14. From the aforesaid discussions, the only conclusion that can be drawn is that there is no scope for filing a caveat as required under section 148-A of the Code of Civil Procedure in a criminal proceeding. The first question of law is answered accordingly.
Jharkhand High Court
Santu Mahto vs The State Of Jharkhand on 24 July, 2014
2. By Order dated 17th June 2014, following questions of law have been referred for consideration before this Bench by the learned Single Judge.
(i) Whether in a criminal proceeding a 'Caveat Application' is required to be filed as provided under Section 148(A) of the Code of Civil Procedure?
(ii) Whether the informant and the victim, who are ultimate sufferer of a criminal case, have legal right to appear, in a proceeding initiated at the instance of accused, through a private lawyer as per the provisions contained under Section 301(2) of the Cr.P.C., as well as the law laid down by the Hon'ble Supreme Court in the case of J.K. International case (Supra)?
3. The background for making such a reference is as follows:
In a Habeas Corpus petition being W.P.(HB Cr.) No. 95/20212 (Bibi Samsha Khatoon vs. The State of Jharkhand & others), the learned Division Bench of this Court after finding that vakalatnama have been accepted on behalf of the respondent no. 5 by the Registry of the Court without any notice ever been issued to him, has held as follows:
"1.Counsel appearing for the petitioner has argued out the case at length. Counsel for the State is also present.
2.Notice upon respondent nos. 5 and 6 be served by ordinary process, for which, requisites etc. must be filed on or before 20th June, 2014.3. Registry of this Court ought not to have accepted any Vakalatnama on behalf of respondent no. 5 because no notice has ever been issued. Such type of error should not recur in future by the Registry of this Court. It ought to be kept in mind by the Registry of this Court that unless the Court issues notice upon the private respondent (s), in advance, no Vakalatnama can be filed by any party. What can be filed, in advance, is known as "Caveat Application" under Section 148 (A) of the Code of Civil Procedure. Henceforth, such type of acceptance of Vakalatnama should be avoided by the Registry of this Court.4. A copy of this order will be given to the Registrar General of this Court for issuance of necessary action.5. We also direct the head of Basantrai Police Station of District Godda, to file an affidavit as to whether in the instant case, filed by the petitioner, charge sheet has been filed or not? This affidavit shall be filed by the aforesaid police officer on or before the next date of hearing.6. Notice is made returnable on 14th July, 2014."4. When the instant bail application was being heard before the learned Single Bench, an objection was raised on behalf of the petitioner that in view of the order dated 13th May 2014 passed in W.P.(HB Cr.) 95/2012, the informant could not appear through the counsel as no notice have been issued to the informant / private party, nor the informant / private party had filed a Caveat application under section 148(A) of the Code of Civil Procedure. Therefore, it was prayed that his appearance on behalf of the informant is liable to the rejected. Learned Single Judge, after noticing the provisions of section 301(2) of the Cr.PC. and the judgment rendered by the Hon'ble Supreme Court of India in the case of J.K. International vs. State (Govt. of NCT of Delhi) and others [(2001) 3 SCC 462], was of the view that in a criminal proceeding, Code of Civil Procedure had no application and there is no provision for filing a caveat application in a criminal proceeding. Therefore, the aforesaid questions of law were referred to the Full Bench for reconsideration of the order passed by the learned Division Bench of this Court, as aforesaid. The matter has thereafter been placed before this Bench by order of Hon'ble the Chief Justice.
5. At the outset, it must be stated that when the arguments were heard, learned counsel appearing on behalf of either of the parties, volunteered to assist the court on the aforesaid questions of law, rather than arguing for and against the aforesaid issue.
6. Mr. K.P. Deo, learned counsel appearing on behalf of the petitioner and Mr. A.K. Kashyap, learned Senior Counsel appearing on behalf of the informant, both referred to the provisions of Section 301(1)(2) of the Cr.PC. whereunder, in a inquiry, trial or appeal, any private person may instruct the pleader to prosecute any person in court and in such circumstances, the pleader so instructed shall act under the direction of the Public Prosecutor or Assistant Public Prosecutor who is conducting the prosecution. Learned counsel also referred to the newly added provisions of section 2(wa) of the Cr.PC. which contains the definition of victim and the proviso added to section 372 Cr. PC whereunder the victim has been conferred the right to appeal against the order of acquittal of an accused or also against his conviction for lesser offence or on imposition of inadequate compensation. Learned counsel has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Bhagwant Singh vs. Commissioner of Police and another [(1985) 2 SCC 537] to submit that an injured person or relative has a locus to appear in the court to oppose the dropping of the proceedings against an accused by the Magistrate on the basis of a police report under section 171(3) Cr.PC.. Learned counsel has further relied upon a judgment rendered by the Hon'ble Supreme Court in the case of Shiv Kumar vs. Hukam Chand and another [(1999) 7 SCC 467] and submitted that the provisions of sections 301 and 302 Cr.PC. are applicable to all courts of criminal jurisdiction. Therefore, even at the stage of proceedings seeking grant of bail by an accused, the informant is entitled to appear to assist the court, though under the instruction of Public Prosecutor to prosecute / oppose the prayer. Learned counsel for the petitioner has also relied upon an Article published on 'Victims of Crime Unseen Side' of Hon'ble Mr. Justice A.S. Anand as the Lordship then was [(1998) 1 SCC 1]. According to him, law has progressed in the matter of recognition of the rights of victim who have been all along deprived of due recognition in the matters of criminal prosecution, though they are the ultimate sufferers. Learned counsel has further relied upon a judgment rendered by the Hon'ble Supreme Court in the case of J.K. International (Supra), It is submitted that the Hon'ble Supreme Court in the said judgment, categorically held that in a proceeding for quashing of a criminal prosecution, presence of the informant / complainant who is aggrieved of the offence, cannot be altogether wiped out from the scenario of the trial because the investigation was taken over by the police and the charge sheet was laid by them. If the complainant wishes to be heard when the criminal proceedings are sought to be quashed, it would be a negation of justice, if he is foreclosed from being heard even after he makes a request to the Court in that behalf. It has been submitted that sections 301 and 302 Cr.PC., have been also considered by the Hon'ble Supreme Court in the said judgment, while recognizing the role to be played by a private person, though limited, even in the Sessions Court. It is submitted that the Court has been granted the power to permit even such private person to submit his written argument in the court including the Sessions Court and if he does so, the Court has the duty to consider such argument before taking a decision. It has been further submitted on their part that the provisions of Code of Civil Procedure are applicable to all civil proceedings / civil suits, whereas under section 4 of the Code of Criminal Procedure, all criminal trials are to be conducted under the provisions of Criminal Procedure Code. Therefore the provisions of Section 148-A of the Code of Civil Procedure cannot be borrowed in a criminal proceeding for enabling the private persons / informant to file a caveat petition to oppose the prayer for bail. Learned counsel for the petitioner by referring to Chapter-IX Rule 86 to 89 of the Jharkhand High Court Rules, has also pointed out that they are enabling provisions to be followed in case a caveat petition is filed in a civil proceeding before the High Court.
7. Learned Senior Counsel Mr. A.K. Kashyap has drawn attention of the Court to the newly added proviso to section 24(8) of the Cr.P.C. wherein the Court may permit the victim to engage an Advocate of his / her choice to assist the prosecution. It is submitted that under section 439 Cr.P.C containing provisions for grant of bail by the High Court and the Sessions Court, there is mandatory requirement of service of notice, on an application for bail, to the Public Prosecutor, unless for the reasons to be recorded in writing, the Court is of the opinion that it is not practicable to give such notice. It is therefore submitted that the victim has been conferred a right to assist the Public Prosecutor in opposing such prayer even in a proceeding for bail initiated on behalf of the accused. Learned counsel for the petitioner as well as informant have submitted that a private person who may be the informant / complainant himself or relative of the victim or the injured, has the right to appear before the Court and assist the prosecution to oppose such prayer of the accused even in the case of application of bail.
8. Learned A.P.P. Mr. Arun Kumar Pandey has submitted that the Public Prosecutor under the provisions of section 172 Cr.P.C is the custodian of all police papers and the records and it is he who is entrusted with the responsibility to prosecute the offender / accused. However, learned A.P.P. is also of the view that the private person may instruct the Public Prosecutor to oppose the prayer of the accused even in a bail proceeding before the High Court.
9. Having considered the submission of the learned counsel for the parties and the provisions of law and the judgment relied upon by them, let us address the first question referred for consideration before this Bench, i.e. whether in a criminal proceeding a 'Caveat Application' is required to be filed as provided under Section 148(A) of the Code of Civil Procedure?
Premable to the Code of Civil Procedure, 1908 reads as under:"An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; it is hereby enacted as follows _______________."
10. Section 5 of the Code of Civil Procedure provides for application of the Code to the Revenue Courts; whereunder any Revenue Court are governed by the provisions of this Code in those matters of procedure upon which, any special enactment applicable to them is silent. The State Government may by notification in the official Gazette declare that any portion of those provisions which are not expressly made applicable by this Code, shall not apply to those courts, or shall only apply to them with such modifications as the State Government may prescribe. Part-I of the CPC provides for the jurisdiction of the Court and res judicata. Section 9 CPC provides that the Courts shall try all civil suits unless barred. It provides that the Court shall (subject to the provisions therein contained) have the jurisdiction to try all suits of civil nature excepting suits for which their cognizance are expressly or impliedly barred. Section 141 of the CPC provides for miscellaneous provisions as per which, the procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Explanation thereof provides that the expression 'proceedings' includes proceedings under Order-IX, but does not include any proceeding under Article 226 of the Constitution. Reference of the aforesaid provisions of Civil Procedure Code leaves a clear impression that the Code of Civil Procedure applies to all proceedings in any Court of civil jurisdiction i.e. all suits of civil nature except cognizance of which is either expressly or impliedly barred. In the aforesaid scheme of the Code, Section 148-A has to be understood. Section 148-A CPC reads as under:
"148-A. Right to lodge a caveat.- (1) Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made under sub-section (1).
(3) Where, after a caveat has been lodged under sub- section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.
(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the ceveator's expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.
(5)Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period."
11. Under the aforesaid provisions, a person claiming a right to appear before the Court where an application is made or expected to be made in a suit or proceeding instituted or about to be instituted, may lodge caveat in such court in respect thereof. The whole concept and the object behind giving right to a person to lodge caveat in such a suit or proceedings before any Court, is to ensure that before any order is passed at the instance of the person instituting the suit, the person whose interest is likely to be affected, be given an opportunity of hearing. In essence, it is intended to ensure that the person likely to be affected, has a right to oppose the prayer of the applicant in such suit or proceedings and that applicant or the plaintiff may not get an ex-parte order in his favour in the absence of caveator / applicant who has a interest in the matter.
12. The Code of Criminal Procedure is an Act to consolidate and amend the law relating to criminal procedure. Section 4 of Cr.PC provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. Section 4 of the Cr.PC. is in relation to the trial of the offence under the Indian Penal Code and other laws. Section 4 Cr.PC reads as under:
"4. Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
13. It is therefore evident that under the Cr.PC.in a criminal case at any stage of inquiry, trial or appeal, no such specific provision of filing a caveat, as governed by section 148-A of the Code of Civil Procedure exists. There are no other provisions under the Code of Criminal Procedure under which a private party / complainant / informant can file a caveat to oppose the proceeding initiated at the behest of the accused. Learned Division Bench of Delhi High Court vide judgement dated 11th May 2001 passed in WPC No. 1703/2001 in the case of Deepak Khosla vs. Union of India & others, had also the occasion to consider, whether a caveat application is maintainable in a criminal matter to oppose the prayer of the accused person seeking an interim order from the Court? Learned Court after considering the provisions of the CPC and Cr.PC., as has been noticed herein above as well, came to an authoritative conclusion that there is no legal sanction for filing a caveat by the applicant concerned to oppose the prayer of the accused in a criminal matter. Learned Division Bench considered the judgement of Rajasthan High Court in the case of Sahab Ram & another vs. State of Rajasthan & others [2000 (2) WLN 554] which also had taken the same view.
14. From the aforesaid discussions, the only conclusion that can be drawn is that there is no scope for filing a caveat as required under section 148-A of the Code of Civil Procedure in a criminal proceeding. The first question of law is answered accordingly.
15. Let us address the second question of law, i.e. whether the informant and the victim, who are ultimate sufferer of a criminal case, have the legal right to appear, in a proceeding initiated at the instance of accused, through a private lawyer as per the provisions contained under Section 301(2) of the Cr.P.C., as well as the law laid down by the Hon'ble Supreme Court in the case of J.K. International (Supra)?
16. Rights of a victim have undergone considerable progress through the evolution of law, both through the judgements rendered by he Hon'ble Supreme Court as also through the Legislative changes brought about in the Criminal Procedure Code from time to time. In the case of Bhagwant Singh (Supra), the Hon'ble Supreme Court held that the injured person or any relative of the deceased who is not the informant, though not entitled to notice from the Magistrate, has a locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate. If he wants to make his submissions in regard to the report; the Magistrate is bound to hear him. This was the situation where on a report of the police forwarded under section 173(2)(i), relative of the injured who died in the incident complained of, sought an opportunity to be heard at the time of consideration of the report. The Hon'ble Supreme Court held that even if such a person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submission when the report is considered by the Magistrate for the purposes of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report. In the case of P.S.R. Sadhanantham vs. Arunachalam and another [(1980) 3 SCC 141], a petition was filed under Article 32 of the Constitution of India by the accused whose conviction has been restored by the Apex Court on a Special Leave Petition filed under Article 136 of the Constitution by the victim's brother against his acquittal. A plea was taken as to whether the Hon'ble Supreme Court had the power to grant special leave to the brother of the deceased. While considering the said issue, the Constitution Bench of the Hon'ble Supreme Court also considered the meaning of expression "person aggrieved" and "standing". In the said judgement, the Hon'ble Supreme Court considered the provisions of the Code of Criminal Procedure where a right of appeal is vested in the State and if the complainant seeks to prefer an appeal, he ought to obtain special leave to appeal. It was observed that fetters so imposed on the right of appeal was prompted by reluctance to expose a person who has been acquitted by a competent court of criminal charge to the anxiety, tension and examination of the case which may sometimes be actuated by a private party to employ judicial process for personal vendetta. Considering the discretionary jurisdiction of the Hon'ble Supreme Court under Article 136 of the Constitution, however, it was observed that in every such case, Court is bound to consider what is the interest which brings the petitioner to the Court and whether interest of the public community will be benefited by the grant of special leave. It was also observed that in a jurisprudence which elevates the right to life and liberty to a fundamental priority, it is incumbent upon the court to closely scrutinize the motives and urges of those who seek to employ its process against the life or liberty of another. In this inquiry, the Court would perhaps prefer to be satisfied whether or not the State has good reason for not coming forward itself to petition for special leave. The Apex Court on consideration of all the relevant aspects held that there was no justification to question the grant of special leave to the brother of the deceased against the acquittal of the accused under Article 136 of the Constitution.
17. The Apex Court in the case of Shiv Kumar (Supra) in the backdrop of the provisions of sections 24 and 225 of the Cr.PC., proceeded to interpret the purport of section 301 of the Cr.PC. also vis-a-vis 302 of the Cr.PC.. At para-12 of the said judgement, the Hon'ble Apex Court held that this particular section 301 is applicable to all the Courts of criminal jurisdiction, as could be discerned from employment of the words "any court" in Section 301. It held as follows:
"12. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined to Magistrate Courts, this particular section is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from employment of the words "any court" in Section 301. In view of the provision made in the succeeding section as for Magistrate Courts the insistence contained in Section 301(2) must be understood as applicable to all other courts without any exception. The first sub- section empowers the Public Prosecutor to plead in the court without any written authority, provided he is in charge of the case. The second sub-section, which is sought to be invoked by the appellant, imposes the curb on a counsel engaged by any private party. It limits his role to act in the court during such prosecution "under the directions of the Public Prosecutor". The only other liberty which he can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the court permits him to do so.
13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.
14. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter."
(underline added to provide emphasis)
18. The Legislative intention under the scheme of the Code for conferring the power upon a Public Prosecutor to carry out prosecution / conduct the case in the Sessions Court, was also considered with the underlying policy i.e. fairness in the trial of an accused. Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. A Private counsel, if allowed a free hand to conduct the prosecution, would focus on bringing the case to the conviction even if it is not a fit case to be so convicted. The Hon'ble Apex Court therefore observed that this is the reason why the Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.
19. In the case of J.K. International (Supra), the matter related to the petition for quashing filed by the accused before the High Court where the prayer for impleadment as a party by the complainant was declined by the High Court. The Hon'ble Supreme Court held that under the scheme envisaged in the Code of Criminal Procedure, a person who is aggrieved by the offence committed is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. Considering this provision of section 301(2) of the Cr.PC., it was held that even in the Sessions Court where Public Prosecutor is only authority empowered to conduct the prosecution, as per section 225 of the Cr. Pc; a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial. Further, when the trial is before a Magistrate's Court, the scope of any other private person intending to participate in the conduct of the prosecution is still wider, as per the provisions of section 302 of the Code. The Supreme Court also held that under section 301(2) of the Code, under Chapter XXIV "General Provision to Inquiry and Trial", a limited role is permitted to be played by a private person if he is aggrieved and his presence is not wiped out from the proceeding in the criminal trial merely because the case was charge sheeted by the police. The Court is given power to permit such a private person to submit his written argument in the court including the Sessions Court. If he submits any such written argument, the court has the duty to hear such argument before taking a decision. Judgement rendered in the case of Bhagwant Singh (Supra) was also noticed by the Apex Court in the said case.
After considering the evolution of law as laid down by the Hon'ble Supreme Court, so far as it relates to recognition of the rights or role of a private person or injured in a criminal proceedings, let us now examine the provisions as contained in Cr. PC amended from time to time.
20. Section 2(q) of the Code of Criminal procedure provides for the definition of Pleader, which reads as under:
"2(q).- "Pleader", when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other persons appointed with the permission of the Court to act in such proceeding:'
21. In the Code of Criminal Procedure (Amendment) Act, 2008 brought into effect from 31st December 2009, definition of victim has been introduced under section 2(wa) of the Cr.PC. which reads as under:
"2(wa)- "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir."
An amendment has also been made in the nature of a proviso to section 24(8) by the same Amendment Act. The amended section reads as under:
"24. Public Prosecutors.-(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:
[Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section]"
22. Legislature has further brought about a significant change under section 372 of the Code relating to an appeal from a judgement or order of the Criminal Court. By the same amendment, victim has been conferred the right to prefer an appeal against any order passed by the Court acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation. Section 372 as amended, reads as under:
"372. No appeal to lie unless otherwise provided.- No appeal shall lie from any judgement or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court."
23. The aforesaid amendments clearly indicate the progressive recognition of the rights and role of a victim in a criminal case as also locus granted to him to engage an advocate of his choice for prosecution under section 24(8). The express provision under which the entire issue has been argued appear at section 301 of the Code which reads as under:
"301. Appearance by Public Prosecutor._(1) 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.
(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."
24. Under section 301(1) of the Cr.PC., the Public Prosecutor or Assistant Public Prosecutor has been conferred the authority to appear before the Court and plead in any court in a case without any written authority where that case is under inquiry, trial or appeal. Sub-section 2 thereof however provides a locus to a private person to instruct the pleader to prosecute any person in any Court. But such a role of a private person is imposed with curb that it is only the Public or Assistant Public Prosecutor in-charge of the case who shall conduct the prosecution. The pleader so instructed, shall act only under the directions of Public Prosecutor or Assistant Public Prosecutor. The first part of section 301(2) of the Cr.P.C therefore grants locus to the private person to prosecute any person in any court under the directions of the Public Prosecutor or Assistant Public Prosecutor. However, if he wants to file a written argument, the same can be done with the permission of the court after the evidence is closed. At para-12 of the judgement rendered in the case of Shiv Kumar (Supra), the Hon'ble Supreme Court has clearly observed that section 301(2) impose a curb upon the counsel of the private party and limits his role to act in the court during such prosecution under the directions of the Public Prosecutor. The only other liberty which he can possibly exercise is to submit the written argument after closure of the evidence in the trial, but that too, only under the Court's permission to do so.
25. In case of Hari Shankar Rastogi vs. Girdhari Sharma and another [(1978) 2 SCC 165], the petitioner appeared in person and sought permission to be represented by another person who was not an advocate falling within the definition of section 2-A of the Advocates' Act, 1961. The Hon'ble Court presided over by Hon'ble Mr. Justice V.R. Krishna Iyer, J considering the provisions of sections 29 and 30(1) of the Advocates' Act, 1961 and provisions of sections 2(q), 302, 303 and 304 of the Criminal Procedure Code, held that anyone who is not an advocate, cannot, as of right, force himself into the Court and claim to plead for another. Permission may, however, be granted by this Court taking the justice of the situation and several other factors into consideration for such non professional representation. The Hon'ble Court held that this approach accords with the policy of the Criminal Procedure Code as spelt out in section 2(q). A pleader, by definition, includes any person other than one authorised by law to practise in a court if he is appointed with the permission of the Court, to act in a particular proceeding. Court's power may well be exercised in regulating audience before it in tune with the spirit of section 2(q) of the Code. Opinion of the Hon'ble Supreme Court is contained in para-2 of the report, which is quoted hereunder:
"2. Advocates are entitled, as of right, to practise in this Court [Section 30(i) of the Advocates Act, 1961]. But, this privilege cannot be claimed, as of right, by anyone else. While it is true that Article 19 of the Constitution guarantees the freedom to practise any profession, it is open to the State to make a law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right. The Advocates Act, by Section 29, provides for such a reasonable restriction, namely, that the only class of persons entitled to practise the profession of law shall be advocates. Even so, is it not open to a party who is unable for some reason or other to present his case adequately to seek the help of another person in this behalf? To negative such a plea may be to deny justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of a sophisticated nature. That is precisely why legislative policy has taken care to provide for such contingencies. Sections 302, 303 and 304 of the Criminal Procedure Code are indicative of the policy of the legislature. I do not think that in this Court we should totally shut out representation by any person other than the party himself in situations where an advocate is not appearing for the party. A comprehensive programme of free legal services is, in a sense, a serious obligation of the State if the rule of law were to receive vitality in its observance. Until then, parties may appear through advocates, and where they are not represented by one such, through some chosen friend. Such other person cannot practise the profession of habitually representing parties in court. If a non-advocate specialises in practising in court, professionally he will be violating the text of the interdict in the Advocates Act. I cannot allow him to do so. Nevertheless, it is open to a person, who is party to a proceeding, to get himself represented by a non-advocate in a particular instance or case. Practising a profession means something very different from representing some friend or relation on one occasion or in one case or on a few occasions or in a few cases. In the present instance, permission is sought for representation through a non-advocate. It is absolutely clear that anyone who is not an advocate, cannot, as of right, force himself into this Court and claim to plead for another. Permission may, however, be granted by this Court taking the justice of the situation and several other factors into consideration for such non-professional representation. This approach accords with the policy of the Criminal Procedure Code (I am concerned with a criminal proceeding here) as spelt out in Section 2(q). A pleader, by definition, includes any person other than one authorised by law to practise in a court if he is appointed with the permission of the court, to act in a particular proceeding. This Court's power may well be exercised in regulating audience before it in tune with the spirit of Section 2(q) of the Code."
The said judgement has also been referred to by the Hon'ble Supreme Court in the recent judgement in the case of C. Venkatachalam vs. Ajitkumar C. Shah and others [(2011) 9 SCC 707] where the issue before the Apex Court was in relation to appearance of authorised agent before the Consumer Forums under the provisions of Consumer Forum created under the Consumer Protection Act, 1986. The Hon'ble Court in the said case, upon perusal of the provisions of the Act of 1986, came to the conclusion that the parties have been given an option to either appear personally or be represented by duly authorised agents. Every advocate appointed by the party is an agent. However, the agent as contemplated under the State and Central Rules need not necessarily be an advocate. While interpreting the provisions of the Act and the State and Central Rules, the Hon'ble Court advances interpretation as discernible from the legislative intent and object of the consumer protection Act 1986 which is intended to help the consumer to vindicate his right without being burdened with intricate procedures and heavy professional fees. It is found that such provisions did not violate any provisions of the Advocates' Act. At para-53 to 60 of such report, on dealing with the importance of gathering legislative intention while interpreting the provisions of law, the Hon'ble Court held that it is bounded duty and obligation of the Court to carefully discern the legislative intention and articulate the same.
26. The inference that is obvious from the reading of the aforesaid provisions is that appearance of a private person or a pleader can always be regulated by the Court in any such criminal proceeding in accord with the policy of the criminal procedure code
27. In the scheme of Criminal Procedure Code as also reflected after the amendment introduced with effect from 31st December 2009, there appears to be clear distinction when a legal right has been specifically conferred upon the victim under the amended proviso to section 372 of the Code to prefer an appeal against the judgement of acquittal or conviction of the accused for a lesser offence or on imposition of inadequate compensation when no such clear right earlier existed for the victim. Under the provisions of section 378(4) of the code, in cases of acquittal in a case instituted upon complaint, the complainant could make an application for grant of special leave to appeal from the order of acquittal and only upon grant of such leave, he could prefer such an appeal before the High Court. Under the provisions of the Code specifically section 378 of the Cr. PC, in case of acquittal it was only the District Magistrate who can direct the Public Prosecutor to present the appeal to the Court of Sessions from the order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. While under section 378(1)(b), the State Government may, in any case, direct the Public Prosecutor to present the appeal to the High Court from the Original or Appellate Order of acquittal passed by any Court other than the HighCourt or the order of acquittal passed by the Court of Sessions in revision. Therefore, on one hand, specific legal right has been created in favour of the victim giving him a right to appeal under the amended proviso to section 372 of the Code on the other hand under the amended proviso to section 24 of the Code, introduced with effect from 31st December 2009, the Court may permit the victim to engage an advocate of his choice to assist the prosecution. The aforesaid provision therefore confers a discretion upon the Court to permit the victim to engage an advocate of his choice. The victim though has a locus to engage an advocate / pleader in a criminal proceeding, but it is subject to the permission granted by the Court and cannot be extended to mean that the victim has been conferred a legal right which can be exercised. Under section 301(2) of the Cr.P.C also which exists from before and as has been interpreted by the judgement of the Hon'ble Supreme Court in the case of Shiv Kumar (Supra), as also in the case of J.K. International (Supra), a counsel engaged by a private party has a limited role to act in the Court during such prosecution under the direction of the Public Prosecutor. The only other liberty which he can possibly exercise is to submit written argument after the closure of the evidence in the trial, but that can be done only if the Court permits him to do so. Therefore, on conjoint reading of the amended proviso to Sections 24(8) and 301(2) of the Code, the legislative intention is evident that a victim or a private person has locus to appear through a pleader to assist the prosecution in any case where inquiry, trial or appeal is pending in any court. The expression 'Court' would mean all the Courts of Criminal Jurisdiction. Therefore, in a proceeding initiated for grant of bail under section 439 Cr.P.C. which are in the nature of special powers upon the High Court and the Court of Sessions, a Private person or the victim has a locus to appear and oppose the prayer for grant of bail by the accused. However, it is within the discretion of the Court to permit appearance of a victim or a private person in order to assist the prosecution. The Court, in exercise of such discretion, may have several factors in mind including as to whether the presence of a private person would provide further assistance to the Public Prosecutor to effectively assist the Court in arriving at a proper and fair conclusion; that there may be attendant facts which may not be in the knowledge of the Public Prosecutor which may be brought to the notice of the Court through such assistance. Whenever a discretionary power is conferred upon the Court of law consciously by the Legislature, it is rather wise and advisable not to limit that power in a straight jacket formula, but leave it to the Court concerned to exercise such power in a judicious manner in the facts and circumstances of the case. [See (2003) 6 SCC 675 Surya Dev Rai vs. Ram Chander Rai and others, para-39].
28. Upon survey of the law evolved through the pronouncements of the Hon'ble Supreme Court, the legislative Changes which has progressively occurred towards the recognition of the role and rights of the victim in a criminal trial, and the discussions made herein above, it can be said that the victim or a private person has the locus to appear in a proceeding initiated at the instance of the accused in any case before any Court where it is a affected party, however subject to the discretion conferred upon the Court, to be exercised in the manner and to the extent, as may be required in the facts and circumstances of a particular case. "Locus Standi" has been defined in the Blacks Law Dictionary as "the right to bring an action or to be heard in a given forum." As per the Law Lexicon by P Ramanatha Aiyar "Locus Standi" signifies a right of appearance in a Court of Justice or right to be heard or place of standing. Such a Locus Standi confers on a person only if he has a interest in the matter. The victim / private person in that sense does have a interest in the matter since it is the ultimate sufferer of such crime. However, u/s 301(2) of the code, the legislature has consciously regulated it in the manner that the Pleader so instructed by a private person, shall act in any such case under the directions of the Public Prosecutor only and not as an absolute legal right of independent appearance before the Court. The aforesaid provision is therefore in clear distinction from the specific provision u/s 372 proviso of the code conferring upon the victim a distinct legal right to prefer an appeal which was not earlier available to him under the unamended section 372. The conscious distinction made by the legislature in the wording of the two provisions is apparent and with a definite legislative purpose and intent. If such a view is taken that the victim / private party or the informant has legal right to appear in a proceeding initiated at the instance of the accused under the provisions of Section 301(2) of the Cr.PC read with Section 24(8) proviso, it would mean that the victim / private party is a necessary party in every such proceeding and as a matter of right, is entitled to notice before the proceedings are heard and decided. Such a course of Interpretation would amount to creating a specific legal right which the legislature never intended to confer upon the victim / private person. Such interpretation is neither desirable nor appropriate for a Court of law while undertaking the task of interpreting the specific language used in the Statute keeping into mind the Statute as a whole and the aim and object which it seeks to achieve.
29. At the same time, it also has to be held that a locus standi has been consciously conferred by the Legislature upon the victim / private person to appear in a proceeding initiated at the instance of the accused under the amended proviso to section 24(8) and section 301(2) of the Code in recognition of its role as the ultimate victim / sufferer of such crime. Such locus standi can be exercised by a private person / victim through a Pleader in the manner as prescribed under the rules of procedure for appearance prevalent in the Court such as through a vakalatnama. However, the legislature supremely conscious of the requirement of role of a Public Prosecutor in the impartial and fair conduct of the trial, not guided by the urge to somehow reach to conviction of an accused, rather enabling the Court to reach to the truth of the matter, has definitely limited the role of a victim or a private person, so far as its assistance in the matter is concerned. The second question of law under reference is accordingly answered in the aforesaid manner. In view of the aforesaid exposition of law, the view expressed by the learned Division Bench to the contrary is not the correct law.
Let the matter appear before the learned Single Judge for considering the same on merits on 28th July 2014 at the top of the list.
(Aparesh Kumar Singh, J) (Prashant Kumar, J) ................. (Prashant Kumar, J) (Amitav K. Gupta, J) .................. (Amitav K. Gupta, J) Ranjeet
concerned government has to make amendment to cpc with respect to Section 148(a) of CPC., and extend it's applicability in revenue court proceedings is also because revenue courts are also can pass ex-parte interim order in the appeal which affected the right of the person.
ReplyDelete