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PETITIONER: R.S.NAYAK

       Vs.

RESPONDENT: A.R.ANTULAY

DATE OF JUDGMENT05/04/1984

BENCH: DESAI, D.A. BENCH: DESAI, D.A. PATHAK, R.S. REDDY, O. CHINNAPPA (J) SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1984 AIR  991            1984 SCR  (3) 412  1984 SCC  (3)  86        1984 SCALE  (1)583  CITATOR INFO :  RF         1988 SC1531  (143)

ACT:      Criminal Appellate  Jurisdiction-Transfer of  a pending criminal trial from the court of Sessions to the High Court- Procedure to  be followed  is  the  same  as  prescribed  in chapter XIX   B  of the  Code of  Criminal Procedure-If  the Cognizance of  an offence is taken under section 8(1) of the Criminal Law  (Amendment) Act, 1952-State need not appoint a Public Prosecutor-The complainant’s advocate will the Public Prosecutor.

HEADNOTE:      In compliance with directions given by the Constitution Bench of  the Supreme  Court, the Bombay High Court withdrew to itself  Special Case  No. 24 of 1982 and Special Case No. 5/83 pending  in the  Court of  the Special  Judge,  Greater Bombay and  assigned the  said two cases to Mr. Justice S.N. Khatri a  sitting Judge  of the  said court.  When the cases were taken  up for hearing, two preliminary contentions were raised  as   to  whether   State  should  appoint  a  Public Prosecutor to  conduct the  trial and  what  should  be  the procedure to  be followed  and from what stage of the trial. Hence the two applications for classification. The Court; ^      HELD: 1.  The learned  Judge  has  to  hold  the  trial according to the procedure prescribed in chapter XIX B i.e., the  procedure  prescribed  in  section  244  to  247  (both inclusive) of the Code of Criminal Procedure. To be precise, the learned  Judge has  to try  the case  according  to  the procedure prescribed. for cases instituted otherwise than on police report  by Magistrate.  The trial was to proceed from the stage when the accused was discharged. [414D-E]      2. If  the cognizance  of an  offence  is  taken  under section 8(’)  of the criminal law (Amendment) Act, 1952, and the  trial  has  to  be  held  according  to  the  procedure prescribed therein, under section 8(3), the learned advocate engaged by  the complainant  to conduct the prosecution will be deemed  to be  a public  prosecutor. In such a situation,

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there  is   no  question   of  the  State  appointed  Public Prosecutor to  conduct,  the  prosecution.  It  is  for  the complainant to  decide who should be his learned advocate in charge of the Prosecution. [415B-C]

JUDGMENT:      CRIMINAL JURISDICTION: Criminal Misc. Petition No. 1740 of 1984.                       (For Directions)                              IN              (Criminal Appeal No. 356 of 1983) 413                             And          (Criminal Misc. Petition No. 2217 of 1984)                       (For Directions)                              IN              (Criminal Appeal No. 356 of 1983)      Ram Jethmalani,  Ms. Rani Jethmalani, Naresh Jethmalani and J. Wad for the Petitioner.      A.K. Sen,  M. N.  Shroff and  Dalveer Bhandari  for the Respondent.      The Order of the Court was delivered by      DESAI,  J.   Consequent  upon   the  order  made  by  a Constitution Bench of this Court on February 16, 1984 in the Judgment rendered  in Criminal  Appeal No.  356 of  1983 and Transferred Case  No. 347 of 1983 alongwith Transferred Case No. 3/48  of 1983,  Special Case  No. 24 of 1982 and Special Case No.  3/83 pending  in the  Court of  the Special Judge, Greater Bombay  (Shri R.B.  Sule) were  withdrawn and  stood transferred to  the High Court of Bombay. In compliance with the direction  given in the same judgment, the learned Chief Justice of  the High Court of Bombay assigned both the cases to Mr.  Justice S.N.  Khatri, a  sitting Judge  of the  High Court. The  learned Judge  called upon the parties to appear before him  on March  12, 1984. When the cases were taken up for hearing,  certain preliminary  objections were raised on behalf of  the accused  which we  were told  have been dealt with by the learned Judge in his order dated March 16, 1984. In  respect   of  two   issues  further   consideration  was postponed. These  issues turn upon the question of procedure to be  adopted by  the learned Judge in the trial of the two cases and who should be in charge of the prosecution. In our opinion, if  the judgment  of this  Court was read with care and precision, these two questions would have hardly arisen. However, two  misc. petitions  were moved  in this Court for clarification of  the judgment  so as  to  thwart  avoidable delay in the trial of cases.      The operative  portion of  the  judgment  which  has  a bearing on the question raised reads as under:           "Therefore,  Special  Case  No.  24  of  1982  and      Special Case  No. 3/83  pending in the Court of Special      Judge, 414      Greater  Bombay   Shri  R.B.  Sule  are  withdrawn  and      transferred to  the High Court of Bombay with a request      to the  learned Chief Justice to assign these two cases      to a sitting Judge of the High Court". In the  penultimate paragraph of the judgment while allowing the appeal this Court directed as under:           "This appeal  accordingly succeeds and is allowed.      The order  and decision  of the  learned Special  Judge      Shri R.B.  Sule dated  July 25,  1983  discharging  the      accused in Special Case No. 24 of 1982 and Special Case

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    No. 3/83  is hereby  set  aside  and  the  trial  shall      proceed further  from the  stage where  the accused was      discharged."      Reading two  directions together,  it  clearly  emerges that the  learned Judge  has to  hold trial according to the procedure prescribed  in Chapter  XIX-B i.e.  the  procedure prescribed in  Secs. 244  to 247  of the  Code  of  Criminal Procedure, 1973. To be precise, the learned Judge has to try the case  according to  the procedure  prescribed for  cases instituted otherwise  than on  police report  by Magistrate. This position  is clear  and unambiguous in view of the fact that this  Court  while  allowing  the  appeal  was  hearing amongst others  Transferred Case  No. 347  of 1983 being the Criminal Revision Application No. 354 of 1983 on the file of the High Court of the Judicature at Bombay against the order of the  learned Special Judge Shri R.B. Sule discharging the accused. If  the criminal  revision application was not with drawn to  this Court,  the High Court while hearing criminal revision application  could have  under  Sec.  407  Code  of Criminal Procedure,  1973 transferred  the Special case from which criminal  revision application  arose  to  itself  for trial and  in such a situation the High Court under Sec. 407 (8), Code  of Criminal  Procedure, 1973 would have to follow the same  procedure which  the Court  of Special Judge would have  followed   if  the   case  would   not  have  been  so transferred. It  is not  in dispute that the learned Special Judge while  holding the  trial was  required to  follow the procedure prescribed by the Code of Criminal Procedure, 1973 for trial  of warrant  cases by Magistrates and in the facts of this  case the  procedure would  be in  respect of  cases instituted otherwise than on police report. The trial was to proceed  further   from  the  stage  when  the  accused  was discharged. This  in our  opinion is  obvious and  needs  no further  clarification.   Sec.  8(1)  of  the  Criminal  Law (Amendment) Act,  1952  as  interpreted  by  this  Court  in Criminal 415 Appeal No.  247 of  1983 decided  on February 16, 1984 makes this position unambiguous and abundantly clear.      The clarification  in respect  of the  first point read with the  judgment rendered  in Criminal  Appeal No.  247 of 1983 in  which Sec.  8 (3)  of the  Criminal Law (Amendment) Act, 1952  had come  in for  interpretation, it follows as a corollary that  if the  cognizance of  an offence  is  taken under Sec.  8(1) of  the Criminal  Law (Amendment) Act, 1952 and the  trial has  to be  held according  to the  procedure prescribed therein,  under Sec.  8 (3)  the learned advocate engaged by  the complainant  to conduct the prosecution will be deemed  to be  a public  prosecutor. In such a situation, there  is   no  question   of  the  State  appointed  public prosecutor to  conduct the  prosecution. It  is,  therefore, clarified which  to some  extent may  appear tautologous  in view of  the aforementioned  judgment, that  it would be for the complainant  to decide who would be the learned advocate incharge of  the prosecution  and the  advocate so appointed would be deemed to be a public prosecutor.      Dr. Singhvi  who appeared  for  the  respondent-accused submitted that in the guise of a petition for clarification, it is  a  covert  attempt  to  forestall  or  foreclose  the decision on  the aforementioned two points which are pending before the  learned Judge  before whom  both the  cases  are pending.   There   was   no   question   of   deciding   the aforementioned two points afresh because the answers to them are implicit in the judgments referred to above. Dr. Singhvi had nothing  to say  when invited  by the  Court  about  the

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clarification which  the Court  my offer  in respect  of the aforementioned two questions. He left us in no doubt that he does not  wish to  make any  submission on  the question  of clarification  in   respect  of   the   aforementioned   two questions.      We note  that the Government of Maharashtra has entered appearance before  us through  Shri A.K.  Sen and  Shri M.N. Shroff but no submission were made by them.      Mr. Jethmalani,  learned counsel  for  the  complainant wanted this  Court to  consider prayers  Nos. (c) and (d) in the misc. petition which we consider for the disposal of the misc. petitions  as irrelevant and we do not propose to deal with the same in these petitions.      In sum  the clarification  is that the learned Judge in the trial 416 of the  two cases  pending before  him  has  to  follow  the procedure prescribed  in Secs.  244 to  247 (both inclusive) included in Chapter XIX-B of the Code of Criminal Procedure, 1973. It  is for the complainant to decide who should be his learned advocate incharge of the prosecution and there is no question of entrusting the trial of the two cases to a State appointed public prosecutor. S.R. 417