LexR. S. NAYAK versus A.R. ANTULAY
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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R. S. NAYAK
v.
A.R. ANTULA Y
April 5, 1984
(D.A. DESAI, R.S. PATHAK, 0. °CHINNAPPA REDDY,. A P, SEN AND
V. BALAKRISHNA BRAD!, JJ.] .
Crlmf 1ja/ ,Appel/ate -Jurisdi'ctioft-Transfer of a pending criminal trial
from the court oi Sessions to the· High Caurt-Proc.edure to be followed iS the
same as prescribed in chapte.- XIX !Fof the Code of Criminal Procedure-If
the Cognizance of an offence is taken upder section B{J} of the Criminal' Law
{Ame11dment) Aci,- J.952-State need not- appoint Q Public Prosecutor--The.
comp}ail.zant's ad-JoCate will the Pu.b(iC Prosecutor.
In comPiianc: with directions given by the_ Constitution Bench of.the
Supreme Court, tho Bombay High Court withdrew to itself Special Case
No, 24 of 1982 and Special Case No. S/83 pending in the Court of the
Special Judge, Greater Bombay and assi8ned the said two c8ses to Mr.
!1Jstice S.N. Khatri a sitting Judge of the said court. When ·the cases·
were t~ken up for heariagJ two prelimioarY. contentions were raised ·as to
wbeihel'. State should appOint a. PU:blic ProseCutOr to conduct the tdal
and· what should be the 'procedure to bo followed and from what stage_
.Of the trial. Hence the twO applications for classification. The court;
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· HELD: 1. The learned Judge has to .hoLd the trial according to tho
·procedure prescribed in chapter X(X B i.e,, !le . procedure prescribed' in
section 244 to 247 (botb inclusive) of"the Code of Criminil Procedure. ·
To be precise, the Jearned J\idge has .to try thC-case according to tbe
proc_edµre pr(iscribed for cas~s insti•uted ctherwise than on police report
by. Magistrate, ·The trial was to proceed from the ·stage when the acused
was discharged. [ 4140-B]
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2.
If the cognizance of an olfcace is taken under section s(;) of
tlie criminal law (Amendment) Act, 1952, and the trial has t.o be held
acdording to: the procOdure prescribed 'thereicl, under
sec~iOn 8(3), the
learned advocate engaged by the complainant to coaduct the prosecution
will be Cteem~d tO be a Public ·prosecutoc, Io such a situation, there is
DO questiOn. of the State appointed Public Prosecutor to
conduct~' the
prosecution. It is for ~the complaiila1lt io decide who should be his
learned advocate in charge of tho Prosecution.
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CRIMINAL JUR\sDiCT\ON :.Criminal Misc. Petition No. 1740 of·
1984.
(For Directions)
IN
(Crimin'll Appeal No; 356 of 1983)
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it .. s. NA.YA.K v. A.:tt A.NWLA.Y (Desai, J.)
And
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(Criminal Misc. Petition No. 22rl7of1984)
(For Directions)
IN
(Criminal Appeal No. 356 of .1983)
Ram Jethmalani, Ms. 1 Rani Jethmalani, Naresh Jethmalani
and J. Wad for the Petitioner.
A. K. Sen, M. N. Shroff and Dalveer Bhandari for the
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Respondent.
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The Order of the Court wa.s delivered by
DESAI,· J. Consequent upon the order made by a Constitution
Bench <!f this Court on February 16, 1984 in the Judgment
rendered iu Criminal Appeal No. 356 of 1983 and Transferred
Case No. 347 of.'1983 alongwith Transferred Case No. 348 of
1983, ,Special Case ·No. 24 of 1982 and Special Case No. 3/83
pending in the Court of the Special Judge, Greater Bombay (Shri
R.B. Sule) were withdrawn and sto9d transferred to the High
Court of Bombay. Jn compliance with the direction. given in the
same judgment, the learned Chief Justice of the High Court of
Bombay assigned both the cases to Mr. Justice S.N. F;,hatri, .a
sitting Judge of the High Court. The learned Judge called upon
the parties to appear before him on March· 12, 1984. When the
cases were taken UI> for hearing, ·certain ·preliminary objections
·were raised on behalf of the accused which we were .told have
been dealt with by the learned Judge in his order dated March 16,
1984. In respect of two issues further consideration was postponed.
These issues turn upon the q.uestion of procedure to be adopted
by the learned Judge in the trial of the two cases and who should
. · be .incharge of the prosecution. In our opinion, if the judgment ·
of this Court was read with care and precision, these two questions
would have hardly arisen. However, two misc. petitions were
moved in tliis Court for clarification of the judgment so as to
.thwart avoidable delay in the trial of cases.
The operative portion of the judgment which has a bearing on
the question i:afsed reads as under:
"Therefore, Special Case No. 24 of 1982 .and Special
Case No. 3/83 pending in the CourtExcerpt shown. Read the full judgment & AI analysis in Lexace.