P. Thinagaran vs State by Public Prosecutor and Others

Padmini Jesudurai, J.—This petition coming on for hearing upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr. T.J. Anandavelu advocate for the Petitioner and of the Public Prosecutor on behalf of the State and of Mr. V. Gopinath advocate for the Respondents, 2 to 4 the Court made the following Order:

Invoking the inherent powers of this Court u/s 482 Code of Criminal Procedure the Petitioner, who has filed a private complaint against Respondent 2 to 4 for offences under Sections 397, 323, 423, and 447 read with Section 35 I.P.C., which after committal is pending trial as SC.69/88 before the Assistant Sessions Judge, Tiruvanamalai, seeks quashing of the order passed by the Trial Court dismissing Crl. M.P. No. 30/89 filed by him u/s 301(2) Code of Criminal Procedure and refusing to grant permission to his private counsel to conduct the prosecution during trial.

Thiru T.J. Anandavelu, learned Counsel for the Petitioner would contend that circumstances have necessitated having a private counsel to conduct the prosecution in Sessions, since prior to this complaint in Court, out of which the present Sessions case arises, the Petitioner had given another complaint about the occurrence to the first Respondent police, and the latter without proper investigation had went only referred the complaint, compelling the Petitioner to file the private complaint in Court and under these circumstances the Petitioner cannot expect the Public Prosecutor of the Court to conduct the prosecution before the Assistant Sessions Court in a fair and effective manner and a well-briefed private counsel alone would be able to do justice to the prosecution case. According to the learned Counsel, the Public Prosecutor is bound to be biased and prejudiced against the Petitioner, since the police had wrongly referred that case. Reliance was placed upon the decision of the Punjab High Court in Roop K. Shorey v. The State AIR 1967 Punjab 42.

Per contra, Thiru Gopinath, learned Counsel for Respondents 2 to 4 by referring to the different provisions in the Code of Criminal Procedure on this aspect, contended that the prayer of the Petitioner seeking permission from the court to his private counsel to conduct the prosecution in the Sessions case, is contrary to the provisions of the Code and the learned Assistant Sessions Judge, therefore, had rightly rejected the prayer.

The short question that arises for consideration is whether the order of the learned Assistant Sessions Judge refusing to grant permission to a private counsel to conduct the prosecution before him, could be legally sustained?

A few provisions of the Code of Criminal Procedure have now to be extracted and referred to. A "Public Prosecutor" is defined in the code in Section 2(u)

"(u)" Public Prosecutor" means any person appointed u/s 24, and includes any person acting under the directions of a public Prosecutor.

Section 24 deals with the appointment of Public Prosecutors by the Central Government or the State Government for the High Court as well as for each District. Section 24(3) is as follows:

24(3) For every District as Public Government shall appoint a Public Prosecutor and may also appoint one or more additional Public Prosecutors for the district:

Provided that the public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

Subsequent Sub-Sections deal with the mode of appointment and the qualifications for appointment.

Section 225 indicating the person competent to conduct the prosecution is a court of Sessions, is as follows:

Trial to be conducted by Public Prosecutor: In every trial before a Court of Sessions, the prosecution shall be conducted by a Public Prosecutor.

The above provisions read with Section 2(u) extracted above, makes it clear that it is only the Public Prosecutor appointed u/s 24 and any one acting under the direction of the Public Prosecutor are the only persons competent to conduct the prosecution in a Sessions Court. A private pleader, acting independent of the Public Prosecutor and as a substitute for the Public Prosecutor, does not come into the picture at all. If a private pleader is to conduct the prosecution, he could come only within the category of one "acting under the directions of the Public Prosecutor". The prayer of the Petitioner seeking permission of the Sessions Court to his private pleader to conduct the prosecution, is contrary to the above provisions of the Code.

Section 301(2) lays down the nature of the Assistance that a private pleader assisting the Public Prosecutor could render. This provision applies not only to Sessions Courts but also to other courts as well, and includes Public Prosecutor appointed u/s 24 of the Code and Assistant Public Prosecutors appointed u/s 25 of the Code. Section 301 is as follows:

Appearance by Public Prosecutors:

(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without and 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.

As far as the Sessions case is concerned, if a private person instructs a private pleader to prosecute any person, the Public Prosecutor alone could conduct the prosecution, and the pleader so instructed shall act therein, under the directions of the Public Prosecutor and may, with the permission of the court submit written arguments after the evidence is closed in the case. The object behind these provisions in not permitting a private pleader to conduct the prosecution, is not far to seek. Unlike civil wrongs, wherein parties vindicate their rights and seek redress, criminal offences are considered as offences not against the victim as such, but against society. The State, which is the ultimate custodian of law and order and the protector of the rights of individuals is given the task of prosecuting the offenders. When the State thus prosecutes, it can choose a counsel of its own choice, subject to the limitations mentioned in Section 24 of the Code and appoint him u/s 24. Neither the victim of the crime nor the trial court come into the picture. This is the scheme of the Code of Criminal Procedure. The prayer of the Petitioner is against the general scheme of the Code of Criminal Procedure, as well as the specific statutory provisions referred to above. The learned Magistrate, therefore, has rightly rejected the prayer and his order, though non-speaking, has to be legally sustained for the reasons mentioned above.

In the result, this Criminal Miscellaneous Petition is dismissed.