Bar & Bench () · SYNOPSIS This special leave ... application under Section 294 CrPC to receive some more documents to prove their case. This was allowed by the Trial Court, and the

SYNOPSIS

This special leave petition has been preferred against the judgment

and final order of the Hon’ble High Court of Judicature at Hyderabad

for the State of Telangana and the State of Andhra Pradesh, dated

25.10.2017 in Criminal Petition No. 7108 of 2017, wherein the

Hon’ble High Court, on the judicial side, allowed the Criminal

Petition filed by the de facto complainant, thereby, allowing the de

facto complainant to conduct the prosecution independently, by

engaging an advocate for the purpose of cross examination of all

defence witnesses and arguments etc. in C.C. No. 993/2014 on the

file of the Hon’ble Metropolitan Magistrate, Cyberabad at Malkajgiri.

The Petitioner-High Court seeks to challenge the impugned

judgment dated 25.10.2017 to the extent that:

a) it holds that the even in a Sessions Case a victim can be

permitted to conduct prosecution, either independently or in

addition to the Public Prosecutor, by putting up further

questions in evidence during trial or in any enquiry or other

proceedings, including in any application to file counters or

objections and participate, in view of the proviso to Section

24(8) of the Code of Criminal Procedure, 1973, despite the

provisions of Section 225 of CrPC and

b) it directed the Registry to issue circular instructions to

all the Subordinate Courts within the Jurisdiction of the

Petitioner- High Court to the same effect.

Bar & Bench (www.barandbench.com)

The relevant paragraph of the impugned judgment dated

25.10.2017, of the Hon’ble High Court of Hyderabad for the

State of Telangana and the State of Andhra Pradesh, reads as

follows:

“8. Thus the word prosecution thereby means proceeding either by way of indictment or information in criminal Courts to put the offender upon trial. The proviso to section 24(8) of the amended Act No.5 of 2009 of Cr.P.C seeks that the Court may permit the victim to engage an advocate

of his or her choice to assist the prosecution. Here to assist the prosecution does not mean mere assisting the Public Prosecutor under Section 301 Cr.P.C., but for conducting the prosecution itself by the victim or defacto complainant in person or through private advocate of his or her choice either under Section 24(8) proviso or under Section 302 Cr.P.C. as the case may be, but for to clarify further that irrespective of what is stated in Sections 225 & 226 Cr.P.C., even in a Sessions case, a victim can be permitted under Section 24(8) proviso of Cr.P.C. to conduct prosecution either independently or in addition to the public prosecutor by putting further questions in evidence during trial or in any enquiry or other proceedings including in any application to file counters or objections and participate”

……

(emphasis supplied) The Hon’ble High Court was also pleased to mark a copy of the

impugned judgment to the Registry, directing as follows:

“To. 1…

2…

3..

4. The Hon’ble Registrar General, High Court of Judicature at Hyderabad.


(The Registry is directed to issue circular to all subordinate Courts within the jurisdiction of this Court to follow the expression particularly the observations in Paras 8 to 12)

5. The Hon’ble Registrar (Judicial), the High Court of Judicature at Hyderabad.

(The Registry is directed to issue circular to all subordinate Courts within the jurisdiction of this Court to follow the expression particularly the observations in Paras 8 to 12) 6……..”

It is submitted that the aforementioned directions of the Hon’ble

High Court, with respect to prosecutions conducted before a

Court of Sessions, are not inconsonance with provisions of

Section 225 of Cr.P.C, and the judgments of this Hon’ble Court.

Section 225 of the Code of Criminal Procedure reads as follows:

“Section 225 - Trial to be conducted by Public Prosecutor

In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.

This Hon’ble Court has explained in the case of Shiv Kumar v.

Hukam Chand and Anr reported in (1999) 7 SCC 467, the

dangers of allowing the role of the Public Prosecutor to shrink

in cases before the Court of Sessions. The relevant portion of

the judgment has been extracted hereinbelow, for the

convenience of this Hon’ble Court:

“13. 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.

14. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by any one 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 force and make it available to the accused. Even if the defence counsel overlooked it, 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 frees 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.

15. 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 he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a 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.”

(emphasis supplied)

This Hon’ble Court has observed regarding the limited role of the

informant or a private party in a Court of Sessions in the case of

Dhariwal Industries Ltd. vs. Kishore Wadhwani and Ors .

reported in (2016)10SCC378. The relevant portion of the judgment

reads as follows:

18. We have already explained the distinction between Sections 301 and 302 Code of Criminal Procedure. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by him is required to act under the directions of public prosecutor. As far as Section 302 Code of Criminal Procedure is concerned, power is conferred on the Magistrate to grant permission to the complainant to conduct the prosecution independently.

(emphasis supplied)

Hence, this SLP.

LIST OF DATES


24.2.2010

The Respondent No. 1- Mahabunnisa Begum

filed an FIR No. 75/2010 in the Police Station

Neredmet, District Cyberabad, under Section

3 and 4 of the Dowry Prohibition Act, of 1961

and Section 498 A of IPC, alleging dowry

demands and harassment at the hand of the

Respondent Nos. 3 and 4 and other members

of their family. The concerned FIR bearing No.

75 of 2010 has been annexed herewith and

marked as Annexure P-1 (Pgs. ).

Charges were framed under Section 3 and 4

of the Dowry Prohibition Act, and under

Section 498 A of the Indian Penal Code

P W 1 to P W 4 were examined by accused

persons and the Statement of the accused

under Section 313 of CrPC was recorded.

The Respondents/ accused persons filed an

application under Section 294 CrPC to receive

some more documents to prove their case.

This was allowed by the Trial Court, and the

matter was posted for Defence Evidence.


2.9.2014 An application was filed by the Respondent

No. 1/ De facto Complainant under Section

301(2) of CrPC bearing Crl M.P No 1961/2014

to permit her to engage a private advocate for

prosecution assistance.

8.09.2014 The Ld. Trial Court, i.e., the Court of the

Metropolitan Magistrate Cyberabad at

Malkajgiri, allowed this application filed by the

Respondent No. 1, allowing her to assist the

A.P.P by filing written arguments.

1.6.2017 That the Respondent No. 1 filed a Petition Crl.

M.P No. 505 of 2017 in the C.C. No. 993/2014

before the Ld. Trial Court under Section 302

and 24(8) of CrPC. The relevant portion of this

Petition has been extracted below for the

convenience of this Hon’ble Court:

“As the Learned A.P.P is over burdened with prosecution works of Four Courts and in this case both the sides are relying upon voluminous documents, have to submit specifically on all those documents and detailed cross examination is necessary in all aspects….

Therefore in the above stated circumstances, the Petitioner/ De facto

complainant prays this Hon’ble Court may be pleased to permit her to conduct the prosecution independently through a private advocate for cross examination of all defense witnesses and arguments and all other proceedings in C.C. No.


993 of 2014 on the file of this Hon’ble Court in the interests of justice.”

A copy of the Petition, dated 1.6.2017, bearing

Crl. M.P No. 505 of 2017 in the C.C. No.

993/2014, filed in the Court of the Metropolitan

Magistrate, Cyberabad, at Malkajgiri, has

been annexed herewith and marked as

Annexure P-2 (Pgs. ).

8.6.2017 A counter was filed in the Crl. M. P No. 505 of

2017 by the Respondent-accused persons

before the Ld. Trial Court. A copy of this

Counter Affidavit, dated 8.6.2017, filed by the

Respondents/ Accused persons before the

Court of the Ld. Metropolitan Magistrate,

Cyberabad, at Malkajgiri has been annexed

herewith and marked as Annexure P-3 (Pgs.

)

A Counter was filed on behalf of the

Prosecution in the Crl. M. P No. 505 of 2017,

before the Ld. Trial Court, which stated as

follows:

“It further submits that S. 301 (2) of Cr.P.C states that “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 pleaser so instructed shall act therein under the directions of the Public Prosecutor or the Assistant Public Prosecutor...”

It is further submitted that as admitted by the Petitioner in the present Petition that earlier petition filed by the defacto complainant under Section 301(2) Cr. P.C vide Crl. MP No. 1961 of 2014 dated 2.9.2014 to permit her to engage private advocate for prosecution assistance was allowed by the Hon’ble Court. This Hon’ble Court allowed the Petition to the extent of assisting the Learned A.P.P to file Written Arguments by order dated 8.9.2014.

It is further submitted that in view of S.

301(2) of Cr.P.C the prosecution can be conducted only by Public Prosecutor or Assistant Public Prosecutor. Private Pleader, if permitted shall act under the directions of the Prosecutor and may submit written arguments after the evidence is closed in the case.

It is further submitted that in view of the above, the private counsel has no locus to plead on behalf of the prosecution and conduct the case and hence the present Petition has no maintainability and is liable to be dismissed.

…..” A copy of the Counter filed on behalf of the

Prosecution in the Crl. M. P No. 505 of 2017

before the Ld. Metropolitan Magistrate,

Cyberabad, at Malkajgiri has been annexed

herewith and marked as Annexure P-4 (Pgs.

).

24.7.2017 That the Ld. Metropolitan Magistrate,

Cyberabad, at Malkajgiri, partly allowed the


Crl. M. P No. 505 of 2017, in the following

words:

“6. POINT: “Whether Petitioner is entitled to appoint

an advocate on her behalf”

7. As seen from the averments of the

Petition petitioner wants to appoint an advocate on her behalf to conduct prosecution. Section 302 Cr.P.C clearly provides that the victim may be permitted to conduct prosecution which means an advocate also.

8. However the Petitioner also stated that she is entitled to engage an advocate as per Section 24(8) provisio of Cr. P.C but the said Section is with regard to appointment of Addl.

Prosecutor and Public Prosecutor but not with regard to permitting them to engage an advocate before the Magistrate Courts. The said proviso Section 24(8) is regard to High Court and District Judge Courts but not to Magistrate Court and the relevant provision is Section 25 Cr. P C where there is no such proviso to engage an advocate by the victim.

The Petitioner also relied on certain

citations in support of her case but the

same is related to Section 24(8) Cr.P.C as such there are not relevant to this case. Therefore, in view of the above discussion this court holds to allow petitioner to engage an advocate on her behalf to assist prosecution at every state of proceedings. However, the Petitioner shall not step into the shoes of the prosecution and shall not conduct the prosecution independently.

Accordingly, petition is allowed in part.”

A copy of the order dated 24.7.2017, passed

by the Ld. Metropolitan Magistrate,

Cyberabad, at Malkajgiri, in the Crl. M.P No.


505/2017 is annexed herewith and marked

as Annexure P-5 (Pgs. )

9.8.2017

Aggrieved the Respondent No. 1 filed a

Petition under Section 482 of Cr.P.C to

quash the order dated 24.7.2017 in Crl. M.P

No. 505 of 2017 in CC No. 993/2014 on the

file of the Ld. Metropolitan Magistrate,

Cyberabad at Malkajgiri. A copy of the

Petition Crl. P 7108 of 2017, filed by the

Respondent No. 1 on 9.8.2017, before the

Hon’ble High Court of Judicature at

Hyderabad for the State of Telangana and for

the State of Andhra Pradesh has been

annexed herewith and marked as Annexure

P-6 (Pgs. ).

25.10.2017 The Hon’ble High Court, vide the impugned

judgment, allowed the Criminal Petition No.

7108 of 2017, setting aside the order of the

Lower Court, and permitting the de facto

complainant/ Respondent No. 1 to engage

a private advocate and conduct the

prosecution by further examination of any

witness in addition to what APP conducts,

if any.


The Hon’ble High Court, vide the impugned

judgment, also held as follows:

8. Thus the word prosecution thereby means proceeding either by way of indictment or information in criminal

Courts to put the offender upon trial. The proviso to section 24(8) of the amended Act No.5 of 2009 of Cr.P.C seeks that the Court may permit the victim to engage an advocate of his or her choice to assist the prosecution. Here to assist the prosecution does not mean mere assisting the Public Prosecutor under Section 301 Cr.P.C., but for conducting the prosecution itself by the victim or defacto complainant in person or through private advocate of his or her

choice either under Section 24(8) proviso or under Section 302 Cr.P.C. as the case may be, but for to clarify further that irrespective of what is stated in Sections 225 & 226 Cr.P.C., even in a Sessions case, a victim can be permitted under Section 24(8) proviso of Cr.P.C. to conduct prosecution either independently or in addition to the public prosecutor by putting further questions in evidence during trial or in any enquiry or other proceedings including in any application to file counters or objections and participate”

…… To. 1…

2…

3..

4. The Hon’ble Registrar General,

High Court of Judicature at Hyderabad.

(The Registry is directed to issue

circular to all subordinate Courts within the jurisdiction of this Court


to follow the expression particularly the observations in Paras 8 to 12)

5. The Hon’ble Registrar (Judicial),

the High Court of Judicature at Hyderabad.

(The Registry is directed to issue

circular to all subordinate Courts within the jurisdiction of this Court to follow the expression particularly the observations in Paras 8 to 12)

6… …..”

Hence, this SLP.


IN THE SUPREME COURT OF INDIA

UNDER ORDER XXII RULE 2 (1)

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

SPECIAL LEAVE PETITION (Crl) NO. /2017

POSITION OF THE PARTIES IN

BEFORE HON’BLE HIGH COURT

BEFORE THIS HON’BLE COURT

1

The High Court of

Judicature at Hyderabad

For the State of Telangana

and the State of

Andhra Pradesh

Through its Registrar

General

Not a party

Petitioner

Versus

1. Smt. Mahabunnisa Begum

w/o Mr. Mohammed Basha

Aged about 32 years Occ. House Wife, R/o H. No. 33-86/4, S.V.O Colony

R.K Puram, Secundrabad

Petitioner Proforma Respondent-

1

2. The State of Telangana

Through Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, High Court Premises, Hyderabad

Respondent No.

1

Proforma

Respondent No.2


TO,

THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH:

1. This special leave petition has been preferred against the

judgment and final order of the Hon’ble High Court of

Judicature at Hyderabad for the State of Telangana and

the State of Andhra Pradesh, dated 25.10.2017 in Criminal

Petition No. 7108 of 2017, wherein the Hon’ble High Court,

on the judicial side, allowed the Criminal Petition filed by

the de facto complainant.

1A. That no LPA or Writ Appeal challenging the impugned the

judgment dated 25.10.2017 has been filed by the

Petitioner before any Hon’ble High Court. That while the

Petitioner in the present SLP was not a party before the

Hon’ble High Court, the Petitioner is affected by the

3. Mr. Mohammed Basha

s/o K. Dastagir, R/o H.No. 1-5-239/2 Plot No. 34, Srinagar Colony, Old Alwal, Secunderabad.

Respondent No.

2.

Proforma Respondent No.3

4. Mahboob Bee, w/o Muzaffar Ali, R/o H.No 1-5-239/ 2, Plot No. 34, Srinagar Colony, Old Alwal, Secunderabad.

Respondent No.

3

Proforma Respondent

No.4


directions given to the registry of the Petitioner-High Court

in the impugned judgment. An application for permission

to file an SLP has been annexed along the present SLP.

2. QUESTIONS OF LAW

A) Whether a de facto complainant has the locus to appoint

a counsel and plead on behalf of the prosecution in a case

to be tried before a Sessions Court?

B) Whether the Hon’ble High Court, in the impugned

judgment, failed to appreciate the provisions of Section

225 of the Code of Criminal Procedure which mandates

that in every trial before a Court of Session, the prosecution

shall be conducted by a Public Prosecutor?

C) Whether the Hon’ble High Court, in the impugned

judgment, erred in reading down provisions of Section

225 and Section 226 of the Code of Criminal

Procedure, when the same should have been

harmoniously constructed with the provisions of

Section 24(8) of the Cr.P.C?

D) Whether the Hon’ble High Court, in the impugned

judgment, failed to appreciate the decisions of this

Hon’ble Court, in Shiv Kumar v. Hukam Chand and

Anr reported in (1999) 7 SCC 467 and in Dhariwal

Industries Ltd. vs. Kishore Wadhwani and Ors .

reported in (2016)10SCC378, which held that the role of

the informant or the private party is limited during the


prosecution of a case in a Court of Session, and that the

scheme of the Code and the legislative intent make it

manifestly clear that prosecution in a Sessions court

cannot be conducted by anyone other than the Public

Prosecutor?

E) Whether, prosecution in a Sessions case can be

conducted by anyone other than the Public

Prosecutor?

F) Whether the Hon’ble High Court, vide the impugned

judgment, failed to appreciate that Section 302 of the

Cr.P.C only pertains to conduct of cases before a

magistrate, and the absence of an analogous provision

with respect to cases before a Court of Sessions makes

the legislative intent clear?

3. DECLARATION UNDER SECTION 3 (2)

That the petitioner states that no other petition seeking leave

to appeal has been filed by them against the impugned

judgment and final order.

4. DECLARATION IN TERMS OF RULE 5:

The annexures P-1 to P-10 produced along with the special

leave petition are true copies of the pleadings/documents

which formed parts of the record of the case in the Courts

below against whose order the leave to appeal is sought for in

this petition.


5. GROUNDS

5.1 The Brief Facts of the Case:

i. On 24.2.2010 The Respondent No. 1- Mahabunnisa

Begum filed an FIR No. 75/2010 in the Police Station

Neredmet, District Cyberabad, under Section 3 and 4 of

the Dowry Prohibition Act, of 1961 and Section 498 A of

IPC, alleging dowry demands and harassment at the hand

of the Respondent Nos. 3 and 4 and other members of

their family.

ii. In this regard a charge-sheet was filed and charges

were framed under Section 3 and 4 of the Dowry

Prohibition Act, and under Section 498 A of the Indian

Penal Code. P W 1 to P W 4 were examined by accused

persons and the Statement of the accused under Section

313 of CrPC was recorded. Thereafter, the Respondents/

accused persons filed an application under Section 294

CrPC to receive some more documents to prove their

case. This was allowed by the Trial Court, and the matter

was posted for Defence Evidence.

iii. On 2.9.2014 an application was filed by the

Respondent No. 1/ De facto Complainant under Section

301(2) of CrPC bearing Crl M.P No 1961/2014 to permit

her to engage a private advocate for prosecution

assistance. Section 301 of the CrPC reads as follows:

“Section 301 - Appearance by public prosecutors


(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 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.”

iv. On 8.9.2014 the Ld. Trial Court, i.e., the Court of the

Metropolitan Magistrate Cyberabad at Malkajgiri, allowed

this application filed by the Respondent No. 1, allowing her

to assist the A.P.P by filing written arguments.

v. That on 1.6.2017, the Respondent No. 1 filed a Petition

Crl. M.P No. 505 of 2017 in the C.C. No. 993/2014 before

the Ld. Trial Court under Section 302 and 24(8) of CrPC.

The relevant portion of this Petition has been extracted

below for the convenience of this Hon’ble Court:

“As the Learned A.P.P is over burdened with prosecution works of Four Courts and in this case both the sides are relying upon voluminous documents, have to submit specifically on all those documents and detailed cross examination is necessary in all aspects…

Therefore, in the above stated circumstances, the Petitioner/ De facto complainant prays this

Hon’ble Court may be pleased to permit her to conduct the prosecution independently through a private advocate for cross examination of all defense witnesses and arguments and all other proceedings in C.C. No. 993 of 2014 on the file of this Hon’ble Court in the interests of justice.”


vi. The contents of Section 24(8) and Section 302 of the

Code of Criminal Procedure have been extracted below

for the convenience of this Hon’ble Court:

“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.

****

“Section 302 - Permission to conduct prosecution

(1) Any Magistrate inquiring into or trying a case

may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.”

vii. A counter was filed in the Crl. M. P No. 505 of 2017 by

the Respondent-accused persons before the Ld. Trial


Court. The prosecution also filed a Counter in the Crl. M.P

No. 505 of 2017, wherein it stated as follows:

“It further submits that S. 301 (2) of Cr.P.C states that “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 pleaser so instructed shall act therein under the directions of the Public Prosecutor or the Assistant Public

Prosecutor...”

It is further submitted that as admitted by the Petitioner in the present Petition that earlier petition filed by the defacto complainant under Section 301(2) Cr. P.C vide Crl. MP No. 1961 of 2014 dated 2.9.2014 to permit her to engage private advocate for prosecution assistance was allowed by the Hon’ble Court. This Hon’ble Court allowed the Petition to the extent of assisting the Learned A.P.P to file Written Arguments by order dated 8.9.2014.

It is further submitted that in view of S. 301(2) of Cr.P.C

the prosecution can be conducted only by Public Prosecutor or Assistant Public Prosecutor. Private Pleader, if permitted shall act under the directions of the Prosecutor and may submit written arguments after the evidence is closed in the case.

It is further submitted that in view of the above, the

private counsel has no locus to plead on behalf of the prosecution and conduct the case and hence the present Petition has no maintainability and is liable to be dismissed.

…..”

viii. That on 24.7.2017 the Ld. Metropolitan Magistrate,

Cyberabad, at Malkajgiri, partly allowed the Crl. M. P No.

505 of 2017, in the following words:

“6. POINT: “Whether Petitioner is entitled to appoint an advocate on her behalf”

7. As seen from the averments of the Petition petitioner

wants to appoint an advocate on her behalf to conduct

prosecution. Section 302 Cr.P.C clearly provides that


the victim may be permitted to conduct prosecution which means an advocate also.

8. However the Petitioner also stated that she is entitled to engage an advocate as per Section 24(8) provisio of Cr. P.C but the said Section is with regard to appointment of Addl. Prosecutor and Public Prosecutor

but not with regard to permitting them to engage an advocate before the Magistrate Courts. The said proviso Section 24(8) is regard to High Court and District Judge Courts but not to Magistrate Court and the relevant provision is Section 25 Cr. P C where there is no such proviso to engage an advocate by the victim.

The Petitioner also relied on certain citations in support of her case but the same is related to Section 24(8) Cr.P.C as such there are not relevant to this case. Therefore, in view of the above discussion this court holds to allow petitioner to engage an advocate on her behalf to assist prosecution at every state of

proceedings. However, the Petitioner shall not step into the shoes of the prosecution and shall not conduct the prosecution independently.

Accordingly, petition is allowed in part.”

ix. Aggrieved by the this order the Respondent No. 1

filed a Petition under Section 482 of Cr.P.C to quash

the order dated 24.7.2017 in Crl. M.P No. 505 of 2017

in CC No. 993/2014 on the file of the Ld. Metropolitan

Magistrate, Cyberabad at Malkajgiri.

x. The Hon’ble The Hon’ble High Court, vide the

impugned judgment, allowed the Criminal Petition No.

7108 of 2017, setting aside the order of the Lower

Court, and permitting the de facto complainant/

Respondent No. 1 to engage a private advocate and

conduct the prosecution by further examination of any

witness in addition to what APP conducts, if any.


xi. The Hon’ble High Court, vide the impugned

judgment, also held as follows:

8. Thus the word prosecution thereby means proceeding either by way of indictment or information in criminal Courts to put the offender

upon trial. The proviso to section 24(8) of the amended Act No.5 of 2009 of Cr.P.C seeks that the Court may permit the victim to engage an advocate of his or her choice to assist the prosecution. Here to assist the prosecution does not mean mere assisting the Public Prosecutor under Section 301 Cr.P.C., but for conducting the prosecution itself by the victim or defacto complainant in person or through private advocate of his or her choice either under Section 24(8) proviso or under Section 302 Cr.P.C. as the case may be, but for to clarify further that irrespective of what is stated in Sections 225 & 226 Cr.P.C., even in a Sessions case, a victim can be permitted under Section 24(8) proviso of Cr.P.C. to conduct prosecution either independently or in addition to the public prosecutor by putting further questions in evidence during trial or in any enquiry or other proceedings including in any application to file counters or objections and participate”

……

(emphasis supplied)

xii. The Hon’ble High Court was also pleased to mark a

copy of the impugned judgment to the Registry,

directing as follows:

“To.

1…

2…

3..

4. The Hon’ble Registrar General, High Court of Judicature at Hyderabad.

(The Registry is directed to issue circular to all subordinate Courts within the jurisdiction of this Court to follow the


expression particularly the observations in Paras 8 to 12)

5. The Hon’ble Registrar (Judicial), the High Court of Judicature at Hyderabad.

(The Registry is directed to issue circular to all subordinate Courts within the jurisdiction of this Court to follow the expression particularly the observations in Paras 8 to 12) 6……..”

xiii. That when this matter was placed before the

Administrative Committee of Hon’ble Judges of the High

Court of Judicature at Hyderabad, for the State of

Telangana and the State of Andhra Pradesh, the

committee resolved to file an SLP against the impugned

judgment to the extent that it directed that even in a

Sessions Case a victim can be permitted to conduct

prosecution, either independently or in addition to the

Public Prosecutor, by putting up further questions in

evidence during trial or in any enquiry or other

proceedings, including in any application to file counters

or objections and participate, in view of the proviso to

Section 24(8) of the Code of Criminal Procedure, 1973,

despite the provisions of Section 225 of Cr.P.C, and to the

extent that the impugned judgment directed the Registry

to issue circular instructions to all the Subordinate Courts

within the Jurisdiction of the Petitioner- High Court to the

same effect.


xiv. This Hon’ble Court has explained in the case of Shiv

Kumar v. Hukam Chand and Anr reported in (1999)

7 SCC 467, the dangers of allowing the role of the

Public Prosecutor to shrink in cases before the Court

of Sessions.

xv. Further, this Hon’ble Court has made observations on

the limited role of the informant or a private party in a Court

of Sessions in the case of Dhariwal Industries Ltd. vs.

Kishore Wadhwani and Ors. reported in

(2016)10SCC378. Hence, this SLP is being filed on the

following grounds:

5.2 BECAUSE the de facto complainant has no locus to

appoint a counsel and plead on behalf of the prosecution

in a case to be tried before a Sessions Court, in view of

the provisions of Section 225 and Section 226 of the Code

of Criminal Procedure. The Sections have been extracted

hereinbelow for the convenience of this Hon’ble Court:

“Section 225 - Trial to be conducted by Public Prosecutor

In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.

……

Section 226 - Opening case for prosecution

When the Accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought


against the accused and stating by what evidence he proposes to prove the guilt of the accused.”

5.3 Because a Public Prosecutor being effaced from the

conduct of a prosecution, or his role being entirely taken

over by a private counsel, may cause prejudice to the

rights of the accused to have a free and fair trial. Hence,

the provisions of the aforementioned Sections make it

clear that the legislative mandate is for the conduct of a

prosecution to be in the hands of the Public Prosecutor,

in a case before the Sessions Court.

5.4 Because Section 302 of the Cr.P.C only pertains to

conduct of cases before a magistrate, and the absence

of an analogous provision with respect to cases before

a Court of Sessions makes the legislative intent clear.

While anyone can conduct a prosecution in a case

before a Magistrate, the statute does not permit this in

a case before the Sessions Court. In the latter, any

counsel engaged by the complainant, will only assist

the prosecution. An examination of the scope of

Section 301 and Section 302 of the Cr. P.C, with

Section 24(8) of the Cr.P.C would further illustrate the

different scope of the role of the complainant or victim

in cases before the Sessions Court and Magistrate. A

chart has been provided below, for the convenience of

this Hon’ble Court:

Section 301 Cr.P.C Section 302 Cr.P.C Section 24(8) of the Cr.P.C


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 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.

(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.

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.]

5.5 BECAUSE this Hon’ble Court has remarked on the

dangers of allowing the role of the Public Prosecutor to

shrink in prosecutions before the Court of Sessions. This

Hon’ble Court held as follows in the case of Shiv Kumar

v. Hukam Chand and Anr reported in (1999) 7 SCC

467:

“13. 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.

14. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by any one 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 force and make it available to the accused. Even if the defence counsel overlooked it,

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 frees 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.

15. 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 he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a 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.”

(emphasis supplied)

5.6 BECAUSE this Hon’ble Court has in the case of Dhariwal

Industries Ltd. vs. Kishore Wadhwani and Ors.

reported in (2016)10SCC378, observed on the limited

role of the informant or the private party in a case in a

Court of Session, in the following words:

18. We have already explained the distinction between Sections 301 and 302 Code of Criminal Procedure. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by him is required to act under the directions of public prosecutor. As far as Section 302 Code of Criminal Procedure is concerned, power is conferred on the Magistrate to grant permission to the complainant to conduct the

prosecution independently.

(emphasis supplied)

5.7 BECAUSE the Hon’ble High Court, in the impugned

judgment, did not appreciate the aforementioned

decisions of this Hon’ble Court, and read down the

provisions of Section 225 and Section 226 of the Code of

Criminal Procedure. It is submitted that the role

contemplated for the Public Prosecutor in prosecutions

before a Court of Sessions, is well defined, and the

rationale behind it is the right of accused persons to a free

and fair Trial. In these circumstances, a reading down of

the provisions of Section 225 and 226, in the manner seen

in the impugned judgment would have serious


implications for Trials Conducted all over the country, and

may prejudice the rights of accused persons.

6. GROUNDS FOR INTERIM RELIEF

a) That the directions in the impugned judgment pertaining to

permitting a victim to conduct the prosecution, even in

Sessions cases, either independently or in addition to the

Public Prosecutor, by putting up further questions in

evidence during trial or in any enquiry or other proceedings,

including in any application to file counters or objections and

participate, in view of the proviso to Section 24(8) of the

Code of Criminal Procedure, 1973, despite the provisions

of Section 225 of the Cr.P.C, will have a wide ranging

impact on Trials Conducted across the State, particularly if

circulars to that effect are sent to all subordinate courts

within the jurisdiction of the High Court.

b) Because if these directions are finally set aside by this

Hon’ble Court, grave prejudice and or irreparable may have

been caused to accused persons in the interim.

c) Because the balance of convenience lies in favour of

granting an interim stay to the impugned judgment to the

extent of directions regarding the conduct of prosecutions

before a Court of Sessions.

d) Because prima facie the directions in the impugned

judgment pertaining to the conduct of prosecutions in

sessions cases, are contrary to the law laid down by this


Hon’ble Court in the cases of Dhariwal Industries Ltd.

vs. Kishore Wadhwani and Ors. reported in

(2016)10SCC378 and Shiv Kumar v. Hukam Chand

and Anr reported in (1999) 7 SCC 467.

7. MAIN PRAYER

It is most respectfully prayed that this Hon’ble Court may

graciously be pleased to:

(A) Grant Special Leave to appeal against the judgment and

order dated 25.10.2017 passed by the Hon’ble High Court

of Judicature at Hyderabad for the State of Telangana and

the State of Andhra Pradesh, in the Criminal Petition No.

7108 of 2017.

(B) Pass any other order and /or direction as this Hon’ble

Court may deem fit and proper be passed in favour of the

respondent and against the petitioner in the interest of

justice.

8. PRAYER FOR INTERIM RELIEF

It is most respectfully prayed that this Hon’ble Court may

graciously be pleased to:

a) Grant stay of the observations in the judgment and order

dated 25.10.2017 passed by the Hon’ble High Court of

Judicature at Hyderabad for the State of Telangana and the

State of Andhra Pradesh, in the Criminal Petition No. 7108

of 2017, to the extent that it permits the victim to conduct

the prosecution, even in Sessions cases, either


independently or in addition to the Public Prosecutor, by

putting up further questions in evidence during trial or in any

enquiry or other proceedings, including in any application to

file counters or objections and participate, in view of the

proviso to Section 24(8) of the Code of Criminal Procedure,

1973, contrary to the provisions of Section 225 of the Cr.P.

C and;

b) Pass any other order.

DRAWN BY:

Srishti Agnihotri

(ADVOCATE)

PLACE: NEW DELHI FILED BY:

[ANTIHA SHENOY] Advocate for the petitioners

DRAWN ON: 24.12.2017 FILED ON: .12.2017


Bar & Bench () · SYNOPSIS This special leave ... application under Section 294 CrPC to receive some more documents to prove their case. This was allowed by the Trial Court, and the

Documents