Dattaraj vs State and Another

K. Sreedhar Rao, J.—These petitions are filed u/s 482 of the Cr. P.C. challenging the order of the Additional City Civil and Sessions Judge, Bangalore passed in Cri. Misc. No. 2675 and 2774 of 2002 respectively.

The parties hail from both politically and financially influential families. The petitioner is the brother of the deceased. The accused A2 is the wife of the deceased and A1 is the paramour of A2. The accused persons found the deceased an impediment to their free living, in addition, they found that A2 could inherit large valuable estate, if the deceased is killed. In that view, in a meticulously designed plot, the deceased was murdered. The police after registration of the case were left with no clues to apprehend the offenders.

It is the contention of the petitioner that they suspected A2 in the murder and after shadowing the accused for quite a long time, he was able to tape-record the telephonic conversation between A1 and A2, which gave substantial clues and material about their involvement in committing the murder. In the course of investigation, the Investigation Officer has recorded the statement of the petitioner and he has made reference to the tape-recorded cassettes. It appears that the petitioner entertained doubts about the integrity of the investigation. A private complaint filed u/s 200 of the Cr. P.C. before the Judicial Magistrate First Class, Aland and in the said proceedings, the tape-recorded cassettes containing the incriminating material against the accused is produced.

The investigation, which was initially conducted and partly done by the CPI is now taken over by ACP.

The accused have moved a bail application in Cri. Misc. No. 2774 of 2002 before the Sessions Court. The prosecution is resisting the bail application. The petitioner appeared through a Counsel and sought orally permission to contest the bail application. The Trial Court partly allowed the request permitting the petitioner to assist the prosecution as envisaged u/s 301 of the Cr. P.C. Not satisfied with the impugned order of granting permission to play only a secondary role, has filed this petition contending that the facts and circumstances do not support that the prosecution is being conducted sincerely and effectively to resist the bail application and that the investigation is conducted in a lukewarm manner. The incriminating material by way of tape-recorded cassettes are being deliberately ignored and not taken as a part of the file. Hence, contended that independently the petitioner should be permitted to contest the application. In that behalf, the learned Counsel submits that the person interested has a locus to participate in the proceedings independently in his own right.

The learned Counsel for the petitioner relied on the ruling of the Supreme Court in the case of Puran Vs. Rambilas and Another etc. etc., . It is a case, where a close relative of the deceased was aggrieved by the order of granting bail to the accused made an application u/s 438 of the Cr. P.C. for cancellation of the bail. The locus of the person interested in the lis to make an application u/s 439 of the Cr. P.C. was the point under consideration. It was held by the Supreme Court that it is not necessarily that the State alone has a monopoly of moving application before the Court u/s 439 of the Cr. P.C. for cancellation of the bail. Even the person interested in the cause can make an application u/s 439 of the Cr. P.C. to seek cancellation of the bail. In the another decision of the Supreme Court in the case of M/s. J.K. International Vs. State, Govt of NCT of Delhi and Others, . In a writ petition for quashing of FIR, it is held that the complainant, who lodged the FIR is also a necessary party and to be heard before any final orders are passed with regard to quashing.

Per contra, the learned Counsel for respondent 2 relied on the ruling of the Supreme Court in the case of Kishan Swaroop Vs. Govt. of NCT of Delhi, wherein, it is held that a private party has no right to file an appeal or revision, under the CPC and that Public Prosecutor alone is entitled to prefer an appeal or revision against an order of acquittal. However, the said decision makes it clear that the High Court is endowed with revisional powers to set aside an order of acquittal even at the instance of private party but, only in an exceptional case vide K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, .

On the point of law about the private party to move the Court in an appeal or revision or u/s 439 of the Cr. P.C. to seek cancellation of the bail granted. It is no more a res integra on the point of law. However, this case projects a peculiar and distinct question of right of a party to oppose the bail application independently parallel to the right of prosecution. The ACP, who is conducting the investigation has filed a detailed report about the stage and progress of investigation and the incriminating material collected so far. He has also referred to the tape-recorded cassettes produced by the petitioner. It is said that an application is made by the Investigating Agency before the Judicial Magistrate First Class, Aland for securing the tape-recorded cassettes to make it a part of the record. The mala fides alleged against the Investigating Agency is stoutly denied and it is reiterated that the material by way of tape-recorded cassettes is also very much the material relied on by the Investigating Agency to prove its case and the same would be effectively used by the prosecution.

In view of the averments, the grievance of the petitioner becomes only an academic issue. The provisions of Section 301 of the Cr. P.C., read thus:

"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".

It becomes explicit that a private person is also entitled to assist the prosecution. The scope and the relief provided under Sub-section (2) of Section 301 of the Cr. P.C. 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. The participation provided to the private person under Sub-section (2) is not an illusory right. It is impermissible to cynically contend that the Public Prosecutor may ignore the assistance of the private party or his assisting Counsel. The proceedings are conducted in an atmosphere of transparency and openness. The Judge is an impartial Arbitrator of the lis and would be very much aware of the ongoings. The Public Prosecutor is a public servant, he cannot arbitrarily reject the relevant and the authentic material useful to the case, else he would risk his career. Although a limited secondary role to the victim, participation is envisaged u/s 301 of the Cr. P.C., it imbibes necessary checks and balance providing sufficient scope and opportunity for victim''s participation and to check the arbitrariness of the prosecution agency, if any.

In that view of the matter, I find, whatever, the relief granted by the Sessions Court permitting the petitioner under Sub-section (2) of Section 301 of the Cr. P.C. to assist the prosecution is just and proper does not call for any interference.

On facts also, the apprehension of the petitioner is fully allayed by the undertaking given by the State on behalf of the Investigating Agency that the material whatever referred to by the petitioner is already taken note of and would be fully utilized to prove the guilt.

In that view, the petitions are dismissed.

Sri V.Y. Kumar, learned High Court Government Pleader is permitted to file his memo of appearance within four weeks from today.