Shankar v. State Of Karnataka And Others

Anand Byrareddy, J.:— These petitions are heard and disposed of together having regard to the common issue involved.

2. The facts briefly stated are, the petitioner is common in these petitions. He has lodged a complaint against Respondents 2 and 3 for an offence punishable under Section 504 read with Section 34 of the Indian Penal Code, 1860 (Hereinafter referred to as ‘IPC’ for brevity) and for an offence punishable under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Hereinafter referred to as ‘SC.ST Act’ for brevity) and a case has been registered by the Shahapur Police who have submitted a First Information Report to the Jurisdictional Court and a case is registered in Crime No. 43/2011. The accused had voluntarily surrendered before the Court and had sought for bail.

3. The Court of Sessions Judge has granted bail imposing certain terms and conditions and a charge-sheet had been submitted for the offences punishable under the aforesaid sections and summons had been issued to the accused. It is alleged that the respondents again threatened the petitioner and sought to influence him with regard to the pending case and therefore, violated the bail conditions, imposed by the Sessions Court and hence, he was constrained to make an application under Section 439(2) of the Code of Criminal Procedure, 1973 (Hereinafter referred to as ‘Cr. P.C’ for brevity). The petitioner is also said to have made an application under Section 24(8) of the Cr. P.C seeking permission to engage Counsel to represent him in the prosecution of the main case, registered as Special Case No. 110/2011. The Court below has allowed the application, in part. In that, the Court below has held that the Counsel appointed by the complainant could assist the Public Prosecutor to the extent of submitting written arguments after the evidence of the prosecution is closed. It is this which is sought to be questioned in the present petitions. The second of these petitions is also filed under similar circumstances. The petitioner is primarily aggrieved by the impugned order whereby the role of the Counsel engaged by him is limited to the extent of filing written arguments after the evidence of the prosecution is closed and that the Counsel has not been given a free hand in conducting the trial which the petitioner seeks.

4. The learned Counsel for the petitioner would submit that the Court below has failed to take into account the scope of Section 24(8) of the Criminal Procedure Code which has now been amended by the insertion of a proviso, as per Act 5/2009 with effect from 31.12.2009 The learned Counsel would seek to draw attention to the Statement of Objects and Reasons, to the said Amendment Act and the very object of the amendment is lost, if a narrow interpretation is given to the scope of the “assistance” that may be provided by the Counsel engaged by the victim. The Court below having thought it fit to hold that the engagement of Counsel of the choice of the complainant is circumscribed by the limitation as to the prosecution of any crime being by the State and that the prosecution shall be conducted only by the Public Prosecutor and the participation of a Counsel engaged by the complainant could not overstep the role assigned to the Public Prosecutor and that the Counsel so engaged can only assist the Public Prosecutor and that too, only to the extent of filing written arguments after the evidence of the prosecution is closed. The learned Counsel would submit that the Court below, going by the tenor of Section 225 Cr. P.C has failed to take into account the scope of the Section read with Section 301 and Section 302 of the Code of Criminal Procedure whereby it is sought to be canvassed that it is not impermissible for the Counsel engaged by the complainant to have a greater role in the conduct of the cases. In this regard, reliance is sought to be placed on a decision of the Madurai Bench of the Madras High Court in the case of Sathyavani Ponrani v. Samuel Raj) No. 5474 of 2010 wherein the Court has expressed its opinion as follows:

“22. Therefore a reading of the above said judgment would show that even in the absence of proviso under Section 24(8) considering the nature of offence, the Hon'ble Apex Court was pleased to issue directions fixing the duty upon the police and the Court to provide necessary legal assistance to the victim concerned. Hence on a consideration of the above said principle of law and on a reading of the proviso under Section 24(8), this Court is of the opinion that an advocate engaged by a victim will have to be permitted to take adequate part in a criminal proceedings thereby performing his role as an advocate representing the victim.

24. Therefore an advocate so engaged has to perform three different roles. He has to render assistance to the victim who engaged him to assist the prosecution, secondly to assist the prosecution by assisting the Public Prosecutor who conducts the prosecution and to assist the Court being the officer of the Court. Hence an advocate so engaged by the victim or a victim has to perform the above said three roles which are complimentary to each other.

26. Proviso of Section 24(8) Cr. P.C speaks about the assistance to prosecution. Therefore it implies that the role of the Prosecutor is also to be shared by the victim's Counsel by way of assisting the prosecution even if it is to a limited extent.

Comparison between Section 301 and proviso under Section 24(8) Cr. P.C:

28. The Provision under Section 24(8) and Section 301 of the Code of Criminal Procedure are rather complimentary to each other rather than conflicting. Proviso to Section 24(8) of the Criminal Procedure Code is in other words an expansion of Section 301 of the Code of Criminal Procedure. Both proviso under Section-24(8) and Section 301 Cr. P.C will have to read together. Engaging of an advocate should only mean to have an effective assistance. That is a reason why the word ‘advocate’ has been incorporated under Section 24. The definition of a ‘pleader’ is wider which has to be read in the context of Section 301 Cr. P.C and would mean an active participation in the prosecution through a Counsel. Therefore in order to appreciate the same this Court will have to look into the object and reasons as well as a simple interpretation of the provisions. The legislature has taken into consideration of Section 301 Cr. P.C while introducing the proviso to Section 24(8).

29. Hence on a reading of Section 301 together with proviso under Section 24(8) Cr. P.C this Court is of the opinion that they are only complimentary with each other by providing more access to an aggrieved party to assist the prosecution.’

and further, has held as follows:

“33. Role of the prosecution is, to prove the charges. There is a difference between a Public Prosecutor and a Prosecutor. Any lawyer can be a prosecutor, inasmuch as the proviso to Section 24(8) which speaks about rights of a victim by way of assistance by engaging a lawyer the same cannot be curtailed as long as it is not contrary to the case of the prosecution.

34. A lawyer engaged to assist the prosecution under Section 24 is not under the control of the Public Prosecutor hut his role is to assist the prosecution. The discretion of the Court is a judicial discretion while permitting the victim to engage a lawyer to assist the prosecution. The very purpose of engaging a lawyer would amount to assisting the victim.

35. Section 301 Cr. P.C speaks about the power of the Public Prosecutor to conduct the prosecution. A conjoint reading of Section 301 and 24(8) would make it clear that it is the Public Prosecutor who conducts the case hut it does not mean that a lawyer engaged by a victim shall not be allowed to supplement the conducting of the case by the Prosecutor. A lawyer has to render his assistance in three different ways. He has to render assistance to the victim, to the prosecution and as an officer of the Court.

36. It is the sole prerogative of the public prosecutor to ‘pick, choose and examine’ a prosecution witness. However if the public prosecutor fails in the above mentioned duty either accidentally or designly in the opinion of the Court, then in such a circumstance it can permit a victim's lawyer even to examine a witness. Such a power can also be exercised by the Court for the purpose of conducting a free and fair trial and in the interest of justice.

37. Therefore this Court is of the opinion that a combination of Section 301 and proviso under Section 24(8) would make it clear that a lawyer can be engaged to argue and in an appropriate case with the permission of the Court to examine the witness.

38. Further a reading of the above said provisions would show that Section 301 speaks about the instructing a pleader whereas Section 24(8) proviso speaks about engaging a lawyer.

Therefore under Section 301 a party can instruct whereas under Section 24(8) proviso a victim can engage a lawyer and conduct the case along with the Public Prosecutor.

39. Hence considering the same, this Court is of the opinion that the proviso under Section 24(8) will have to he given its full and actual meaning, considering the legislative intent for its introduction.”

5. While on the other hand the learned Government Pleader would oppose the petition and would submit that from a reading of the relevant provisions, it cannot be said that the conduct of the case can be taken out of the hands of the prosecution at any point of time. It is the prosecution or the prosecutor alone who is competent to conduct the case. The assistance that may be provided by a Counsel engaged by the complainant can only be restricted to assistance, which in the discretion of the prosecution, may be availed. The permission to be granted by the Court is mandatory. Such permission granted does not, however, whittle down the role of the prosecutor but only enables a Counsel engaged by the complainant or the victim, to assist the prosecutor and it is always the discretion of the Court to direct or to permit the extent of assistance in arriving at the truth of the matter and in bringing an accused to book on the charges alleged, in a fair manner and therefore, the Court below having limited the permission sought for by the petitioner to the extent as provided in the impugned order, cannot be said to be bad in law and that notwithstanding the amendment to Section 24(8), the principle that the State alone is competent to prosecute the accused is not taken away and hence, he would submit that the petitions be rejected.

6. Given the above rival contentions and the provisions of law that are material, the relevant provisions are extracted hereunder for ready reference.

“2(u) “Public Prosecutor” means any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor;

24(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 subsection.

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.

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.’

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 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.

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

7. The point for consideration that arises in the present petitions has come up for consideration before a three Judge Bench of the Apex Court in the case of Shiv Kumar v. Hukam Chand reported in (1999) 7 SCC 467. The appellant in that case was aggrieved because the Counsel engaged by him was not allowed by the High Court to conduct the prosecution in spite of obtaining a consent from the Public Prosecutor concerned. The appellant wanted his Counsel to be permitted an active role and the Court had permitted the participation of the Counsel engaged by him to conduct the prosecution, however, under the supervision, guidance and control of the Public Prosecutor and that the Public Prosecutor would retain with himself the control over the proceedings. This was questioned by the accused before the High Court and the High Court in turn, directed that the role of the Counsel engaged to act under the directions of the Public Prosecutor and with the permission of the Court to submit written arguments after the evidence was closed in the case and further directed that the Public Prosecutor shall conduct the prosecution. Even though the trial was completed, in that case by the time the matter was heard by the Apex Court, the question raised before the Apex Court was however, considered at length in order to settle the legal position. The Apex Court, with reference to Section 302, has opined that the same is intended to apply only to the Magistrate Courts whereby 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 an Inspector. Such person need not necessarily be a Public Prosecutor and has further expressed that, in the Magistrate's Court, anybody except a police officer below the rank of Inspector can conduct the 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 Magistrate's Court. But, the above laxity is not extended to other Courts. Further, with reference to Section 301 read with Section 225, the Court has pointed out that Section 301 is applicable to all Courts of criminal jurisdiction. It was further pointed out that sub-section (1) of Section 301 empowers the Public Prosecutor to plead in the Court without any written authority, provided he is in charge of the case. Sub-section (2) imposes a 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 bedone only if the Court permits him to do so. The Court has then expressed that the scheme of the Code indicates the legislative intention that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The intention is to ensure fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thrust 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 as well. If the accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle or 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, the 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 a free hand to conduct the 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 the 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 that 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.

8. The Apex Court has then extracted the following observations in the following decisions namely:

A Full Bench decision of the Allahabad High Court in the case of Queen-Empress v. Durga, (ILR (1894-96) 16 All 84):

“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 favourable 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.”

Medichetty Ramakistiah v. State of A.P, (AIR 1959 AP 659):

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

Bhupalli Malliah, Re, (AIR 1959 AP 477):

“We would like to make it very clear that it is extremely desirable 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.”

Medichetty Ramakisiiah v. State of A.P (supra,):

“Unless, therefore, the control of the Public Prosecutor is there, the prosecution by a pleader for a private party may degenerate into a legalised 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.”

9. This authoritative judgment has settled the legal position. The fact that there has been an amendment to Section 24 of the Cr. P.C inserting the proviso to sub-section (8) of Section 24, does not detract from the object and intent of the scheme of the Code. As may be noted, sub-section (8) provides for the appointment of a Special Public Prosecutor either by the Central Government or the State Government and incidentally provides that the Court may permit the victim to engage an Advocate of his choice to assist the prosecution.

10. Therefore, the Counsel engaged by the victim can only assist the prosecution to the extent as spelt out hereinabove and it certainly does not enlarge the scope of the role that can be played by such an advocate engaged by the victim. In that view of the matter, the impugned orders cannot be faulted and accordingly, the petitions stand dismissed.