1 criapln2458-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2458 OF 2011 IN CRIMINAL APPLICATION NO.1967/2011. 1] Annasaheb Sawaleram Teke .. APPLICANT Vs 1] Dr.Vinayanand Patil & Ors .. RESPONDENTS ... Shri. V.D.Sapkal,Adv. for applicant. Shri R.N.Dhorde,Adv.for respondents Shri B.J.Sonawane,APP for R-State. ... CORAM : T.V.NALAWADE,J. DATE : 28/06/2011 ORAL ORDER: 1] This application is filed by complainant for permission to address the Court to oppose application bearing No.1967/11 filed for anticipatory bail. As the advocate for complainant insisted for permission to advance arguments, independent of the right of Public Prosecutor, he was allowed to argue in Application No.2958/11. The advocate has relied on the case of Single Judge of this Court reported 2 criapln2458-11 in 2009 All MR [cri] 687 Vinay Potdar V/s State of Maha & Anr. Both sides are heard on the point involved in the present proceeding. 2] This Court has carefully gone through the case cited supra. Learned Single Judge of this Court has relied on observations made by Apex Court and Madras High Court in some cases like [1] 2001 S.C.C. [Cri] 547 [J.K.International V/s State (Government of NCT of Delhi and others] and [2] 1986 Cri.L.J.1540 [P.S.Saravanabhavanandam and another V/s S. Murugaiyyan and another. The learned Single Judge has deferred with the view expressed by Delhi High Court in the case reported in 1991 Cri.L.J. 1774 [Smt.Indu Bala & Ors. V/s Delhi Administration & Ors.] The sum and substance of the observations made by learned Single Judge can be found at para no.13 of the case. It runs as follows : “13] When an application for anticipatory bail is considered, the police may not place all factual details before the Court as the investigation in most of such cases is at a preliminary stage. Therefore, some role can be played by the complainant by pointing out factual aspects. In the circumstances, it is not possible to hold that the first informant or the complainant cannot be heard in an application for anticipatory bail. When the complainant appears before the Court in the course of hearing of an application for grant of anticipatory bail, the Court is bound to hear him. But the said right cannot be allowed to be exercised in a manner which will delay the disposal of an application for anticipatory bail. The delay in disposal of such application may adversely affect the investigation. Therefore, the 3 criapln2458-11 right which can be spelt out in favour of the first informant or the complainant is of making oral submissions for pointing out the factual aspects of the case during the course of hearing of an application for anticipatory bail before the Court of Sessions. The said right is to be exercised by the complainant either by himself or through his Counsel. “ 3] The aforesaid observations made by learned Judge show that the learned Single Judge has expressed opinion that there is the right to the complainant to address the Court in proceeding filed for anticipatory bail, but right cannot be allowed to be exercised in a manner which will delay the disposal of such application. It is observed that such delay may adversely affect the investigation. Thus, the learned Single Judge has not observed that there is absolute right as such in this regard. However, it appears that some confusion is there due to which the advocate for complainant insisted for exercising such right. In view of this confusion, this Court holds that the relevant provisions of Constitution of India and Cr.P.C. and also origin of the law regarding such proceedings need to be seen. 4] Article 21 of the Constitution of India is included in the Constitution of India to recognize and enforce the natural right of an individual with regard to his life and personal liberty. Article 21 runs as follows : 4 criapln2458-11 “21] Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.” 5] It cannot be disputed that the object behind Article 21 is to prevent encroachment upon the personal liberty by Executive. In the case reported in AIR 1978 S.C. 597 [Smt.Maneka Gandhi V/s Union of India and another] and catena of cases subsequently decided by Apex Court, it is laid down by the Apex Court that Article 21 has imposed a limitation upon the law making and in view of this Article, the procedure which can be created to curtail right to liberty in public interest must be reasonable, fair and just. In the case reported in AIR (39) 1952 S.C. 106 [Naranjan Singh Nathawan and others V/s State of Punjab]. It is further, laid down by the Apex court that if the procedure as expected in Maneka Gandhi’s case is laid down, it must be strictly followed and it must not be departed from to the disadvantage of the person affected. This implies that when the question of interpretation of any such provision arises, Courts must use power to interpret the provision in such a way that the provision is amenable to Article 21. In the case reported in AIR 1960 S.C. 866 [R.P.Kapur V/s State of Punjab] the Apex Court has made it clear that if the Cr.P.C. is exhaustive on a point, no Court is permitted to invoke power to defeat the provisions of the Cr.P.C. Thus, from all the angles, it becomes clear that Courts are required to see that if 5 criapln2458-11 reasonable, fair and just procedure is created to curtail the liberty in public interest, that procedure is adhered to. In the case reported in AIR 1979 S.C. 1360 [Hssainara khatoon and others V/s Home Secretary, State of Bihar] , the Apex court has discussed the meaning of fairness of the procedure. It is laid down that if the procedural law does not provide for speedy trial of the case, it impairs such fairness of procedure. In view of the importance of the right recognized in Article 21, it cannot be disputed that the procedural fairness which involves speedy trial, needs to be observed at every stage of criminal proceeding right from the starting of the investigation. 6] In the background of the aforesaid constitutional provision and its interpretation done by Apex Court, the provisions of Cr.P.C. and particularly Sections 24[1], 24[3], 24[7], 24[8], 209[c], 225,474,301,302,437,438,439 need to be seen. Section 24 [1] of Cr.P.C. reads as follows : : “[24] Public Prosecutors – [1] For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. 24[3] For every district, the State Government shall appoint a Public 6 criapln2458-11 Prosecutor and may also appoint one or more Addi tonal Public Prosecutors for the district : Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. 24[7] A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub- section (1) or sub-section (2) or sub section (3) or sub section (6), only if he has been in practice as an advocate for not less than sever years. 24[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.” 7] These provisions show that it is the duty of the State to appoint a public prosecutor and one or more Additional Public Prosecutors for conducting cases in High Court and Sessions Court. There may be any prosecution, appeal or any proceeding and they are to be conducted by Public Prosecutor on behalf of the Central or State Government in Sessions Court and High Court. This provision shows that only the person who has practiced for 7 years or more can be appointed for such post. Sub Section 8 provides that unless such 7 criapln2458-11 person has a standing of 10 years, or more, he cannot be appointed as Special prosecutor. Section 24(8) shows the Court may permit the victim to engage an advocate of his choice to assist the prosecution. 8] In the case reported in (1994) 4 S.C.C. 602 [Hitendra Vishnu Thakur and others V/s State of Maharashtra and others] the Apex Court has laid down that public prosecutor is not a part of investigating agency. It is observed that as he is independent statutory authority and his duty to the Court is to be fair, independent and unbiased in his views. In the case reported in AIR 1991 S.C. 537 [Kumari Shrilekha Vidyarthi etc. V/s State of U.P. and others], it is laid down that the public prosecutor must exercise power in the interest of administration of justice and for public purposes. It is observed that public prosecutor is expected to present a complete picture and not to be partial. He has to be fair to both the sides while presenting a case. Thus, separate statutory machinery is created for conducting prosecution in aforesaid provision and it needs to be presumed that it id done in public interest. 9] Section 209 (c) of Cr.P. C. shows that when J.M.F.C. commits the case to the Court of Sessions, he is required to notify to public prosecutor of the commitment of the case. Section 225 and Section 474 have laid down that in Sessions Court and the High Court, the prosecution shall be conducted by public prosecutor. Section 24 of Cr.P.C. also needs to be kept in mind in this regard. 8 criapln2458-11 10] Section 225 of Cr.P.C. reads as under : “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. 11] Section 301 of Cr.P.C. reads as under : “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 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 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.” 12] This provision shows that the counsel for complainant can file written arguments with the permission of the Court. In the case reported in [1999] 7 S.C.C. 467 [Shivkumar V/s Hukumchand], the Apex Court has made observations regarding role of private counsel for a prosecution. It is observed that the role of public prosecutor will shrink to mere supervisory role and the trial would become a combat 9 criapln2458-11 between private party, complainant and accused if counsel of complainant is allowed to represent the case of the complainant. It is further observed that in that case, the legislative mandate given in Section 225 of Cr.P.C. will become a dead letter. 13] In Section 302 of Cr.P.C., discretionary power is given to Magistrate to allow prosecution to be conducted by a private party or by counsel of private party. If Sections 301 and 302 are compared, it can be said that the legislators have prepared scheme in such a way that in offences which are less serious in nature and which are triable by the Courts at lower level like Magistrates, a private party can be allowed to prosecute the matter and that can be done only after giving of permission by Magistrate. The provisions show that when the cases are more serious in nature, they are made triable by Courts of higher level like Sessions Court and High Court, for conducting prosecution in the Courts at higher level, separate statutory authority like the office of public prosecutor is created. Thus the matter is considered from 2 different angles. The provisions of Section 190 and Sections 200 to 204 of Cr.P.C. show that private party can initiate criminal proceedings in serious cases, cognizable matters. However, in that regard also, there are some limitations and in some cases separate procedure is laid down for taking cognizance of such serious matters also. Thus, a private complaint can be filed for offences which are triable by Court of Sessions but as soon as the case is committed 10 criapln2458-11 to the Court of Sessions, such right comes to an end. 14] If the provisions regarding bail and anticipatory bail are considered, it can be said that in serious matters, only public prosecutor is expected to act for prosecution side. Section 437 (1) [4th] proviso shows that when the offence involved is punishable with imprisonment of 7 years, or more, notice is required to be issued to public prosecutor. Similar provision is there in Section 439 of Cr.P.C. We are concerned with Section 438 of Cr.P.C. in the present matter. This Section shows that before final hearing of anticipatory bail application, the Court is bound to give notice of 7 days to public prosecutor with a view to give reasonable opportunity of being heard. Section 438(1) (b) of Cr.P.C. further shows that public prosecutor can request the Court to compel the accused to remain present in the Court at the time of final hearing. 15] The aforesaid provisions are exhaustive in nature and they directly relate to the point involved in the present matter. These provisions show that the role of private party is limited with regard to conduct of prosecution in High Court and Sessions Court and even in serious cases in which the punishment provided is imprisonment for 7 years and more [including life imprisonment and death sentence]. In view of the aforesaid provisions and the rights of accused discussed already, it can be said that the private party, complainant or his 11 criapln2458-11 counsel cannot be allowed to conduct the prosecution in High Court and Sessions Court by giving go-bye to public prosecutor. The provisions referred to above show that the limit prescribed as against the complainant is applicable to the proceedings filed for bail and anticipatory bail. 16] As the learned Single Judge has referred 2 cases of Apex Court and one case of Madras High Court, the observations made in those cases can be now seen. In the case reported in 1986 Cr.L.J. 1540 [P.S.Saravanabhavanandam and another V/s S. Murugaiyyan and another] Madras High Court has referred the case of AIR 1984 S.C. 718 [A.R.Antulay V/s Ramdas Sriniwas Nayak.]. The Apex court has observed in Antuley’s case as follows : “It is well recognized principle of criminal jurisprudence that any one can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant by necessary implication the general principle gets excluded by such statutory provision. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save 12 criapln2458-11 and except specific statutory exception.” The Madras High Court has also referred the case reported in 1966 S.C. page 911 [Thakur Ram and others V/s State of Bihar] In this case, the Apex Court has observed as under : “Barring a few exception, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book”. 17] Both aforesaid cases of the Apex Court are about rights of the private parties with regard to initiation of criminal proceedings. When a private party is aggrieved due to crime, the party is also interested in knowing result of the investigation. Sections 154, 190 and 200 to 204 can also be referred. When final report is filed by police, after investigating the matter registered on the basis of report given by private party, the party may be interested in knowing the result of the investigation. In the case of J.K.International cited supra, which is referred by Single Judge of this Court, the Apex Court has discussed this right of private party. For upholding this right of private party, the Apex Court has referred Sections 301 and 302 of Cr.P.C. Both the aforesaid provisions need to be read together. 13 criapln2458-11 18] In the case of J.K.International, the Apex court was considering the Appeal filed against decision of High Court. A Writ Petition was filed before High Court for quashing criminal proceeding instituted on police report. Original complainant had applied for impleading him as a party in the High Court. This petition was rejected by High Court. The Apex court has made observations with regard to the right of the private party, first informant in that regard at para nos. 9 and 10 as follows : “9] The scheme envisaged in the Code of Criminal Procedure [for short “the Code”] indicates that a person who is aggrieved by the offence committee, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. Even the fact that the Court had taken cognizance of the offence is not sufficient to debar him from reaching the Court for ventilating his grievance. Even in the Sessions Court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial. This can be discerned from Section 301(2) of the Code which reads thus : “301 (2)- 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 pleader so instructed shall act therein under the 14 criapln2458-11 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. 10] The said provision falls within the Chapter titled “General Provisions as to Inquiries and Trials”. When such a role is permitted to be played by a private person, though it is a limited role, even in the Sessions Courts, that is enough to show that the private person, if he is aggrieved, is not wiped off from the proceedings in the criminal court merely because the case was charge sheeted by the police. It has to be stated further, that the court is given power to permit even such private person to submit his written arguments in the court including the Sessions Court. If he submits any such written arguments the Court has a duty to consider such arguments before taking a decision.” 19] In the case of J.K. International, the Apex Court has also discussed the difference between Sections 301 and 302 of Cr.P.C. It is observed by the Apex Court that amplitude given in Section 302 is limited to Courts of Magistrates as the right of such private individual to conduct the prosecution in Sessions Court is very much restricted and is made subject to the control of public prosecutor [para 12 of the reported case]. 20] The case of J.K. International shows that the Apex Court was mainly considering the rights of first informant to be heard when the report under Section 173 of Cr.P.C. is filed before magistrate. The 15 criapln2458-11 Apex Court has referred the case reported in AIR 1985 S.C. 1285 [Bhagwant Singh V/s Commissioner of Police and another] In this case, the Apex Court has discussed similar right of the complainant. Thus, when a proceeding is filed for quashing a criminal proceeding and complainant appears in the proceeding, the Court is bound to hear him. In the case of Bhagwant Sing, the Apex Court has observed that it needs to be presumed that the first informant is interested in the result of the investigation and action taken on his F.I.R. by police. Thus, in both the cases, the discussion is only with regard to the rights of the first informant and the rights have reference to the result of investigation. The right of first informant or private party with regard to the result of investigation as stated above is different from the right which is claimed in a present proceeding, to represent prosecution side in Sessions Court and High Court. Sections 24, 209 (c), 225, 301, 437 (1) (4th proviso) Section 438 (1-A) and Section 439 [Ist proviso] of Cr.P.C. show that the right of private party in this regard is restricted. In correct words, it can be said that no such power of the State is delegated to the private party. In view of aforesaid discussion, this Court holds that in the present proceeding, private party or his counsel cannot be allowed to conduct the matter by giving go-bye to public prosecutor. 21] Two more cases are referred by Single Judge of this Court. in the case of Puran V/s Rambilas and another reported in AIR 2001 16 criapln2458-11 S.C. 2023 and in the case of Chandrakant Chandulal Bhansali V/s Shrikant Shrikrishna Joshi and another reported in 1992(3) Bom.C.R.658. there is a discussion on the point of right of first informant with regard to filing of proceedings for cancellation of bail. In this regard also there are specific provisions. Section 437(5) and 439 (2) of Cr.P.C. show that any Court which has granted bail or High Court and Sessions Court may if it considers it necessary so to do, direct that such person be arrested and commit him to custody. The wording of these 2 provisions show that power is given to the Court and no limitation is given that only public prosecutor should apply for cancellation of the bail. In view of this position of law, the Apex Court has held that the application which was filed by father of the deceased would be maintainable. Filing of such application is only to remind the Court to exercise its power and aforesaid 2 Sections show that the power can be exercised suo moto. 22] The discussion made above and the provisions of Chapter XXXIII of Cr.P.C. which are with regard to bail show that the concept of bail and anticipatory bail has emerged from the conflict between rights of accused and the interest of society. The police powers to investigate, restrict the liberty of an accused are for security of community and these powers take care of interest of affected individuals. The proposed of restriction, arrest and detention are required to be considered by the Court in relation to the rights of 17 criapln2458-11 accused recognized under Article 21 of Indian Constitution. At the same time, there is also presumption of innocence available in favour of