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 AM. opposite party No. 3 lodged an information at Banpur Police Station which was registered as P.S. Cast 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 I.P.C. read with Section 34 I.P.C. 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 341/323/337/426/506/34 I.P.C.

An Assistant Public Prosecutor has been appointed by the State Government for the Court of the Judicial Magistrate First Class, Banpur who is to conduct all cases registered as G.R. Cases in the Court. On 12.2.1986, 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 & G.R. Case No. 213 of 1984 and counter cases to each other. In one case, the informant and principal witness 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 in 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 Prosecutor may be utilised for his prosecution in the other case.

Learned Magistrate did not allow the petition in view of the provision in Section 301(2) Code of Criminal Procedure 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 for the Petitioner submitted that the learned Magistrate has Dot been able to appreciate the decision of the Andhra Pradesh High Court reported in 1981(1) AWR 132 (G. Ramakrishna Reddy and Ors. v. State). 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 or 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 conduce the prosecution in case where he does not believe the prosecution to be true. It would be proper for him to withdraw from the prosecution with the consent of the Court or to request to 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 7air 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 make necessary arrangements 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 Code of Criminal Procedure 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 Section 301(2) and 302 Code of Criminal Procedure would lead to the it resistible conclusion that the Court can permit any person to conduct the prosecution. To appreciate the contention of Mr. Dhal, the relevant portion of those Sections 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) x x x x

(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 a police officer shall not be so appointed-

(a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or

Appearance by Public Prosecutors.

(1) The Public Prosecutor of 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 thew 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 argument. In all cases, Court any permit a person to conduct the prosecution. Thus, permission to conduct the prosecution u/s 302(1) Code of Criminal Procedure 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) Code of Criminal Procedure 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 & advice the Court in accordance with law. When a Public Prosecutor conducts a trial only after the investigation is over. Statements of witnesses recorded u/s 161 Code of Criminal Procedure and in some cases u/s 164 Code of Criminal Procedure 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. In 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.