Paragji Bhulabhai vs Bhagwanji Bawabhai

John Beaumont, Kt., C.J.—This is a reference made by the District Magistrate of Surat, which raises a short point of practice. The accused was prosecuted on a private prosecution, and was convicted, and he appealed to the City Magistrate of Surat. The learned Magistrate held that the complainant''s advocate was not entitled to be heard on the appeal, but only the Public Prosecutor could be heard. The District Magistrate was then moved in revision and he has referred the matter to us, because in his opinion the complainant was entitled to be heard by an advocate, and he says that it is the practice obtaining in the District of Surat, as in other Districts, that in appeals in private cases opponents'' pleaders are heard.

I think the strict rule is that in an appeal against a conviction only the Crown is entitled to be served with notice, and heard. Notice is served on an officer on behalf of the Local Government u/s 422 of the Criminal Procedure Code, and in my opinion nobody but the Crown is entitled to be heard, because no private citizen is technically interested in upholding a conviction. The practice in the High Court is for the advocate for the complainant to be heard if the Court thinks fit to hear him. In some appeals the Government Pleader does not appear, for instance, an appeal against conviction for defamation in a private prosecution where Government may feel that they are not really interested in upholding the conviction. In my opinion the true rule, which should be followed in all Courts, is that in private prosecutions the Court in its discretion may allow the complainant to appear by an advocate, but it is not in any case bound to do so.

I think, therefore, we can only send the case back to the City Magistrate with an intimation that he is entitled, if he thinks fit, to hear an advocate for the complainant.

Sen, J.

I agree.