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PETITIONER: SHIV KUMAR

       Vs.

RESPONDENT: HUKAM CHAND AND ANR.

DATE OF JUDGMENT:       30/08/1999

BENCH: S.P.Kurdukar, K.T.Thomas, N.Santosh Hegde

JUDGMENT:

THOMAS,J

     It is as well for the protection of accused persons in sessions  trials  (in India) that provision is made to  have the  case against him prosecuted only by a Public Prosecutor and  not  by  any counsel engaged by the  aggrieved  private party.  Fairness to the accused who faces prosecution is the raison detre of the legislative insistence on that score.

     In this case, appellant is aggrieved because a counsel engaged  by him was not allowed by the High Court to conduct prosecution  in spite of obtaining a consent from the Public Prosecutor  concerned.  First respondent was the accused  in the  sessions  trial wherein appellant wanted his  counsels active  role  to  be played.  Appellant and  respondent  are advocates  practicing at the same station.  The grievance of the appellant developed in the following fact situation:

     Appellant  is  the  brother of five sisters,  and  the youngest  among them, Suman, had secured creditable academic laurels.  She was given in marriage to Dr.Dinesh Kumar Gupta (the  son of the respondent).  But about 4 months after  her marriage  she  met  with  a tragic death  by  burns.   On  a complaint lodged by the appellant, FIR under Section 302 and 120-B  of the Indian Penal Code (IPC) was registered by  the local  police against the respondent.  But after  completion of the investigation a charge-sheet was laid against him for the offence under Section 304-B of the Indian Penal Code.

     Appellant,  on  his part, engaged Shri R.C.   Gugnani, advocate,  to  appear for him in the sessions  court  during trial  of  the case.  On 1.7.1996 when appellant was  to  be examined  as a witness for prosecution, Shri R.C.   Gugnani, advocate  ventured to conduct the chief examination of  that witness.   It was objected to by the counsel for the accused on  the  premise  that  a  private  counsel  cannot  conduct prosecution  in  a sessions trial.  Appellant then moved  an application  on the same day, the relevant portion of  which reads thus:

     That  the  Public Prosecutor has no objection if  the case  is conducted by Shri R.C.  Gugnani, advocate.  That as per  the prevailing practice being followed by this  Honble Court  and  as per provisions of section 301(2) Cr.P.C.   my counsel has a right to conduct the case under the directions of  the Public Prosecutor.  It is, therefore, prayed that in

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view  of  the facts stated above, necessary  permission  may please  be  given to the applicant for conducting  the  case under the directions of the Public Prosecutor.

     It  seems,  the Public Prosecutor in the  trial  court endorsed  the  said application.  The trial court passed  an order thereon, the material portion of which reads thus:  I accept  the  application  and   allow  Shri  R.C.   Gugnani, advocate   of   the  complainant  to   conduct   under   the supervision,  guidance and control of the public prosecutor, while  conducting  the same case and the  public  prosecutor shall retain with himself the control over the proceedings.

     Accused  was not prepared to have his case  prosecuted by  the  complainants counsel and hence he  approached  the High  Court  in  revision.  The impugned order of  the  High Court  was passed by a Single Judge.  The operative  portion of the said order reads thus:

     I  allow  this  revision and direct that  the  lawyer appointed  by the complainant or private person in this case shall  act  under the directions from the Public  Prosecutor and  may  with  the permission of the court  submit  written arguments  after evidence is closed in the case.  I  further direct  that  the  Public Prosecutor in charge of  the  case shall  conduct  the  prosecution.    Revision  petition   is disposed of accordingly.

     Learned  counsel  for the appellant informed  us  that trial  in  the case is over by now.  Nonetheless he  pleaded for  consideration of the issue as he feels that a  decision thereon by this Court is necessary for future guidance also. He  contended  that Section 302(2) of the Code  of  Criminal Procedure  (for short the Code) must be so construed as to enable the pleader of an aggrieved private person to conduct the  prosecution  in  as  best a manner  as  he  deems  fit. Section 301 of the Code reads thus:

     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  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  he 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.

     Section  302 of the Code has also some significance in this  context and hence that is also extracted below:  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.

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     (2)  Any  person conducting the prosecution may do  so personally or by a pleader.

     It must be noted that the latter provision is intended only  for  magistrate courts.  It enables the magistrate  to permit  any  person  to conduct the prosecution.   The  only rider  is  that magistrate cannot give such permission to  a police  officer  below the rank of Inspector.   Such  person need not necessarily be a Public Prosecutor.

     In  the  magistrates court anybody (except  a  police officer   below   the  rank  of   Inspector)   can   conduct prosecution,  if the magistrate permits him to do so.   Once the  permission is granted the person concerned can  appoint any  counsel to conduct the prosecution on his behalf in the magistrates court.

     But  the above laxity is not extended to other courts. A  reference to Section 225 of the Code is necessary in this context.   It  reads thus:  225.  Trial to be conducted  by Public  Prosecutor.-  In  every  trial  before  a  Court  of Session,  the  prosecution  shall be conducted by  a  Public Prosecutor.

     The  old  Criminal Procedure Code (1898) contained  an identical  provision  in  Section  270  thereof.   A  Public Prosecutor  means any person appointed under Section 24 and includes  any  person  acting under the  directions  of  the Public Prosecutor,(vide Section 2(u) of the Code).

     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.

     From  the scheme of the Code the legislative intention is  manifestly  clear that prosecution in a  sessions  court cannot  be  conducted  by  any one  other  than  the  Public Prosecutor.   The  legislature  reminds the State  that  the policy  must strictly conform to fairness in the trial of an accused  in  a sessions court.  A Public Prosecutor  is  not expected  to  show  a  thirst  to  reach  the  case  in  the conviction  of the accused somehow or the other irrespective of  the  true  facts  involved in the  case.   The  expected attitude   of  the  Public   Prosecutor   while   conducting prosecution  must  be  couched in fairness not only  to  the court  and to the investigating agencies but to the  accused

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as  well.   If  an  accused is entitled  to  any  legitimate benefit  during  trial  the  Public  Prosecutor  should  not scuttle/conceal  it.  On the contrary, 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 overlooked   it,   Public    Prosecutor    has   the   added responsibility  to bring it to the notice of the court if it comes  to his knowledge.  A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to  conviction  even  if  it  is not a fit  case  to  be  so convicted.   That  is  the reason why Parliament  applied  a bridle  on  him  and  subjected his  role  strictly  to  the instructions given by the Public Prosecutor.

     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 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.

     An  early  decision of a Full Bench of  the  Allahabad High  Court  in Queen-Empress v.  Durga (ILR 1894  Allahabad 84)  has  pinpointed  the  role of a  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  favorable  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.

     As  we are in complete agreement with the  observation of  a Division Bench of the High Court of Andhra Pradesh  in Medichetty  Ramakistiah  &  ors.  v.  The  State  of  Andhra Pradesh  (AIR 1959 A.P.  659) we deem it fit to extract  the said observation:  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 fair or foul.  Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender

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is  not  handed over completely to a professional  gentleman instructed by a private party.

     Another  Division  Bench of the same High Court in  re Bhupalli  Malliah  & ors.  (AIR 1959 A.P.  477) had in  fact deprecated  the practice of Public Prosecutors sitting back and  permitting  private counsel to conduct prosecution,  in the  following terms:  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.

     Equally  forceful is the observation of Bhimasankaram, J.   for the Division Bench in Medichetty Ramakistiah (cited supra)   which  is  worthy  of  quotation  here:    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.

     We,  therefore,  conclude that the High Court  in  the impugned  order  has correctly approached the issue  and  it does  not warrant any interference.  We, therefore,  dismiss this criminal appeal.