- Bookmark
- Share
- CaseIQ
R.S Nayak v. A.R Antulay .
Factual and Procedural Background
The opinion concerns two Special Cases—No. 24 of 1982 and No. 3 of 1983—originally pending before the Special Judge, Greater Bombay (Shri R.B. Sule). A Constitution Bench of the Supreme Court, by order dated 16 February 1984 in Criminal Appeal No. 356 of 1983 and connected matters, withdrew those cases from the Special Judge and transferred them to the Bombay High Court. The Chief Justice of the High Court assigned the matters to Justice S.N. Khatri, who convened a hearing on 12 March 1984. At that hearing the accused raised preliminary objections, two of which—relating to (i) the procedural regime to be followed at trial and (ii) who should prosecute—remained unresolved. To avoid delay, miscellaneous petitions were filed in the Supreme Court seeking clarification of its earlier judgment. The present opinion supplies that clarification.
Legal Issues Presented
- Whether the High Court, trying the transferred Special Cases, must follow the procedure set out in Sections 244–247 of the Code of Criminal Procedure, 1973 (procedure for warrant cases instituted otherwise than on police report).
- Whether prosecution of the offences should be conducted by a State-appointed Public Prosecutor or by an advocate engaged by the complainant who would, by statutory deeming, be treated as a Public Prosecutor under Section 8(3) of the Criminal Law (Amendment) Act, 1952.
Arguments of the Parties
Respondent-Accused (Dr. Singhvi)
- Contended that the petitions styled as requests for “clarification” were a covert attempt to predetermine issues still pending before the trial judge.
- Made no substantive submissions on the merits of the questions once the Court indicated it proposed to clarify them.
Government of Maharashtra
- Entered appearance through counsel Shri A.K. Sen and Shri M.N. Shroff but offered no argument.
Complainant (Mr. Jethmalani)
- Sought consideration of additional prayers (labelled (c) and (d)) in the miscellaneous petition, which the Court deemed irrelevant for present purposes.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Constitution Bench Judgment dated 16 Feb 1984 in Criminal Appeal No. 356 of 1983 & connected matters | Transfer of Special Cases to Bombay High Court and directive that trial proceed from the stage at which accused were discharged. | Formed the basis for clarifying that the High Court must apply the warrant-case procedure under Sections 244–247 CrPC. |
| Criminal Appeal No. 247 of 1983 (Supreme Court, 16 Feb 1984) | Interpretation of Sections 8(1) & 8(3) of the Criminal Law (Amendment) Act, 1952—specifically, deeming a complainant’s advocate to be a Public Prosecutor. | Relied upon to hold that the complainant’s chosen advocate, not a State-appointed Public Prosecutor, will conduct the prosecution. |
Court's Reasoning and Analysis
The Court read together two directions from its earlier judgment: (a) withdrawal and transfer of the cases to the High Court and (b) an order that the trial resume from the stage existing before the discharge of the accused. Under Section 407(8) CrPC, when a High Court tries a case so transferred, it must follow the procedure that would have applied in the transferring court. Because the Special Judge would have proceeded under Chapter XIX-B (Sections 244–247 CrPC) for warrant cases instituted otherwise than on police report, the same procedure binds the High Court. The Court further linked this procedural conclusion with its interpretation of Section 8(3) of the Criminal Law (Amendment) Act, 1952 in Criminal Appeal No. 247 of 1983: where cognizance is taken under Section 8(1) and the specified procedure followed, the complainant’s advocate is deemed a Public Prosecutor. Consequently, entrusting the case to a State-appointed Public Prosecutor would contravene the statutory scheme. The Court found these conclusions “obvious and needs no further clarification,” yet formally articulated them to prevent delay.
Holding and Implications
Clarification Issued: The Bombay High Court, hearing Special Case No. 24/1982 and Special Case No. 3/1983, must (i) conduct the trial in accordance with Sections 244–247 CrPC, and (ii) recognize the complainant’s chosen advocate as the Public Prosecutor; a State-appointed Public Prosecutor shall not conduct the trial.
Implications: The ruling removes procedural uncertainty, enabling the pending trials to proceed without further preliminary dispute. It reaffirms that, under the Criminal Law (Amendment) Act, 1952, complainant-appointed counsel can function as Public Prosecutor in cognizance taken under Section 8(1). The decision is confined to the transferred cases and does not establish new precedent beyond applying the Court’s earlier interpretations.
D.A 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 along with Transferred Case No. 348 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 miscellaneous petitions were moved in this Court for clarification of the judgment so as to thwart avoidable delay in the trial of cases.
2. 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, 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 No. 3/83 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged.”
3. 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 Sections 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 other Transferred Case No. 347 of 1983 being the Criminal Revision Application No. 354 of 1983 on the file of the High Court of 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 withdrawn to this Court, the High Court while hearing criminal revision application could have under Section 407 Code of Criminal Procedure, 1973 transferred the special case from which criminal revision application arose to itself for trial before itself and in such a situation the High Court under Section 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. Section 8(1) of the Criminal Law (Amendment) Act, 1952 as interpreted by this Court in Criminal Appeal No. 247 of 1983 decided on February 16, 1984 makes this position unambiguous and abundantly clear.
4. The clarification in respect of the first point read with the judgment rendered in Criminal Appeal No. 247 of 1983 in which Section 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 Section 8(1) 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, 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 in charge of the prosecution and the advocate so appointed would be deemed to be a public prosecutor.
5. 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 clarification which the Court may 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.
6. We note that the Government of Maharashtra has entered appearance before us through Shri A.K Sen and Shri M.N Shroff but no submissions were made by them.
7. Mr Jethmalani, learned counsel for the complainant wanted this Court to consider prayers Nos. (c) and (d) in the miscellaneous petition which we consider for the disposal of the miscellaneous petitions as irrelevant and we do not propose to deal with the same in these petitions.
8. In sum the clarification is that the learned Judge in the trial of the two cases pending before him has to follow the procedure prescribed in Sections 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 in charge of the prosecution and there is no question of entrusting the trial of the two cases to a State-appointed public prosecutor.
Alert