P.S Saravanabhavanandam And Another v. S. Murugaiyyan And Another

1. These two petitions are filed by the relations of the deceased to intervene in the petition for anticipatory bail in Cr. M.P 8892 of 1985 on the file of this Court.

2. The facts are briefly as follows: One Packia Rani alias Usha wife of S. Murugaiyyan, the petitioner in Cr. M.P 8892 of 1985, died on the morning of 18-10-1985 at the Kilpauk Medical College Hospital, Madras. Earlier on 17-10-1985, at about 4.15 p.m the said Packia Rani alias Usha was admitted in the hospital for extensive burn injuries, by her husband Murugaiyyan. A dying declaration also is said to have been recorded from her. The petitioner in Cr. M.P 9167 of 1985, P.R Saravanabhavanandam, the brother of the deceased, who proceeded to the hospital on 18-10-1985 afternoon, finding that his sister is dead, gave a complaint to the Sub-Inspector of Police, who was in the hospital, immediately saying that he suspected foul play on the part of Murugaiyan and that in view of the past conduct on his part, he suspected that his sister was murdered by Murugaiyan by pouring kerosene over her clothes and lighting her clothes. The petitioner in Cr. M.P No. 9167 of 1985 also pointed out that in the postmortem report No. 654/85 dt. 19-10-1985, a vertical contusion 4 cm × 1.5 cm on the scalp in the middle behind the parietal eminence was also described. The petitioner also states that the Criminal Law (Second Amendment) Act, 1983 provides for speedy and proper investigation and prosecution of cases where there is a reasonable suspicion of death caused due to harassment on account of dowry. The anticipatory bail petition of Murugaiyan will have to be considered in this context, and in order to place the proper materials before this Court in the anticipatory bail petition, the petitioner in Cr. M.P 9167 of 1985 wants to intervene in the proceedings. In Cr. M.P 16 of 1986, the father of Murugaiyan is seeking the same relief to enable him to present the proper facts before the court, so that this court could come to the conclusion in the matter of granting anticipatory bail.

3. In the common counter-affidavit filed by the first respondent, Murugaiyan, it is stated that the allegation that the death of the deceased is due to homicidal act on his part is denied. It is also contended that the petitioners have no locus standi for intervening in the proceedings in Cr. M.P 8892 of 1985, as the State is primarily responsible for bringing the offenders to book in criminal cases and anybody interested in assisting the prosecution can only assist the Public Prosecutor to submit a written argument with the leave of the Court at the enquiry, trial or appeal. There is no provision by which the petitioners can ask for permission to intervene in anticipatory bail proceedings at the very inception of the case.

4. The point for determination in both these petitions is whether the near relatives of the deceased have the right to intervene themselves in proceedings relating to bail.

5. On behalf of the petitioner in Cr. M.P 9167 of 1985 a photostat copy of the letter said to have been written by Murugaiyan to the deceased on the eve of her death to show that there had been differences of opinion between the deceased and her husband Murugaiyan is filed. On the strength of this letter and the attendant circumstances under which the deceased met with her death, it is contended that death was not accidental as alleged by Murugaiyan, but there are circumstances to show that death was due to homicidal violence. To bring out the circumstances, it is contended that the petitioner will have to be heard in the course of the proceedings for anticipatory bail in Cr. M.P 8892 of 1985.

6. This Court had occasion to consider the request on the part of a third party related to the deceased for being impleaded in the bail petition filed by the accused, in the case reported in Dyarmar S. v. State by the Inspector of Police, 1985 Mad LW (Cr) 219. After considering the relevant provisions and the decisions on the point, this court, concluded as follows—

“There is no provision in the Criminal Procedure Code to implead a third party in a prosecution case. S. 301 Cr. P.C provides for instructing a pleader to prosecute any person in any case and if the pleader is so instructed he will have to act under the directions of the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, and such pleader with the permission of the court may submit a written argument after the evidence is closed in that case. At the same time, the third party can be permitted to assist the Public Prosecutor in the matter of prosecuting the evidence and in which case S. 301 gives the third party a right to assist the prosecution and also to submit written argument. The third party like the petitioner is only entitled to assist the prosecution and he cannot be impleaded as a party to the proceedings.”

7. This decision is based upon S. 301, Cr. P.C which is as follows:

301(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 enquiry, 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.”

8. These two petitions are not for impleading the petitioners as parties to the proceedings, but only pray for permission to intervene in the matter to submit the necessary facts for this court to come to a proper conclusion.

9. Mr. P. Rajamanickkam, learned counsel appearing for Murugaiyan, contends that prosecuting a criminal offence is the primary responsibility of the State, and if third parties are permitted to intervene, it will give rise to confusion and chaos. Reliance is placed on the decision in Thakur Ram v. State of Bihar, AIR 1966 SC 911 : (1966 Cri LJ 700); where the Supreme Court has observed as follows:—

“The Criminal law is not to be used as an instrument of wreaking private vengeance, by an aggrieved party against the person who according to that party, had caused injury to it. Barring a few exceptions, in criminal matters, the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book.”

10. Even in the observations of the Supreme Court, a few exceptions are contemplated. The fact that the Supreme Court has contemplated a few exceptions is relied upon by Miss Vaigai, learned counsel for the petitioner. In support of her argument that the next of kin of the deceased have got a say in the prosecution of the offence, she relies upon the decision reported in Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : AIR 1985 SC 1285 : (1985 Cri LJ 1521), where the following observation is found:—

“In a case where the Magistrate to whom a report is forwarded under sub-sec. (2) of S. 173 decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. However, either from the provisions of the Cri. P.C or from the principles of natural justice, no obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such an opportunity to be heard at the time of consideration of the report can be spelt out, unless such person is the informant who has lodged the FIR. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate when the report is considered by the Magistrate for purposes of deciding what action he should take on the report.”

11. The Supreme Court, while making this observation, also directed that this judgment has to be circulated to all the Magistrates so that they can act accordingly.

12. Relying on the above observation, it is contended that it is always open to the interested party to make his submissions even at the stage when a police report is considered by the Magistrate. On the same reasoning, it is contended that the petitioners have got a right to represent even when anticipatory bail petition is being heard.

13. The petitioners also rely upon the decision in A.R Antulay v. R.S Nayak, (1984) 2 SCC 500 : AIR 1984 SC 718 : (1984 Cri LJ 647) where the following observation is made—

“It is a well-recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant by necessary implication the general principle gets excluded by such statutory provision. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for a larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi unknown to criminal jurisprudence save and except specific statutory exception.”

14. Relying on this observation it is contended that the petitioners are entitled to be heard by this Court, to come to a just conclusion in this matter.

15. There is no provision in the Criminal P.C which enables a third party to get himself impleaded in the proceedings before the criminal court. As already observed, we have only S. 301 Cr. P.C which enables the private parties to assist the prosecution and also submit written arguments with the leave of the court. According to S. 301 Cr. P.C, such assistance is to be given at the inquiry, trial or appeal in a criminal case. The question that arises is whether private parties can be allowed to intervene in the anticipatory bail petition with a view to represent matters before the court, when there is no provision for intervention in the Criminal P.C By ‘intervention’ it is understood that a party who is possession of facts may appear before the court as an intervener and make his submissions on the matter in issue.

16. In such cases, such a party is shown as intervener in the proceedings before the court. When a party cannot be impleaded in a criminal proceeding, as held by this court, in the decision referred to above, he cannot be permitted to come in under the guise of an intervener. But, at the same time bearing in mind the wholesome observations of the Supreme Court extracted above the right of a party to represent matters before the court cannot be whittled down into a strait jacket formula of locus standi, which is unknown to criminal jurisprudence. It is open to any party to make his representations in the bail proceedings pending before this court before the inquiry or trial starts.

17. In the result, the request of the petitioners to figure as intervenors is negatived, but at the same time, it is open to the petitioners to make representations to this Court relating to the application for anticipatory bail to further the ends of justice. Subject to the above observations, both these petitions are dismissed.

18. Petitions dismissed.