Kartik Chandra Bhattacharya and Others vs State of U.P. and Another

P.P. Gupta, J.—This is an application on behalf of the accused-Applicants u/s 482 of the Code of Criminal Procedure (hereinafter referred to as ''Code''), for setting aside the order dated 7-2-92 passed by M.M. III, Govind Nagar, Kanpur Nagar in case No. 466 of 1987, State v. K.C. Bhattacharya and Ors..

The Applicants are accused u/s 498 IPC in the aforesaid case No. 466 -of 1987. This case was being conducted by the Assistant Public Prosecutor on behalf of the State. After the close of examination, in-chief of the defence witnesses, an application purporting to be u/s 301/302 of the Code was moved on behalf of the complainant-opposite party No. 2 seeking permission to cross-examine the defence witnesses by the complainant''s private counsel. The A.P.P. conducting the case permitted the private counsel to do so. It was, however, objected to by the Applicants who filed objections to the said application on 30-1-92. After hearing the learned Counsel for both the parties and the learned A.P.P., the learned Magistrate permitted the private counsel engaged by the complainant to act on behalf of the prosecution and to cross-examine the defence witnesses. This order dated 7th February, 1992 passed by the learned Magistrate has been challenged by the accused-Applicants in this application.

I have heard the learned Counsel for the parties and have perused the record of the case also.

Section 301(1) of the Code provides that 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. Sub-section (2) of Section 301 provides that the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader engaged by a private person shall act under the directions of the public prosecutor or the Assistant Public Prosecutor and may with the permission of the court, submit written arguments after the evidence is closed in the case.

Placing reliance on a decision of the Lucknow Bench of this Court in the case of Hargovind Misra v. State of U.P. 1982 ALJ 895, the learned Counsel for the Applicants argued that complainant''s private counsel could only assist the Public Prosecutor but he could not be allowed to personally conduct the case.

In the case cited above, an application was moved by the complainant who had engaged a private counsel for a direction to the A.P.P. to produce case diary in court and for giving the same to the private counsel to assist the prosecution to lead the evidence in court. While rejecting this prayer, the court held that private counsel could not be allowed to personally conduct the case. It was, therefore, submitted by the learned Counsel for the Applicants that in view of the law laid down in this case, the private counsel cannot be permitted to cross examine the defence witnesses.

This argument has no merits, Sub-section (2) of Section 301 accords permission to the private pleader to act under the directions of the Public Prosecutor or the Assistant Public Prosecutor. In a subsequent case of Suresh alias Surendra v. State of U.P. 1986 ACR 111, the word ''Act'' used in this sub-section was interpreted to mean to have a right to address the court and also to examine and cross-examine the witnesses. If that right is not given to the private counsel, how he can act in the case and how can this right to act is to be exercised. In this context, the learned Judge observed :

In the instant case in view of the meaning of word ''Act'' the simple interpretation of Section 301(2) would be that if any private person or complainant instructs any Advocate to prosecute any person in any court the proceedings would be conducted by the Public Prosecutor and the Advocate so instructed shall also be performing his positive acts and would perform his professional function in positive, effective and assertive way, but certainly under the direction of the Public Prosecutor and at the close of the trial he shall be having an additional opportunity to submit written arguments with the permission of the Court. It cannot be assumed that the legislature intended that any Advocate engaged by a complainant would remain just a silent spectator and would not contribute positively to the proceedings of the Court, but certainly he has to act under the directions of the Public Prosecutor.

Therefore, the plain meaning of Sub-section (2) is that so long as the Public Prosecutor does not abdicate his functions and retains with himself the control over the proceedings, the private counsel so engaged can act under his direction. The prosecutor has to conduct the prosecution and while conducting the prosecution, he has to determine all the important questions of policy involved in the course of trial and the private counsel shall also perform his duties in rendering valuable assistance to the Public Prosecutor. The word ''Act'' used in Sub-section (2) includes examining or cross examining witnesses or addressing the Court. But in doing so, he shall be under the guidance and supervision of the Public Prosecutor in charge of the case. If that right is not granted to the private counsel, the whole purpose of the provision made under Sub-section (2) shall be frustrated. How, a private counsel can act if he is not permitted to examine or cross-examine the witnesses and address the Court? Therefore, the word ''act'' used in Sub-section (2) does not mean something other than examining or cross examining the witnesses or addressing the court. But in doing so, he shall be acting under the supervision and guidance of the Public Prosecutor.

On behalf of the Applicants it was submitted that since there is a conflict in the decisions of Lucknow Bench and Allahabad High Court, cited above, the issue may be referred to a larger Bench.

In the case of Har Govind Misra (supra) decided by the Lucknow Bench, it was held that Section 302(2) of the code does not allow the private counsel to conduct the case personally. This Court in the case of Suresh alias Surendra (supra) has also taken a similar view by holding that simple interpretation of Section 301(2) would be that if any private person or complainant instructs any Advocate to prosecute any person in any court, the proceedings would be conducted by the public prosecutor and the private Advocate would act in an effective manner under the directions of the Public Prosecutor. Thus there is no apparent conflict between the two decisions. The scope and meaning of word ''act'' was not considered by the Lucknow Bench in the case of Hargovind Misra while it has been thoroughly considered and discussed by this Court in the case of Suresh alias Surendra. Hence, the issue needs no reference to a larger bench.

In the instant case, the complainant engaged a private counsel to act on this behalf. The Assistant Public Prosecutor in charge of the case permitted him in writing to do so. The private counsel had, therefore, every right to cross-examine the defence witnesses and to address the Court. The learned Magistrate was, therefore, right in permitting the private counsel to cross examine the defence witnesses who had the written permission of the A.P.P. The objections raised on behalf of the Applicants were devoid of any force and were rightly rejected by the learned Magistrate. This application has no merits.

In view of the above discussion, this petition u/s 482, Code of Criminal Procedure filed by the accused Applicants is hereby dismissed. The private counsel engaged by the complainant-opposite party No. 2 and permitted by the A.P.P. who is in charge of the prosecution is allowed to cross examine the defence witnesses and also to submit written arguments after the evidence is closed in the case.

The learned Magistrate is directed to dispose of this case within six weeks from the date a certified copy of this order is produced before him.

Let a copy of this order be given to the parties within twenty four hours on payment of usual charges.