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Can a victim or his lawyer be allowed to conduct prosecution in a criminal case?

The provisions of Sections 225, 301 and 302 are in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. Constructing a right to prosecute a person during trial, will defeat the purpose sought to be achieved by Article 21 of the Constitution of India. It is in larger public interest that the prosecution is conducted by an independent person like the Public Prosecutor.

The role of the Public Prosecutor is very important in criminal trial, when Public Prosecutor works under Section 24 of Code of Criminal Procedure, 1973 for conducting prosecution, appeal or other proceeding on behalf of the Government, as the case may be under Section 301 Cr. P. C. the Public Prosecutor or the A.P.P. in charge may appeal and plead without any written authority before any Court in which that case is under inquiry, trial or appeal, it further states that if in any such case any private person instructs a pleader to prosecute any person in any court, the pleader so instructed shall act under the directions of the Public Prosecutor or Asst. Public Prosecutor and may with the permission of the Court, submit written arguments after the evidence is closed in the case.

The underlying object of enacting Section 301 of Code of Criminal Procedure, 1973 appears to be that when the State undertakes a case, the rights to the complainant become subordinate to that of the State so that the counsel appearing on behalf of the complainant has no right to audience, unless permitted in that behalf by the Public Prosecutor appearing for the State. With the permission of the Court he may submit written arguments to the Court, irrespective of arguments of the Public Prosecutor or his consent in this behalf. Section 301 Cr. P. C. thus reads as under:

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.

What is mentioned above is applicable to all cases in general, i.e., cases which are triable by Sessions Court as well as in Magistrate Courts.

However, there is a more liberal provision in Section 302 of Code of Criminal Procedure, 1973 relating to cases which are pending for inquiry or trial in a Magistrate court (i.e., this provision is not applicable to Sessions Court trials):

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.
     
  2. Any person conducting the prosecution may do so personally or by a pleader.
    Thus, for a trial pending in a Magistrate Court, the victim / complainant or his lawyer can be allowed to conduct prosecution, if the Magistrate Court permits him to do so. In such a situation, if such permission is granted, the prosecution will be conducted completely by the victim or his lawyer. And, this can happen even in cases which are instituted on the basis of a charge sheet filed by police; but, the limitation is that the case should be triable by a Magistrate (and not Sessions Court) and that the Magistrate should permit it.

Section 301 of Code of Criminal Procedure, 1973 came to be interpreted in a number of cases. In [Thakur Ram & Ors. Vs. State of Bihar, AIR 1966 SC 911], the Hon'ble Supreme Court ruled that in a case which has proceeded on a police report, a private party has no locus standi. It further ruled that, barring a few exceptions, in criminal matters, the aggrieved party is the State, which is the custodian of the social interests of the community at large, and so it is necessary for the State to take all steps necessary for bringing the person who has acted against the social interests of the community, to book.

In [Kuldip Singh Vs. State of Haryana, 1980 Cri LJ 1159 (P&H)], the Hon'ble Punjab & Haryana High Court held that, the Court has no role to play as regards a person engaging her own pleader, since the pleader's role is confined to briefing the Public Prosecutor. The Court further held that it only has a say in the matter, if the pleader so engaged by the party, wishes to make a written submission.

In [Praveen Malhotra Vs. State, (1990) 41 DLT 418 (Del)], a third party sought to intervene in the matter and present oral arguments against a petition for bail filed by the accused. The Petitioners relied on the Judgment of the Hon'ble Supreme Court in Arunachalam v. P. S. R. Sadhanantham, (1979) 2 SCC 297, where the Hon'ble Supreme Court had ruled that under Article 136 of Constitution of India, it can entertain appeals against Judgments of acquittal by the Hon'ble High Court at the instance of private parties also, as Article 136 does not inhibit anyone from invoking the Court's jurisdiction.

The Court, in the present case, distinguished this case and said that the ruling made by the Hon'ble Supreme Court in the context of Article 136 of Constitution of India cannot be relied upon in the context of a third party seeking to intervene in a bail application filed by the accused under Section 439 of Code of Criminal Procedure, 1973, exercising powers under Section 482. The second decision relied upon by the Petitioners was Manne Subbarao Vs. State of A.P., (1980) 3 SCC 140, where the issue was whether a third party, who is neither the complainant nor the first informant, can appeal to the Hon'ble Supreme Court, against an order of acquittal by the High Court, if the State does not prefer an appeal.

The Court ruled that there is no black-letter law that permits the same. However, the Criminal Justice System supports the view that a wrong done to anyone is a wrong done to oneself. Justice is outraged when a guilty person is allowed to get away unpunished. It held that access to Justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as Public Interest Litigation, class action and pro bono proceedings are.

The Court, in Praveen Malhotra again distinguished this case and said that it applied only to Article 136 of Constitution of India. It further stated that both the cases cited involved situations where a third party had sought to go on appeal and that the present case was one where the matter concerned opposition to an application for bail. Therefore, it stated that the ratio of the two cited cases could not be applied. Keeping this limited view in mind the Court referred to the case of [Indu Bala Vs. Delhi Admn., 1991 Cri LJ 1774 (Del)], wherein the Hon'ble Delhi High Court took the position that there was no provision in Cr. P. C allowing a complainant or a third party to oppose the application for grant of bail or anticipatory bail.

Hence, the Court ignored two decisions of the Hon'ble Supreme Court and chose to rely on the decision given by a Single Judge of the Delhi High Court. The Court also dismissed the plea of the Petitioner to exercise inherent powers under Section 482 of Code of Criminal Procedure, 1973 to permit intervention, on the ground that Section 482 of Code of Criminal Procedure, 1973 cannot be used to circumvent the law and to go against the settled law.

It added that Section 482 of Code of Criminal Procedure, 1973 cannot be used as broadly as Article 136. It is interesting to see that the Court did not go into the question of whether intervention could be allowed under Sections 301 and 302 Cr. P. C, in this case.

In the case of [P. V. Narashimharao Vs. State, 1997 Cri LJ 3117 (Del)], the Petitioner sought to intervene in an appeal filed by the accused against the order of the trial court. The Hon'ble Delhi High Court ruled that there was no provision in Cr. P. C analogous to Order 1 Rule 10 of the Civil Procedure Code. It further stated that a reading of the section shows that a private party has no role in a proceeding instituted by the State. Hence, the application of the Petitioner to intervene was rejected.

In [All India Democratic Women's Assn. Vs. State & Ors., 1998 Cri LJ 2629 (Mad)], the Hon'ble High Court of Madras stated that Section 301 (2) Cr. P. C gives a third party only a right to assist the prosecution. The prosecution of the criminal proceedings, the Court held, is primary responsibility of the State, and if third parties are allowed to intervene, then there will be a number of associations to represent one party or the other in criminal proceedings, and this would give rise to confusion and chaos.

In this regard, it is pertinent to point out that in the case of [Shiv Kumar Vs. Hukam Chand & Anr., (1999) 7 SCC 467], the Supreme Court held that:
From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone 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 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, 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 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.

The Supreme Court observed that  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.

However, the above Judgment was in respect of a private lawyer assisting the Public Prosecutor under Section 301 (2) of the Code of Criminal Procedure, 1973, which is mostly relevant for the trials in the Sessions Court.

For a trial in a Magistrate Court, Section 302 of Code of Criminal Procedure, 1973 may additionally come into play.

For example, in the case of [J. K. International Vs. State (NCT of Delhi) & Ors, (2001) 3 SCC 462], referring to Section 302 of Code of Criminal Procedure, 1973, the Supreme Court held that when the trial is before a Magistrate's Court, the scope of any other private person intending to participate in the conduct of the prosecution is still wider. Explaining the provisions of Section 302, Code of Criminal Procedure, 1973, the Supreme Court further observed that:
The private person who is permitted to conduct prosecution in the Magistrate's Court can engage a Counsel to do the needful in the Court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against anyone in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself.

It is open to the Court to consider his request. If the Court thinks that the cause of Justice would be served better by granting such permission the Court would generally grant such permission. Of course, this wider amplitude is limited to Magistrates' Courts, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above.

All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them.

In [Dhariwal Industries Ltd. Vs. Kishore Wadhwani & Ors., (2016) 10 SCC 378], the Supreme Court approvingly referred to the above J.K. International case to the effect that a private person can be permitted to conduct the prosecution in the Magistrate's Court and can engage a Counsel to do the needful on his behalf, and that when permission is sought to conduct the prosecution by a private person, it is open to the Court to consider his request. It was observed that in that case, the Court had stated that the Court has to form an opinion that cause of Justice would be best sub-served and it is better to grant such permission, and, it would generally grant such permission.

Recently, in the case of [Amir Hamza Shaikh & Ors. Vs. State Of Maharashtra & Anr., (2019) 8 SCC 387], the Supreme Court further clarified this issue by observing that though the Magistrate is not bound to grant permission at the mere asking but the victim has a right to assist the Court in a trial before the Magistrate. The Magistrate may consider as to whether the victim is in a position to assist the Court and as to whether the trial does not involve such complexities which cannot be handled by the victim. On satisfaction of such facts, the Magistrate would be within his jurisdiction to grant permission to the victim to take over the inquiry of the pendency before the Magistrate.

The scheme envisaged in the Code of Criminal procedure, 1973 indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. Even the fact that the Court had taken cognizance of the offence is not sufficient to debar him from reaching the Court for ventilating his grievance.

Even in the Sessions Court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code of Criminal Procedure, 1973, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial.

The private person who is permitted to conduct prosecution in the Magistrate's Court can engage a Counsel to do the needful in the Court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against any one in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. It is open to the Court to consider his request.

If the Court thinks that the cause of Justice would be served better by granting such permission the Courts would generally grant such permission. Of course, this wider amplitude is limited to Magistrates Courts, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the Public Prosecutor. They are the gate keepers of criminal justice, insofar as without their initiative there cannot be the prosecution and repression of crimes. Prosecution services are, in fact, society's principal means of pursuing punishment of criminal behaviour and its interface with the adjudicative power.

In all prosecutions, the State is the prosecutor and a proceeding is always treated as proceeding between the State and the accused. The anxiety of the State to secure peace and security and a right to prosecute. The complainant has no independent right to have guilty person punished. It is felt necessary in the larger public interest to save the people from prosecution by a private party.

Once the offence is committed, it is not against the individual but is against the entire society. Thus, of the outcome of a trial, it is not the complainant, who is interested but it is the public at large, who is concerned. It has taken human civilization centuries to reach this stage when the modern State has come to acquire a monopoly to adjudicate and use force when fights between the private individuals take place. This is why Justice is represented by scales of sword.

The Society has realized that the privilege of the prosecution should be of the State alone because it is neutral interceptor as it never loses and never wins. The Court call for expertise and hence the conduct of the prosecution is entrusted to the prosecutors appointed by the State Government. This saves innocent persons from vexatious prosecution and also harassment during the trial The complainant has also been given limited right to speak during trial by way of submitting written arguments under Section 301 (2) of the Code of Criminal Procedure, 1973 and assist the Public Prosecutor through private Counsel with the permission of the Court.

The scope and relief provided under sub-section (2) of Section 302 of Code of Criminal Procedure, 1973 gives an ample opportunity and sufficient role to the private person interested in the cause to submit his case through the agency of the Public Prosecutor. Although, a limited secondary role to the victim prosecution is envisaged under Section 301 of Code of Criminal Procedure, 1973, it imbibes necessary checks and balance providing sufficient scope and opportunity for victim's participation and to check the arbitrariness of the prosecution agency.

Dinesh Singh Chauhan, Advocate

J&K High Court of Judicature, Jammu
Email: [email protected], [email protected]

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