IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 Crl.Rev.Pet.No. 1474 of 2008() ------------------------------ CRMP.1075/2007 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY C.C.NO.85 OF 2006 ON THE FILE OF THE J.F.C.M-1, SULTHAN BATHERY .................... REVN. PETITIONER: PETITIONER ---------------------------------------------------------- AKHILA, W/O. ANIL KUMAR, KALLANCHIRA HOUSE, KARANI, KANIYAMPATTA. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENTS: RESPONDENT ------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *2. ANIL KUMAR K.R.,AGED 38 YEARS, S/O.K.G.RAMASWAMY, KALLANCHIRA HOUSE, KARANI P.O., VARADOOR, WAYANAD - 673 121. 3. SRI.K.G.RAMASWAMY , AGED 66 YEARS, KALLANCHIRA HOUSE, KARANI P.O., VARADOOR, WAYANAD - 673 121. 4. SRI.ANAND K.R. AGED 36 YEARS, S/O.K.G.RAMASWAMY, KALLANCHIRA HOUSE, KARANI P.O., VARADOOR, WAYANAD - 673 121. 2 5. KAMALAM M.V., W/O.RAMASWAMY, KALLANCHIRA HOUSE, KARANI P.O., VARADOOR, WAYANAD - 673 121. 6 SUNITHA K.R., AGED 40 YEARS, D/O.K.G.RAMASWAMY, KALLANCHIRA HOUSE, KARANI P.O., VARADOOR, WAYANAD - 673 121. * ADDL. RESPONDENTS 2 TO 6 IMPLEADED AS PER ORDER DATED 5.08.08 IN CRL.M.A.NO.6159/08 BY PUBLIC PROSECUTOR SRI.C.M.NAZAR SRI.M.P.ASHOK KUMAR FOR R2 TO 6 SRI.P.C.GOPINATH FOR R2 TO 6 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.1474 of 2008 = = = = = = = = = = = = = = Dated this the 5th day of August, 2008 ORDER The revision petitioner is the de facto complainant in C.C.No.85 of 2006 on the file of the J.F.C.M-1, Sulthan Bathery. It is a prosecution at the instance of the revision petitioner and charged by the Menangadi Police for an offence punishable under Sections 498A read with 34 IPC. The 5 accused persons in the said prosecution are the husband, husband's father, husband's brother, husband's mother and husband's sister of the revision petitioner. The accused persons constitute all the members of the matrimonial home. The order impugned in this revision is the order dated 18.03.08 passed by the J.F.C.M-1, Sulthan Bathery dismissing the petitioner's application filed as CMP No.1075 of 2007 under Section 302 IPC seeking permission to engage a private lawyer to conduct prosecution in the above case. 2. I heard the learned counsel for the petitioner as well as the learned counsel appearing for the accused persons. 3. The marriage between the revision petitioner and the 1st accused took place on 18.5.2003. No issues have been born in the Crl.R.P.No.1474/08 2 wedlock. The post marital life of the revision petitioner and the 1st accused lasted only for four months. The 1st accused who is employed abroad in Canada went back to Canada on 25.9.03. Even before that on 18.9.03 the revision petition bid farewell to her matrimonial home. The 1st accused/husband in the meanwhile filed an application for divorce before the Family Court alleging cruelty on the part of the revision petitioner. Pending this application the revision petitioner filed the present complaint, initially as a private complaint before the Magistrate, which was forwarded to the Police under Section 156(3) Cr.P.C resulting in the registration of a crime and the eventual filing of the charge sheet. The Family Court as per order dated 26.03.08 granted divorce to the 1st accused on the ground of cruelty by the revision petitioner. The divorce petition was contested by the revision petitioner persisting a stand that she wants to live with her husband. It is a contradiction to say that the wife wants to live with her husband and at the same time does not spare any opportunity to file petitions against him and drive him from pillar to post. 4. After the cognizance was taken when the case was about to become ripe for trial, the revision petitioner filed the above petition seeking the engagement of a private lawyer under Section Crl.R.P.No.1474/08 3 302 Cr.P.C. The said application was vehemently opposed by the accused persons and the learned Magistrate dismissed the said application as per the impugned order. 5. The learned counsel for the revision petitioner submitted as follows:- The accused are represented by a counsel of their choice. If so, it is only fair that the revision petitioner is also represented by a counsel of her choice so that there will be even-handed justice in the case. The A.P.P. in charge of the case has his own limitations, since he will be tied down to the Police papers and unlike a pleader engaged by the petitioner, the A.P.P will not exhibit any activism to elucidate more information through the prosecution witnesses. That is the reason why the petitioner wanted her case to be conducted by a counsel of her own choice, so that he will not confine himself to the version of the Police, particularly when the petitioner has serious allegations against the officers who were conducting the investigation of the case at various stages. 6. As observed earlier, the post marital co-habitation between the revision petitioner and the 1st accused lasted only for four months and exactly on the expiry of the said four months she bid farewell to her matrimonial home. Thereafter, there was no Crl.R.P.No.1474/08 4 love lost between the connubial partners, who were fighting against each other. In the meanwhile, the family court also granted a decree of divorce to the 1st accused/husband on the ground of cruelty by the petitioner/wife. An appeal is pending against the same before this Court. It is in the backdrop of these proceedings that one has to assess the bona fides of the petitioner. It is pertinent to remember that the petitioner has no grievance against the A.P.P in charge of the prosecution. She has no case that the APP will not deliver the goods or that the APP will not conduct the case in an impartial manner which is expected of a Public Prosecutor. The very fact that she wants to engage a private lawyer of her choice shows that she does not want him to conduct the case in an impartial and dispassionate manner. As observed by this Court in (Babu V.State of Kerala) 1989 KLT 164, the pleader engaged by a complainant will be more anxious to secure a conviction by any means instead of being fair to the accused as well, which is the hallmark of an impartial prosecutor. It is pertinent to note that the request was not for assisting the prosecution under Section 301(2) Cr.P.C. When the services of a private counsel are permitted to be availed of under Section 302 Cr.P.C, the Public Prosecutor fades into insignificance and Crl.R.P.No.1474/08 5 thereafter he has no role to play. Such a situation can be allowed to prevail only if there are allegations which would enable the court to come to a conclusion that at the hands of the Public Prosecutor, the de facto complainant and persons who are similarly situate will not get justice. The learned Magistrate who is the judge of the situation was not inclined to allow the prosecution to be conducted by a pleader of the petitioner's choice noticing that there is an A.P.P available to conduct the prosecution. Having regard to the pugnacious deposition of the matrimonial partners particularly that of the wife, I have no hesitation to conclude that the request for engaging a private lawyer was not actuated by a desire to do justice to both sides but to get an edge over the defence. I see no ground to interfere with the order passed by the learned Magistrate. This Crl.R.P. is accordingly dismissed. I am sure that the learned Magistrate will make an earnest endeavour to dispose of the case expeditiously. Dated this the 5th day of August, 2008. V. RAMKUMAR, JUDGE sj