Polagani Venkaiah vs Katta Chinnamma and Others

N.D. Patnaik, J.—On a report given by the petitioner the police have registered a case against the accused Under Sections 306, 323 and 498A of the Indian Penal Code and Section 3(1) of the Dowry Prohibition Act and after investigation of the case, charge sheet was filed. Thereafter the case was committed to the Court of Session for trial and the same is pending trial in Sessions Case No. 91/87. Not being satisfied with that, the petitioner has filed a private complaint against the same accused under Sections 302, 498A 34 and 109 of the Indian Penal Code. That case was also committed to the Court of Session and the same is pending trial in Sessions Case No. 52 of 1989 Both the cases were clubbed and trial is pending before the learned Additional Sessions Judge, Eluru.

While so, the petitioner who is the complainant, filed Crl M P No 2301/90 before the learned Additional Sessions Judge for permission to cross-examine the prosecution witness. That application was dismissed. Against that this petition is filed.

The contention of the learned counsel for the petitioner is that as the petitioner had filed a private complaint not being satisfied with the charge-sheet filed by the police and case was also committed to the Court of Session for trial, he must be given an opportunity to engage a counsel and cross examine the prosecution witnesses.

As pointed out that the learned counsel for the accused, who are respondents 1 to 4, herein, every trial before the Court of Session has to be conducted by the Public Prosecutor. Sub-Section (2) of Section 301 of the Code of Criminal Procedure provides ;

"(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 incharge 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".

So, if any counsel is engaged by any party, he can only act under the directions of the Public Prosecutor. In the decision Roop K. Shorey, Film Producer Vs. The State, referred to by the learned Counsel for the petitioner, it is pointed out that so long as the Public Prosecutor does not abdicate his functions and retains with himself control over the proceedings, a private counsel can examine or cross-examine the witnesses or even address arguments. It is further pointed out that so long as a private counsel acts under the guidance and control of the Public Prosecutor, he is entitled to do so under the provision of Section 493 of the Cr. PC (old Code). The learned Judge further pointed out :

"Public Prosecutors are expected to act in a scrupulously fair manner and present the case with detachment and without anxiety to secure a conviction. If this principle is allowed to be departed, it may result in a serious peril to the rule of law. The Legislature was therefore, conscious of this salutary rule of jurisprudence and it was in this view, that it choos to enact Sections 493 and 495 Criminal Procedure Code which in effect recognise the aforesaid. The Courts trying the case must not permit a public Prosecutor to surrender his functions completely in favour of a private counsel".

In this case since both the cases are clubbed together and if the Public Prosecutor conducts the Prosecution any counsel engaged by the complainant can only act under the directions of the Public Prosecutor and naturally he cannot cross-examine the witnesses examined by the Public Prosecutor on behalf of the prosecution. The learned additional Sessions Judge has therefore rightly rejected the application filed by the petitioner to enable his counsel to cross-examine the prosecution witnesses. There are no merits in this petition. It is accordingly dismissed.