170. We may point out that under the scheme of the Code, a sessions trial is required to be conducted by a Public Prosecutor and not by a counsel engaged by the aggrieved party.
171. In Shiv Kumar , the appellant, who carried the matter to the Supreme Court, was aggrieved, because the counsel, engaged by him, was not allowed by the High Court to conduct prosecution despite having obtained a consent, in this regard, from the Public Prosecutor concerned. In fact, in Shiv Kumar (supra), the court had allowed the prosecution to be conducted by the complainant’s counsel. The accused, however, was not prepared to have his case prosecuted by the complainant’s counsel. The accused, therefore, filed a revision in the High Court. The High Court allowed the revision and directed the lawyer, appointed by the complainant/private person, to act under the direction of the Public Prosecutor making it clear that the lawyer for the complainant/private party may, with the permission of the court, submit written argument, when the evidence is closed. The High Court further specifically directed the Public Prosecutor, who was in-charge of the case, to conduct the prosecution.
172. By the time the aggrieved party challenged the High Court’s order, disallowing the aggrieved party’s counsel to conduct the prosecution, the trial was already over. Considering, however, the importance of the issue involved, in Shiv Kumar (supra), the Supreme Court decided the issue of law, namely, whether a counsel, engaged by a complainant/aggrieved party, can conduct prosecution, in a sessions trial, if the Public Prosecutor consents thereto ?
173. Having taken note of the provisions of section 301 and section 302 of the code,the court pointed out that the scheme of the Code is that while it is the Public Prosecutor-in-charge of the case, who must conduct the prosecution, sub-section (2) of section 302 permits the prosecution to be conducted by any person. The Supreme Court, therefore, pointed out that the latter provision, allowing any person to conduct prosecution, is meant for Magisterial Courts and the Magistrate may, therefore, permit any person to conduct prosecution, the only rider being that the Magistrate cannot give such permission to a police officer below the rank of Inspector, but such a person need not necessarily be a Public Prosecutor. However, such a laxity is not extended to other courts inasmuch as section 225 of the code states that in any trial, before a Court of Sessions, the prosecution shall be conducted by a Public Prosecutor.
The Code permits Public Prosecutor to plead in the court without any written authority provided he is in-charge of the case, but any counsel, engaged by an aggrieved party, has to act under the direction of the Public Prosecutor in-charge of the case.
174. In no uncertain words, the Supreme Court made it clear, in Shiv Kumar (supra), thus:
“From the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by any one other than the Public Prosecutor. The Legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions court. 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 couched 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 Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the 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. 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.”
(emphasis is added)
175. The Supreme Court further clarified that, “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 is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act 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 a dead letter. An early decision of a Full Bench of the Allahabad High Court in Queen-Empress v. Durga, ILR 1894 All. 84 has pinpointed the role of a Public Prosecutor as follows: It is the duty of a Public Prosecutor to conduct the case for the Crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the Crown, to see that justice is vindicated: and, in exercising his discretion as to the witnesses whom he should or should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or put into the witness-box for cross-examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favourable to the defence. If a Public Prosecutor is of opinion that a witness is a false witness or is likely to give false testimony if put into the witness-box, he is not bound, in our opinion, to call that witness or to tender him for cross-examination.”(emphasis is added)