Kuldip Singh vs State of Punjab and Others

Satpal, J.—This revision petition has been filed u/s 401 of Code of Criminal Procedure (in short, the Code) against the order dated 3rd May, 1995, passed by the learned Sessions Judge, Faridkot, which reads as under:

"Two D.Ws have been examined, District Attorney has not cross-examined them. An application has been filed on behalf of complainant to cross examine the defence Witnesses. Counsel for complainant is only, to assist the public Prosecutor. Hence this application is declined.

Briefly stated that facts of the case are that a case was registered against respondents 2 and 3 u/s 302 IPC vide FIR No. 43 dated 16th May, 1993. The said case is being tried by the learned Sessions Judge, Faridkot. On 3rd May, 1995, Shri Gurmail Singh, DSP, Special Branch, appeared as a defence witness and stated that as per his inquiry, he found that accused Sukh winder Singh (respondent No. 3) was not present in his clinic on the 15th May, 1993 and that his plea of alibi was correct. On the same date, another defence witness Dr. Balwinder Singh, brother of the said accused was also examined and he also gave a statement in favour of said Dr. Sukhwinder Singh. It has been alleged in the petition that the Public Prosecutor did not cross-examine these witnesses at all though opportunity to cross-examine these witnesses was given by the court. In view of this, the application was filed on behalf of the complainant to cross-examine the aforesaid two defence witnesses and the same was rejected by the learned Sessions Judge vide order, dated 3rd May, 1995.

Mr. Jasbir Singh, learned counsel appearing on behalf of the petitioner/complainant submitted that the statements given by the above mentioned two witnesses go to the root of the matter but the Public Prosecutor did not put a single question in cross-examination of these witnesses and thus he has not performed his duty properly and in such a case, the learned counsel for the complainant ought to have been given an opportunity to cross-examine these witnesses in the interest of justice. In support of his statement, the learned counsel placed reliance on a judgment of this court in the case Roop K. Shorey, Film Producer Vs. The State, .

Mr. Merchea, learned counsel appearing on behalf of the respondent, Sukhwinder Singh, however, submitted that a counsel engaged by a private party cannot be permitted to plead and act independently though he can assist the prosecution in conducting the trial and with the permission of the Court, can submit written arguments. He, therefore, contended that the petition being without any merit should be dismissed. In support of his submission, the learned counsel placed reliance on the following judgments:-

(i) Subbulaksmi v. State (Inspector of Police, Dowry Cell, Crime Branch, Egmore, Madras) and others 1993 (1) ALT 33 :

(ii) Manhar Lal I. Shah v. Yogeshkumar Kanaiyalal Saraia 1987 (2) RCR 279; and

(iii) In Re: Rakhan Ojha alias Rakhal Chander Ojha 1988 Cri.LJ 278 (Cal).

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. In terms of Section 301(2) of the Code, a pleader engaged by a'' private party cannot plead though he can act and that too under the directions of the Public Prosecutor. In view of this, normally, a counsel representing the complainant party cannot conduct the prosecution and he can only assisst the Public Prosecutor in prosecuting the case and file written arguments at the end of the arguments with the permission of the Court. But in the present case, the Public Prosecutor appears to have abdicated his functions by not putting any question to the defence witnesses in cross- examination though the statement of the said witnesses is material. In the case Pratap Vs. State of U.P. and Others, it was held by the Supreme Court as follows:

" The power u/s 439 Cr.P.C. (of the old Code (Section 401 of the new 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 the revision petition and the Government did not do so does not affect the power of the High Court under that Section. "

Again in the case of Janta Dal v. H.S. Chaudhary 1993 Cri.L.J. 600 (SC) it was held by the Supreme Court "that the inherent power u/s 482 of the Code could be exercised by the High Court to give effect to any order passed under the Code or to prevent the abuse of the process of any court or to otherwise secure the ends of justice but the inherent power could not be exercised to stifle a legitimate prosecution."

In view of the law laid down by the Supreme Court in the above mentioned judgments and keeping in view the peculiar circumstances of the case, I am of the view that it would be in the interest of justice that the aforesaid defence witnesses are cross-examined by the learned Public Prosecutor again with the assistance of the learned counsel for the complainant. Accordingly the impugned order dated 3rd May, l995 is set aside and it is directed that the above mentioned two defence witnesses be cross examined again by the learned Public Prosecutor with the assistance of the learned counsel for the complainant. Since the case is old one, the parties are directed to appear before the learned trial Court on 27th November, 1995. The learned trial Court is directed to fix an early date for cross-examination of the said two witnesses and dispose of the case preferably within two months.

With this order, the petition stands disposed of.