Petition No 1740 of 1984
For Directions IN Criminal Appeal No 356 of 1983 413 And Criminal Misc
Petition No 2217 of 1984 For Directions IN Criminal Appeal No 356 of 1983 Ram Jethmalani Ms Rani Jethmalani Naresh Jethmalani and J Wad for the Petitioner
AK Sen M N Shroff and Dalveer Bhandari for the Respondent
The Order of the Court was delivered by DESAI J Consequent upon the order made by a Constitution Bench of this Court on February 16 1984 in the Judgment rendered in 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Case No 24 of 1982 and Special Case No 383 pending in the Court of the Special Judge Greater Bombay Shri RB Sule were withdrawn and stood transferred to the High Court of Bombay
In 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 SN Khatri 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 up 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 question of procedure to be adopted by the learned Judge in the trial of the two cases and who should be in charge 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 this 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 raised reads as under Therefore Special Case No 24 of 1982 and Special Case No 383 pending in the Court of Special Judge 414 Greater Bombay Shri RB Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court
In the penultimate paragraph of the judgment while allowing the appeal this Court directed as under This appeal accordingly succeeds and is allowed
The order and decision of the learned Special Judge Shri RB Sule dated July 25 1983 discharging the accused in Special Case No 24 of 1982 and Special Case No 383 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged
 Reading two directions together it clearly emerges that the learned Judge has to hold trial according to the procedure prescribed in Chapter XIX B ie the procedure prescribed in Secs
244 to 247 of the Code of Criminal Procedure 1973
To be precise the learned Judge has to try the case according to the procedure prescribed for cases instituted otherwise than on police report by Magistrate
This position is clear and unambiguous in view of the fact that this Court while allowing the appeal was hearing amongst others Transferred Case No 347 of 1983 being the Criminal Revision Application No 354 of 1983 on the file of the High Court of the Judicature at Bombay against the order of the learned Special Judge Shri RB Sule discharging the accused
If the criminal revision application was not with drawn to this Court the High Court while hearing criminal revision application could have under Sec
407 Code of Criminal Procedure 1973 transferred the Special case from which criminal revision application arose to itself for trial and in such a situation the High Court under Sec
407 8 Code of Criminal Procedure 1973 would have to follow the same procedure which the Court of Special Judge would have followed if the case would not have been so transferred
It is not in dispute that the learned Special Judge while holding the trial was required to follow the procedure prescribed by the Code of Criminal Procedure 1973 for trial of warrant cases by Magistrates and in the facts of this case the procedure would be in respect of cases instituted otherwise than on police report
The trial was to proceed further from the stage when the accused was discharged
This in our opinion is obvious and needs no further clarification
81 of the Criminal Law Amendment Act 1952 as interpreted by this Court in Criminal 415 Appeal No 247 of 1983 decided on February 16 1984 makes this position unambiguous and abundantly clear
The clarification in respect of the first point read with the judgment rendered in Criminal Appeal No 247 of 1983 in which Sec 8 3 of the Criminal Law Amendment Act 1952 had come in for interpretation it follows as a corollary that if the cognizance of an offence is taken under Sec
81 of the Criminal Law Amendment Act 1952 and the trial has to be held according to the procedure prescribed therein under Sec 8 3 the learned advocate engaged by the complainant to conduct the prosecution will be deemed to be a public prosecutor
In such a situation there is no question of the State appointed public prosecutor to conduct the prosecution
It is therefore clarified which to some extent may appear tautologous in view of the aforementioned judgment that it would be for the complainant to decide who would be the learned advocate incharge of the prosecution and the advocate so appointed would be deemed to be a public prosecutor
Dr Singhvi who appeared for the respondent accused submitted that in the guise of a petition for clarification it is a covert attempt to forestall or foreclose the decision on the aforementioned two points which are pending before the learned Judge before whom both the cases are pending
There was no question of deciding the aforementioned two points afresh because the answers to them are implicit in the judgments referred to above
Dr Singhvi had nothing to say when invited by the Court about the clarification which the Court my offer in respect of the aforementioned two questions
He left us in no doubt that he does not wish to make any submission on the question of clarification in respect of the aforementioned two questions
We note that the Government of Maharashtra has entered appearance before us through Shri AK Sen and Shri MN Shroff but no submission were made by them
Mr Jethmalani learned counsel for the complainant wanted this Court to consider prayers Nos
c and d in the misc
petition which we consider for the disposal of the misc
petitions as irrelevant and we do not propose to deal with the same in these petitions
In sum the clarification is that the learned Judge in the trial 416 of the two cases pending before him has to follow the procedure prescribed in Secs
244 to 247 both inclusive included in Chapter XIX B of the Code of Criminal Procedure 1973
It is for the complainant to decide who should be his learned advocate incharge of the prosecution and there is no question of entrusting the trial of the two cases to a State appointed public prosecutor


Summary:
In compliance with directions given by the Constitution Bench of the Supreme Court the Bombay High Court withdrew to itself Special Case No 24 of 1982 and Special Case No 583 pending in the Court of the Special Judge Greater Bombay and assigned the said two cases to Mr Justice SN Khatri a sitting Judge of the said court
When the cases were taken up for hearing two preliminary contentions were raised as to whether State should appoint a Public Prosecutor to conduct the trial and what should be the procedure to be followed and from what stage of the trial
Hence the two applications for classification
The Court  HELD 1
The learned Judge has to hold the trial according to the procedure prescribed in chapter XIX B ie the procedure prescribed in section 244 to 247 both inclusive of the Code of Criminal Procedure
To be precise the learned Judge has to try the case according to the procedure prescribed
for cases instituted otherwise than on police report by Magistrate
The trial was to proceed from the stage when the accused was discharged
414D E 2
If the cognizance of an offence is taken under section 8  of the criminal law Amendment Act 1952 and the trial has to be held according to the procedure prescribed therein under section 83 the learned advocate engaged by the complainant to conduct the prosecution will be deemed to be a public prosecutor
In such a situation there is no question of the State appointed Public Prosecutor to conduct the prosecution
It is for the complainant to decide who should be his learned advocate in charge of the Prosecution
415B C