LexSHIV KUMAR versus HUKAM CHAND AND ANR.
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... SHIV KUMAR v. HUKAM CHAND AND ANR. AUGUST 30, 1999 [S.P. KURDUKAR, K. T. THOMAS AND N. SANTOSH HEGDE, JJ.] Code of Criminal Procedure, 1973-Sections 225, 301 and 302- Prosecution by private pleaders-Whether permissible-Appellant applied A B for permission to his Advocate to conduct prosecution of the case-Consent C of Public Prosecutor obtained-Held, private pleaders cannot conduct prosecution except before a Magistrate even with the consent of the Public Prosecutor. Code of Criminal Procedure, 1973-Sections 24 and 225-Public Prosecutor-Role of D The Appellant married his sister to son of respondent no. 1. Appellant's sister died of burn injuries four months afLr the marriage and on appellant's complaint, a case was registered against respondent no. 1 under Sections 302 and 120-B 1.P.C. After the completion of the investigation, the police filed a charge sheet against respondent no. 1 for commission of offence E under Section 304-B of the LP.C. During the trial, appellant applied to the Sessions Court for allowing his Advocate to conduct the prosecution of the case under the directions of the Public Prosecutor. The said application was also endorsed by the Public Prosecutor. F The Sessions Court allowed the application of the appellant The revision filed by respondent no.1 before tbe High Court was allowed and order of the Sessions Court was set aside. Hence, the appellant filed the present appeal. Dismissing the appeal, the Court HELD: 1.1. From the scheme of the Code of Criminal Procedure, 1973 the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by any one other than the Public Prosecutor. G 81 [86-EJ H 82 SUPREME COURT REPORTS (1999] SUPP. 2 S.C.R. A 1.2. 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 i~, perhaps, comparable with that of a junior Advocate conducting the case of his senior in a court. The private counsel is to act B 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 of Criminal Procedure a dead letter. (87-A-B] C 2.1. 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 conducted 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 D 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 ifthe 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. [86-F-G] E F 2.2. A private counsel, if allowed 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. [86-H] Queen-Empress v. Durga, ILR (1894) All. 84; Medichetty Ramakistiah & Ors. v. The State of Andhra Pradesh, AIR (1959) AP 659 and In re: Bhupalli Malliah & Ors., AIR (1959) AP 477, relied on. 3. In the Magistrate's court anybody (except a police officer below the G rank oflnspector) can conduct prosecution, if the Magistrate permits him to do so. ·once the permission is granted the person concerned ca~ appoint any counsel to conduct the prosecution on his behalf in the Magistrate's court [85-F] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I 048 H of 1998. - S. KUMAR v. HUKAM CHAND [THOMAS, J.] 83 From the Judgment and Order dated 28.11.96 of the Punjab and Haryana A High Court in Criminal Revision. No. 739 of 1996. B.S. Mor, M.S. Dahiya and Ms. Kusum Singh for the Appellant. C.S. Ashri and Mahabir Singh for the Respo
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