All India Democratic Women's Association vs State and others

The petition in Crl.M.P. No. 4780/97 in Crl. Appeal No. 677/97 is filed under S. 482 of Cr.P.C. by the All India Democratic Women''s

Association, Tamil Nadu Unit, represented by its Assistant Secretary V. Vasuki to permit the petitioner Association to intervene in the application

filed by the prosecution to cancel the bail in Crl.M.P. No. 4571 of 1997 in Crl. Appeal No. 677/97.

The petitioner in Crl.M.P. No. 4781/97 in Women Lawyer''s Association at Madras represented by its Secretary K. Santhakumari and the

above petition is filed under S. 482 of Cr.P.C. to permit the petitioner-Association to intervene in the application filed by the prosecution to cancel

the bail in Crl.M.P. No. 4571 of 1997 in Crl. Appeal No. 677/97.

Both these petitions are opposed by the learned counsel for the accused viz., the respondents 2 to 5 herein.

After hearing the learned counsel for the petitioners in both petitions filed under S. 482 of Cr.P.C. and after hearing the learned counsel for the

respondents 2 to 5/accused, the point that arises for determination is as to whether the petitioners can be permitted to intervene in the application

to cancel the bail filed by the prosecution in Crl.M.P. No. 4571 of 1997 during the pendency of the appeal in Crl. Appeal No. 677 of 1997.

Point :- The State represented by the Superintendent of Police, Crime Branch, CID-I, Chennai was the Investigating Officer, and after

investigation the charge sheet was filed, and the charges were framed by the learned Principal Sessions Judge, Cuddalore in Sessions Case No. 99

of 1993 for the offences under Ss. 343, 348, 324, 330, 376, 218 and 220 read with S. 109 of I.P.C.

All the accused persons, totally 11 accused persons, were involved in Sessions Case No. 99 of 1993 on the file of the Principal Sessions Judge,

Cuddalore. Out of the total 11 accused, six accused were charged for the offence of rape of one Padmini, while she was in custody in the police

station, and they are A1 to A3, A6, A8 and A10, and they were alleged to have committed the offence of rape on the said Padmini, and out of six

accused persons charged for the offence of rape under S. 376 of I.P.C., four were convicted and they are A3, A6, A8 and A10, while A1 and

A2 were acquitted for the offence of rape on the said Padmini by the learned Principal Sessions Judge, Cuddalore in his Judgment dated 4-9-

1997. But A1 and A2 were convicted for the offence of wrongful confinement of the said Padmini even though they were acquitted for the offence

of rape on the said Padmini. Aggrieved against the Judgment of conviction and sentence A1 and A2 filed a separate appeal in Crl. Appeal No.

680/97, while so the accused A3, A6, A8 and A10 filed a separate appeal in Crl. Appeal No. 677 of 1997. During the pendency of the Crl.

Appeal No. 677/97 the accused viz., A3, A6, A8 and A10 filed an application under S. 389(1) of Cr.P.C. to suspend the sentence of 10 years

passed against them for the offence of rape and to suspend the sentence for the other offences and to release them on bail in Crl.M.P. No. 4472 of

1997, and by an order dated 11-9-1997 the sentences imposed on them were suspended by this Court and they were granted bail. Thereupon the

State represented by the Superintendent of Police, Crime Branch, CID-I, Chennai, who is the Investigating Agency, has filed an application in

Crl.M.P. No. 4571 of 1997 to cancel the bail granted to A3, A6, A8 and A10 in Crl.M.P. No. 4472 of 1997 consequent to the suspension of

sentence. During the pendency of the petition for cancellation of bail in Crl.M.P. No. 4571 of 1997, the petitioners Associations have filed these

two petitions under S. 482 of Cr.P.C. to intervene in the petition filed by the prosecution to cancel the bail in Crl.M.P. No. 4571 of 1997. The

Petitioners Associations are third parties to the Sessions Case No. 99 of 1993 and also to the consequential Criminal Appeals and the Criminal

Miscellaneous Petitions. In other words the Petitioners Associations are neither informant nor the victims nor the complainant in the Sessions Case.

These are the admitted facts in these two petitions. Bearing these admitted facts in mind we have to consider the claim of the Petitioners

Associations as to whether they can be permitted to intervene in the application filed by the prosecution to cancel the bail of A3, A6, A8 and A10

in Crl.M.P. No. 4571 of 1979.

6-1. The learned counsel Miss. R. Vaigai, appearing for the Petitioners Association in Crl.M.P. No. 4780/97 viz., All India Democratic Women''s

Association contended that this Association has been assisting the victim woman by name Padmini from the very beginning, and in a case like this

where a helpless woman was subjected to brutal assault by the policemen and the trial Court having convicted the accused for the offence of rape

in police custody, they ought not to have been shown any leniency to release them on bail and the Judgment of trial Court is a well considered one

and based on evidence, and the accused do not deserve to be let out on bail in the context of the case, and in all fairness in the interest of justice

this Court has to cancel the bail granted to them in Crl.M.P. No. 4472 of 1997. In this respect the learned counsel Miss R. Vaigai brought to my

notice para 52 of the Judgment of the trial Court and stated that the trial Court has made a reference in para 52 of its Judgment to the effect that

the trial Court relies upon the evidence of the District Secretary of the Petitioner Association and her husband''s evidence. On a perusal of the

entire paragraph 52 of the Judgment of the trial Court in Sessions case No. 99 of 1993, I could not find any reference to the Petitioner Association

viz., All India Democratic Women''s Association, Tamil Nadu Unit. Nothing is stated in para 52 of the Judgment of the trial Court that

Balakrishnan and Johnsirani referred to in the said para are the office bearers of the said Association. Even admitting that there is a reference about

the office bearers of the said Association in the Judgment of the trial Court, it does not mean that they have legal right to come forward to intervene

in the petition for cancellation of bail on the ground that there is a reference to their Association in the Judgment of the lower Court.

In this respect the learned counsel Miss R. Vaigai relied upon the decision in Pratap Vs. State of U.P. and Others, in support of her contention

that a third party like the Petitioner-Association can intervene. The Supreme Court has stated in para 15 of the said Judgment as follows :

Whether the High Court could impose a sentence of death on the appellant when there was no appeal by the State, merely on the basis of

Revision Petition filed by a private party does not give rise to any serious difficulty. Under S. 439 of the Code of Criminal Procedure (Old Code)

the High Court has got ample powers and as a notice has also been issued to the appellant to show cause why his sentence should not be

enhanced, there is no illegality in the sentence of death imposed on the appellant. The power under S. 439 of Criminal Procedure Code (Old

Code) is one which the High Court can exercise suo motu and all that a person filing a Revision Petition under that Section does is to draw the

Court''s attention to an illegal, improper or incorrect finding, sentence or order of a subordinate Court. The fact that in this case the brother of the

deceased filed a Revision Petition and the Government did not do so, does not affect the powers of the High Court under that Section.

It seems from the decision reported in Pratap Vs. State of U.P. and Others, that the High Court itself exercised the revisional power suo motu

under S. 439 of Old Cr.P.C. That decision was rendered by the Supreme Court under S. 439 of the Old Criminal Procedure Code of 1898,

corresponding to S. 401 of the new Code of Criminal Procedure of 1973. That was a case, where the brother of the deceased also filed a

Revision Petition to enhance the sentence. In those circumstances the Supreme Court said that the High Court could exercise the Revisional power

to enhance the sentence even though the brother of the deceased filed a Revision to enhance the sentence, thereby drawing the attention of the

Court to improper sentence. Such was not the case before us. Besides nowhere in the said decision of the Supreme Court reported in Pratap Vs.

State of U.P. and Others, it has been stated by the Supreme Court that a third party like the Petitioner Association can intervene in a criminal

proceeding like the bail petition or a petition to cancel the bail and put forth their contentions in support of the victim or the complainant. Therefore

the decision reported in Pratap Vs. State of U.P. and Others, will not be of any help of the Petitioner-Association in Crl.M.P. No. 4780 of 1997

to contend that they have got a right to intervene and take up the cause of the victim woman in this case.

The second decision relied on by the learned counsel Miss. R. Vaigai in support of the intervention of the Petitioner-Association is the decision

reported in Ranjit Singh v. Nand Lal (1975 CLJ 1416 and at the end of para 5), wherein it was held as follows :-

Sub-section (2) of Section 439 of Criminal Procedure Code does not state that the State Government alone can make an application for

cancellation of bail. The Court can suo motu issue notice to cancel the bail if it comes to its notice that the Sessions Judge granted bail to the

accused on an erroneous or some extraneous grounds. There is no prohibition in Section 439(2) Criminal Procedure Code that an application for

cancellation of bail cannot be made by a private person. ...... There is no bar that an application under S. 439(2) of Criminal Procedure Code for

cancellation of bail made by a private complainant cannot be entertained"".

That was a case where the case under S. 302 of I.P.C. was registered against one Nand Lal, who was the A.S.I., on the report lodged by

Ranjit Singh, who was the brother of Gulab Singh, and Nand Lal killed Gulab Singh by firing shots with his pistol, and Nand Lal obtained bail in

the Court of Sessions, and thereafter an application for cancellation of bail was made by the complainant Ranjit Singh, who is none other than the

brother of the deceased Gulab Singh. Such was not the case before us. The complainant in this case is Padmini and she has not filed any

application to cancel the bail, even though the Petitioner-Association claims that they were protecting the cause of the victim Padmini. In the

decision of Punjab and Haryana High Court reported in 1975 CLJ 1416 it is not stated that a third party Association like the Petitioner

Association can intervene in the petition filed by the prosecution for cancellation of bail or can file an application for cancellation of bail. Therefore

the second decision relied on by the learned counsel Miss R. Vaigai will not lend any credence to her contention that the Petitioner-Association in

Crl. M.P. No. 4780 of 1997 can intervene in the application filed by the prosecution to cancel the bail application in this case viz., Crl. M.P. No.

4571/97.

The third decision relied on by the learned counsel Miss R. Vaigai is the one reported in Sant Ram v. Kalicharan 1977 CLJ 486 . That was a

case where one Sant Ram was one of the victims, who were attacked by one Kalicharan and other accused, who were the respondents in that

case. The respondents/accused were arrested in that case and obtained bail in the Sessions Court, and one of the victims by name Sant Ram

challenged the bail order even though the State has not preferred any application to cancel the bail. In those circumstances the learned Judge of the

Delhi High Court came to the conclusion in para 6 of the said Judgment that the Revision filed by a private party could not be said to be totally

unmaintainable when on the facts and circumstances of the case it was necessary to intervene with the order in the interests of justice. So the facts

in the decision of the Delhi High Court are not identical with the facts in these petitions. At the risk of repetition I have to say that the Petitioner

Association is not the victim or the complainant in this case. The petitioner Association is a third party. In those circumstances the third party like

the Petitioner-Association cannot intervene in the application filed by the State to cancel the bail already granted to some of the accused in this

case and therefore the decision relied on by the learned counsel for the Petitioner-Association in Crl.M.P. No. 4780 of 1997 and reported in 1977

CLJ 486 and at para 6 will not come to their rescue to contend that the Petitioner-Association has got every right to intervene in the application

filed by the prosecution to cancel the bail already granted to some of the accused in this case.

The other association viz., Women Lawyers'' Association at Madras represented by its Secretary, who is the petitioner in Crl.M.P. No. 4781

of 1997, would say in the affidavit filed in support of this petition that they have been assisting the women in distress and their Association also was

keenly espousing the cause of the women, and their Association is interested in ensuring that the issue of the women are represented properly

before all forums, and the order of this Court dated 11-9-1997 in Crl.M.P. No. 4472 of 1997 suspending the sentence and grating bail to some of

the accused, did not state any reason for the grant of bail, and the Association is deeply concerned in this matter since the accused are all

policemen, and the offence has been committed in custody, and in such cases the bail should not be granted leniently, and so they requested

permission to intervene in this matter. For the reasons stated earlier I am of the view that the Women Lawyers'' Association at Madras cannot be

permitted to intervene in the application filed by the State to cancel the bail granted to some of the accused for the simple reason that the Women

Lawyers'' Association at Madras is neither informant nor the victim nor the complainant and it is only a third party to the proceedings.

Per contra the learned counsel for the accused Mr. B. Shanmugavelayutham brought to my notice four decisions of the Madras High Court,

which have taken the consistent view that only the informant or the victim or the complainant or their close relations like father or brother of the

victim can intervene in matters like the petition for bail or cancellation of bail or for quashing the proceedings and no other third party can claim a

right to intervene. The decisions cited by the learned counsel for the accused are as follows :

In the first decision of our Madras High Court reported in Dharmar and another v. State by the Inspector of Police 1985 LW (C) 219 Justice

Sengottuvelan, J. stated as follows :-

There is no provision in the Criminal Procedure Code to implead a third party in a prosecution case. Section 301, Cr.P.C. provides for instructing

a pleader to prosecute by any person in any case and if the pleader is so instructed, he will have to act under 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 written arguments 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 arguments. The third party like

the petitioner is only entitled to assist the prosecution and he cannot be impleaded as a party to the proceedings.

In the second decision reported in Saravanabhavanandum v. S. Murugaiyan 1986 LW (Crl) 165 : 1986 Crl 1540 the very same Judge Justice

Sengottuvelan, J. laid down as follows at page 1542 (of Cri LJ) :-

There is no provision in the Criminal Procedure Code, which enables a third party to get himself impleaded in the proceedings before the Criminal

Court. We have only Section 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 Section 301 of Cr. P.C., such assistance is to be given at the enquiry, trial or appeal in a criminal case. When a

party cannot be impleaded in criminal proceedings as held by this Court, he cannot be permitted to come in under the guise of an intervenor. But at

the same time, bearing in mind the wholesome observation of the Supreme Court, the right of a party to represent matters before the court cannot

be whittled down into a straight-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"".

Thus the decision of Justice Sengottuvelan, J. reported in 1986 LW (Crl) 165 : 1986 CLJ 1540 makes it clear that the representation in the

bail proceedings can be made before the trial starts. But here is the case where the trial was completed and the Judgment was delivered and the

appeal has been preferred by some of the accused and during the pendency of the appeal the State has prefered an application to cancel the bail.

So following the ratio laid down by Justice Sengottuvelan, J. in his later decision reported in 1986 LW (Crl) 165 : 1986 CLJ 1540 it is not open to

anybody after the trial was completed to make the representation in the bail petition. It is also relevant to note that in the said decision it is only the

brother of the deceased, who was permitted to intervene to make his representation in the bail proceedings. The third party Association has not

intervened in the decision reported in 1986 LW (Crl) 165 : 1986 CLJ 1540. Therefore the second decision of Sengottuvelan, J. and reported in

1986 LW (Crl) 165 : 1986 CLJ 1540 will strengthen the contention of the learned counsel for the accused that third party like the Petitioners

Associations cannot have any audience in respect of the bail proceedings, even though they might have championed the cause of the victim woman

and supported her cause.

The third decision that was relied on by the learned counsel for the accused is the decision of Justice Pratap Singh, J. reported in Sekar v.

Narayanan 1992 MLJ 76 wherein it was held as follows :-

The respondents herein want quashing of the entire proceedings as against them. While that is being considered, the informant viz., the petitioner

herein also should be heard. He must be given an opportunity so that he can make his submissions regarding the cognizance of the offence and

maintainability of the same.

Then one another decision which would lend support to the contention of the learned counsel for the accused, is the one reported in

Easwaramoorthy v. State by Inspector of Police 1992 LW (Crl) 233, wherein Justice Janarthanam, J. laid down the law on this subject as follows

:-

The code has given the recognition to such a sanguine principle, by indicating in various provisions, such as Sections 2(u), 24, 25, 225, 301 and

A survey of these provisions does indicate appointment of a Public Prosecutor either by the State or by the Center to be in charge of the

prosecution in respect of the cases filed before Courts and conduct prosecution therefor. ... It is also clear from Sections 24 and 301 of the Code

that a pleader privately engaged cannot plead, although he can act under the directions of the Public Prosecutor. Section 2(1) read with Section

301 of the Code leads to the inevitable conclusion that any person engaged in brief by a private person to instruct the prosecutor can only so

instruct and act under the directions of the Public Prosecutor and the prosecution shall be conducted by the Public Prosecutor himself.

It is pertinent to note that in the case reported in 1992 L W (Crl) 233 one Easwaramoorthy, who is the father of the complainant by name

Usha, took out the application to implead him as the 2nd respondent in the Criminal Original Petition filed by the accused to quash the proceedings

in a criminal case. Thus the father of the complainant himself was not given the audience to represent her daughter in the criminal proceedings by

Justice Janarthanam, J. Such being the decision of our Madras High Court it is not open to third parties like the petitioners Associations to

intervene to put forth their submissions in the application filed by the prosecution to cancel the bail already granted to some of the accused in this

case. Therefore on a careful scrutiny of the decisions referred to above it follows that there was a consistent view taken by three Judges of Madras

High Court that there is no right of audience in the criminal proceedings for third parties except for the informant or for the victim or for the

complainant or their close relations. While such being the views expressed by the learned three Judges of our High Court I am unable to subscribe

to the views of the petitioners Associations that they have a right to intervene and make their submissions with reference to the petition filed by the

State to cancel the bail granted already to some of the accused in this case.

Section 301(2) of Cr.P.C. gives the third party a right to assist the prosecution only. A very limited right seems to have been given to an

Advocate instructed by a private person and that too to assist the Public Prosecutor u/s 301(2) of Cr.P.C. The only correct interpretation of

Section 301(2) of Cr.P.C. can be that the lawyer instructed by a private person has no right of audience except to assist the Public Prosecutor and

that Advocate can certainly assist the Public Prosecutor during the course of criminal proceedings. However noble their object may be, the

petitioners Associations, who are third parties to this case, cannot be permitted to intervene and to put forth their submissions independently of the

Public Prosecutor, who represents the State in the petition to cancel the bail. The prosecution of the criminal proceedings is primary responsibility

of the State, and if third parties are permitted to intervene, then there will be number of Associations to represent one party or other in criminal

proceedings and it will give rise to confusion and chaos.

Considering the above facts and circumstances of the case I am to hold that the third parties like the Petitioners Associations cannot be

allowed to intervene in the petition filed by the State to cancel the bail already granted to some of the accused in this case, and so these two

petitions filed by the Petitioners Associations have to be dismissed, and consequently they are dismissed, and I answer this point as against the

petitioners Associations.

In the result both the petitions viz., Crl.M.P. No. 4780 and 4781 of 1997 are dismissed.

Petition dismissed.