Learned Sessions Judge, relied on the judgment of Hon’ble Supreme Court in the case of Rekha Muraka v. State of West Bengal, the Hon’ble Supreme Court held as follows: “12.4 In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses. As stated in, the private party’s pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim’s counsel under the proviso to, as it adequately ensures that the interests of the victim are represented. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim’s counsel.” 8. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim’s counsel.” 8. Learned counsel appearing for the petitioners would submit that a de novo trial is unwarranted when the case was at the stage of judgment. The case arose on account of private complaint, as such, the observations made in Rekha Muraka v. State of West Bengal’s case (supra) would not apply. 9. On the other hand learned Additional Public Prosecutor supported the impugned order. 10. The case is of the year 2011. Enquiry was conducted and closed as ‘false’. Thereafter, the Court had taken up examination of the witnesses on the basis of protest petition filed by the 1st respondent/complainant. It is not in dispute that the Public Prosecutor of the SCs/STs Court where the case is being tried had given the opinion that ‘there was no case made out against the accused’ which is mentioned in the final report. 11. The case was not being prosecuted by the State but aggrieved by the closure of the complaint as false, the respondent/complainant filed protest petition and examined witnesses. The learned Special Judge had taken cognizance initially and also thereafter examined witnesses. 12. The accused at no point of time during trial and examination of witnesses P.Ws.1 to 6 have protested the examination of witnesses on the ground that it was not undertaken by the Public Prosecutor. Learned counsel for the petitioners/accused in the trial Court had cross-examined all the witnesses in extensor and even during the course of Section 313 Cr.P.C, did not protest about the way in which trial was conducted. It is not the case of the accused that any prejudice is caused on account of the witnesses being examined on a protest petition filed by the private lawyer. 13. The State represented by Public Prosecutor and the Investigating Officer had found that no case was made out and filed final report. No useful purpose would be served if the Public Prosecutor is asked to conduct trial. The procedure adopted by the learned Sessions Judge is not vitiated under any of the provisions of Cr.P.C. In the facts of the present case, there is no violation of any procedure or the observations made in Rekha Murarka’s case. 14. No useful purpose would be served if the Public Prosecutor is asked to conduct trial. The procedure adopted by the learned Sessions Judge is not vitiated under any of the provisions of Cr.P.C. In the facts of the present case, there is no violation of any procedure or the observations made in Rekha Murarka’s case. 14. In view of the above observations, the petitioners/accused succeeds in the present revision and the concerned Special Court is directed to hear the arguments and dispose off the case. Accordingly, the impugned order dated 21.12.2020 in S.C.No.39 of 2014 is hereby set aside. 15. Criminal Revision Case is allowed. Consequently, miscellaneous applications, if any pending, shall stand closed.