Basanta Kumar Paikaray vs Bharat Kumar Mangaraj and Others

S.C. Mohapatra, J.—Informant is the Petitioner in this Criminal Revision.

On 28-10-1984 at about 10.15 a. m. opposite party No. 3 lodged an information at Banpur Police Station which was registered as P. S. Case No. 108 of 1984. In the First Information Report he alleged that Petitioner and nine others committed offences under Sections 323,337, 341 and 426, Indian Penal Code read with Section 34, Indian Penal Code. On receipt of the First Information Report in Court G. R. Case No. 212 of 1984 was registered in which charge-sheet has been filed against the Petitioner and three others.

Near about the same time, Petitioner lodged an F. I. R. in the Police-Station registered as P. S. Case No. 107 of 1984. On receipt of the said F.I.R. G. R. Case No. 213 of 1984 has .been registered in Court. Charge-sheet was submitted against opposite parties under Sections 341/323/337/426/50.6/34, Indian Penal Code .

An Assistant Public Prosecutor has been appointed by the State Government for the court of the Judicial Magistrate, First Class. Banpur who is to contract all cases registered as G. R. Cases in the Court. On 12-2-191 he examined two witnesses in-charge in G. R. Case No. 212 of 1984. When the witnesses were to be examined in G. R. Case No. 213 of 1984; Petitioner filed an application to permit the prosecution to be conducted by the Advocate engaged by him alleging that G. R. Case No. 212 of 1984 and G. R. Case No. 213 of 1984 are counter cases to each other. In one case, the informant and principal witnesses are the accused in the other case, the official witnesses being common in both cases, In such circumstances the facts are such that acceptance of prosecution case on one would make the prosecution case in the other false, Petitioner had the apprehension the communication made by him as the informant witness to the Assistant Public Prosecute may be utilised far his prosecution in the other case.

Learned Magistrate did not allow the petition in view of the prevision in Section 301 (2), Criminal Procedure Code where a Lawyer engaged by a private person is to act only on the guidance and instruction of the Assistant Public Prosecutor.

Mr. P. K. Dhal, the learned Counsel far the Petitioner submitted that the learned Magistrate has not been able to appreciate the decision of the Andhra Pradesh High Court reported in G. Ramakrishna Reddy and Ors. v. State 1981 (1) A.W. R. 132. In the said decision it has been observed:

A Public Prosecutor is not expected to conduct the prosecution in every sessions trial as machine or a subordinate officer obeying to conduct the prosecution only on being satisfied that the case is worthy of prosecution though it is not for him to be the final judge of the guilt or otherwise of the accused persons. It is not expected of a Public Prosecutor to conduct the prosecution in a case where he does not believe the prosecution to be true. It would be proper for him to withdraw from one prosecution with the consent of the Court or to request the Government to appoint another Public Prosecutor who might be satisfied with the truth of the prosecution case. When two counter cases are to be tried by the same Sessions Court and if the facts of the case are such that, if one case is true, the other must be false, it would not be fair or proper for the same Public Prosecutor to conduct both the cases as while conducting the cases he cannot reasonably be satisfied with the truth of both the prosecutions. He must choose to conduct the prosecution in the case with the truth of which he is reasonably satisfied and seek the consent of the Court for his withdrawal from the prosecution in the other case; if it becomes necessary that the prosecution in the other case also should be proceeded with he should make necessary arrangement for the conduct of the prosecution and should not himself conduct the case with the truth of which he himself is not satisfied.

Mr. Dhal relied upon Section 25, Criminal Procedure Code in support of his contention that the same Public Prosecutor is not to conduct both the cases which are counter to each other. In Section 25, it has been provided that the District Magistrate may appoint any other person to be the Assistant Public Prosecutor where no Assistant Public Prosecutor is available for the purpose of any particular case. Mr. Dhal submitted that this provision if read with Sections 301 (2) and 302. Criminal Procedure Code would lead to the irresistible conclusion that the Court can permit any person to conduct the prosecution. To appreciate the contention of Mr. Dhal, the relevant portion of those section are extracted below:

Assistant Public ProsecutOrs. (1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates, (1A) and (2) xxx xxx xxx (3) Where no Assistant Public Prosecutor is available for the purpose of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case:

Provided that police officer shall not be so appointed- (a) if he has taken and part in the investigation into the offence with respect to which the accused is being prosecuted for Xx xx xx xx 301. Appearance by Public ProsecutOrs. (1) The Public Prosecutor or Assistant Public Prosecutor in charge of arise 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.

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.

All the three provisions read together make it clear so far as it relates to Assistant Public Prosecutors that prosecution is to be conducted by persons appointed as Assistant Public Prosecutors who need not require permission from the Court. Where an Assistant Public Prosecutor is not available in a case, District Magistrate may appoint any other person to be the Assistant Public Prosecutor for that particular case. Where a private person instructs a Lawyer to prosecute any person, he is to act under the direction of the Assistant Public Prosecutor and may independently submit written agrement. In all cases. Court may permit a person to conduct the prosecution. Thus, permission to conduct the prosecution u/s 302 (1), Criminal Procedure Code would cover cases where there is no Assistant Public Prosecutor for the case. Where there is an Assistant Public Prosecutor, who can conduct the case without permission power u/s 302 (1), Criminal Procedure Code is to be availed when another is engaged. Under the entire scheme, Legislature never intended that the Assistant Public Prosecutor ought not to conduct two rival prosecutions arising out of the same occurrence. A public Prosecutor is not a lawyer for a party. He is supposed to be fair and advise the Court in accordance with law. When a Public Prosecutor conducts a trial only other the investigation is over. Statements of witnesses recorded u/s 161, Criminal Procedure Code and in some cases u/s 164, Criminal Procedure Code are available. No presumption can be made that the investigation is not fair or the statements have not been faithfully recorded. No instruction is required to be given by a witness to the Public Prosecutor. If, as in this case, a private lawyer is engaged, he can conduct the case under the direction of the Public Prosecutor. No fair public prosecutor would obstruct the fair and efficient conduct of prosecutions. Therefore, merely because two prosecutions have been initiated against rival groups arising out of self-same occurrence, there is no bar for the same Assistant Public Prosecutor conducting both the cases. On any case trying Magistrate is not competent to keep the Assistant Public Prosecutor out of the prosecution on the basis of application of the informant.

In the result this application has no merit which is accordingly dismissed.