CIVIL, Criminal

Can Session prosecution be conducted by the counsel of a victim ?

CODE OF CRIMINAL PROCEDURE

In Shiv Kumar`s case , the legislative intention becomes manifestly clear that prosecution, in a sessions court, cannot, under the scheme of the Code, be conducted by any one other than the Public Prosecutor. The Legislature reminds the State that the prosecution of every accused must strictly conform to fairness of a criminal trial.

177. As indicated above, a Public Prosecutor’s role is not ensure conviction of an accused, irrespective of the facts involved in the case. The attitude of the Public Prosecutor, who conducts prosecution, shall be fair 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 Prosecutor should not scuttle or conceal it. On the contrary, it is the duty of the Public Prosecutor to help the court reach the truth.

178. As mentioned above, even when a defence counsel overlooks a material aspect of a case, which may help in uncovering the truth and in arriving at a just decision of the case, the Public Prosecutor has the added obligation to bring to the notice of the court such an aspect of the case.

179. Agreed the Supreme Court with the observations of a Division Bench of the High Court of Andhra Pradesh, in Medicheetty Ramakistiah and Ors. v. The State of Andhra Pradesh, AIR 1959 AP 659 , which read:

“A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party.”

(emphasis is added)

180. From the observations made above, it becomes clear that a Public Prosecutor is required to deal with a case with utmost detachment and should not exhibit the intention to secure, by hook or crook, conviction of the accused. Under our criminal jurisprudence, this is one of the essential features of a fair trial.

181. Agreed the Supreme Court with yet another decision of the Andhra Pradesh High Court, Bhupalli Malliah and Ors., In re., AIR 1959 AP 477, wherein the court has deprecated the practice of the Public Prosecutor sitting back and permitting private counsel to conduct prosecution. The High Court, in Bhupalli Malliah (supra), made clear the position of law, in this regard, in the following words:

“We would like to make it very clear that it is extremely undesirable and quite improper that a Public Prosecutor should be allowed to sit back, handing over the conduct of the case to a counsel, however, eminent he may be, briefed by the complainant in the case.”

(emphasis added)

182. Thus, from the scheme of the Code, as delineated above, it becomes clear that once an accused appears in the court, pursuant to the summons issued to him, it is the State, which assumes the role of the prosecutor and conducts the prosecution. A private party, ordinarily, has got no role to play in a case instituted by the State. In all such cases, more particularly, in sessions cases, the prosecution is conducted by the State and a private party, howsoever interested may be in such prosecution, has to act under the directions of the Public Prosecutor, for, there cannot be a situation, where prosecution of a person can be allowed to be conducted by two persons or agencies having two different or conflicting interests. The State, in the case of prosecution of an accused, however, grave the charge may be, has to be impartial and it is no part or the duty of the Public Prosecutor to obtain conviction of an accused facing trial; rather, the solemn role of a Public Prosecutor is to lay bare before the court all such materials, which the State may be capable of producing, in terms of the provisions of law and relevant in the context of the facts of a given case, in order to ensure that justice is done in the case, no matter as to whether the case ends in conviction or acquittal; whereas an informant or a complainant is an interested party. Hence, a prosecution, launched by the State, cannot be allowed to be derailed at the instance of an informant, de facto complainant, aggrieved person or victim.

183. The observations made by the Punjab and Haryana High Court, while dealing with the provisions of section 301, in Kuldip Singh v. State of Haryana1980 Crl. LJ 1159 , throw some light in the above direction. In Kuldip Singh (supra), the court has, at para 4, observed, as under:

“sub section (1) of section 301, deals with the Public Prosecutor and the Assistant Public Prosecutor in-charge of a case. Under sub-section (2), a private person can instruct a pleader to prosecute any person in any court, but such pleader can only act under the directions of the Public Prosecutor or the Assistant Public Prosecutor. The court comes in the picture only if the pleader so engaged wishes to submit written arguments after the evidence is closed. It is, thus, clear that the court is unconcerned in the matter of the engagement of a pleader by a private party and of the conduct of the trial by such pleader under the direction of the Public Prosecutor. This matter is exclusively between the party, pleader and the Public Prosecutor…. The application filed by the petitioner to the learned Additional Sessions Judge for permission to allow his counsel to conduct the trial or to participate therein was misplaced.”

184. In Thakur Ram and Others v. State of BiharAIR 1966 SC 911, the Supreme Court has mode it clear, at para 9, that in a case, which proceeds on a ‘police report’, a private party has no locus standi and that the criminal law cannot be allowed to be used as an instrument of wrecking private vengeance by an aggrieved party against the person, who, according to such a party, had caused injury to the party, who feels aggrieved. The court has made it clear, in Thakur Ram (supra), that barring few exceptions, it is the State, which is the custodian of social interests of the community at large, and so, it is the State, which has to take all steps, which may be necessary, to bring to book the person, who has acted against the social interest of the community, and it is for this reason that in criminal matters, the party, who is treated as aggrieved party, is the State. The relevant observations, in Thakur Ram (supra), read as under:

“In case which has proceeded on a police report a private party has no locus standi. No doubt, the terms of section 435, are very wide and he can even take up the matter suo motu. The criminal law is not, however, to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as 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….”

(emphasis is added)

185. There can be no doubt that investigation and prosecution are two different facets in the administration of criminal justice. While the Public Prosecutor’s role is inside the court, investigation is carried out outside the court. Normally, Public Prosecutor’s role commences on completion of investigation except, perhaps, when the question of consideration of bail arises. There is, however, no impediment, on the part of the investigating agency, to discuss with the Public Prosecutor any aspect of law. Intact, even a police officer is independent, while investigating an offence and his investigation cannot be controlled by, and be subjected to, executive discretion or executive decision. It is the police officer’s duty to enforce law of the land and his obedience is to the law and none else, Lord Denning had observed, in R. v. Metropolitan Police Commissioner, (1968) 1 All. ER 763, thus:

“I have no hesitation, however, in holding that, like every constable in the land, be should, and is, independent of the executive. He is not subject to the orders of the Secretary of State…………………. I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority fell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”

(emphasis added)