The DoP is a crucial office that provides legal opinion on all the bureau’s cases. The DoP will continue to function under the CBI Director, who also has a two-year fixed tenure.
KEYWORDS:- SIT- WITNESS PROTECTION -FAIR TRIAL-
COURT DIRECTIONS :
(a) Ensuring safe passage for the witnesses to and from the court precincts.
(b) Providing security to the witnesses in their place of residence wherever considered necessary, and
(c) Relocation of witnesses to another state wherever such a step is necessary.
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITON (CRL.) NO. 109 of 2003
National Human Rights Commission versus State of Gujarat and Ors.
Crl.M.P. No.10719/2003 in WP (Crl.) No.109/2003 [SEE BELOW ]
Dr. ARIJIT PASAYAT, J.
1. By order dated 26.3.2008 in this group of cases this Court had directed the Gujarat Government to constitute a five members Special Investigation Team (in short the `SIT’) to be headed by Mr. R.K. Raghavan, former Director of the Central Bureau of Investigation to undertake inquiry/investigation including further investigation in nine cases. It was further directed that the SIT shall submit its report within a particular time. The State Government issued a Notification dated 1.4.2008 constituting the SIT. On 11.2.2009 the SIT has submitted its consolidated report. It has indicated therein that since its constitution the SIT has made considerable progress in respect of each of the nine cases and the current status is as follows:
1: Godhra Railway Police Station Cr. No 09/02
Witnesses examined 183(125 old & 61 new)
Number arrested —
Charge sheets filed –
Stage of investigation Completed
2: Khambholaj Police Station Cr. No 23/02
Witnesses examined 85(30 old & 55 new)
Number arrested Court is requested to issue process against 16 accused
Charge sheets filed Amended separate charge sheet-1
Stage of investigation Completed
3: Khambholaj Police Station Cr. No 27/02
Charge sheets filed
Stage of investigation Completed
4: Naroda Police Station Cr. No 98/02
Stage of investigation Nearly complete
5: Naroda Police Station Cr. No 100/02
Witnesses examined : 341
Stage of investigation Nearly complete
6. Meghaninagar Police Station Cr. No 67/02
Stage of investigation. Nearly complete
7: Visnagar Police Station Cr. No 60/02
Stage of investigation Nearly complete
8. Vijapur Police Station Cr.No.46/02
Stage of investigation Completed
9. Prantij Police Station Cr.No.100/02
Witnesses examined 24 (14 old and 10 new)
Number arrested –
Chargesheets filed –
Stage of investigation Completed
2. In separate sealed covers the IO’s report in each case accompanied by the Supervising IGP and the Chairman’s comments were submitted. The other members of the team are Shri C.B. Satpathy, Smt. Geetha Johri, Shri Shivanand Jha and Shri Ashish Bhatia. The last three are officers of the Indian Police Service from the Gujarat cadre.
3. Pursuant to the directions given by this Court copies of the report were supplied to learned Amicus Curiae and learned counsel for the State of Gujarat. Suggestions have been given by learned Amicus Curiae, learned counsel for the State and some of the parties in the proceedings.
4. Several important aspects need to be noted in these cases. Firstly, due to the efforts of SIT, persons who were not earlier arrayed as accused have now been arrayed as accused. From the details indicated above it appears that in most of the cases a large number of persons have been additionally made accused. Besides this, a large number of witnesses were also examined in each case. This goes to show the apparent thoroughness with which the SIT has worked. Therefore, the SIT shall continue to function until the completion of trial in all the cases and if any further inquiry/investigation is to be done the same can be done as provided in law, more particularly, under Section 173 (8) of the Code of Criminal Proceudre,1973 (in short the `Code’).
5. A few important aspects concerning the cases need to be noted.
(1) Fair trial
(2) Modalities to ensure that the witnesses depose freely and in that
context the need to protect the witnesses from interference by person(s) Connected with it is the protection of victims who in most cases are witnesses.
(3) Able assistance to court by competent public prosecutors.
(4) Further role of SIT.
6. So far as fair trial is concerned the discovery and vindication and establishment of truth are certainly the main purposes of courts of justice. They are the underlying objects for the existence of the courts of justice.
7. The importance of the witnesses in a criminal trial does not need any reiteration. In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Ors. (2006 (3) SCC 374) it was observed as under:
“22. The complex pattern of life which is never static requires a fresher outlook and a timely and vigorous moulding of old precepts to some new conditions, ideas and ideals. If the court acts contrary to the role it is expected to play, it will be destruction of the fundamental edifice on which the justice delivery system stands. People for whose benefit the courts exist shall start doubting the efficacy of the system. “Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: `The Judge was biased.’ ” (Per Lord Denning, M.R. in Metropolitan Properties Co. Ltd. v. Lannon, All ER p. 310 A.) The perception may be wrong about the Judge’s bias, but the Judge concerned must be careful to see that no such impression gains ground. Judges like Caesar’s wife should be above suspicion (Per Bowen, L.J. in Leeson v. General Council of Medical Education.) xx xx xx
24. It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep the promise to justice and it cannot stay petrified and sit nonchalantly. The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection lose hope (see Jennison v. Baker).
Increasingly, people are believing as observed by Salmon quoted by Diogenes Laertius in Lives of the Philosophers, “Laws are like spiders’ webs: if some light or powerless thing falls into them, it is caught, but a bigger one can break through and get away.” Jonathan Swift, in his “Essay on the Faculties of the Mind” said in similar lines: “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”
xx xx xx
30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial: the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.
31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as “one of the ablest judgements of one of the ablest judges who ever sat in this Court”, Vice-Chancellor Knight Bruce said (ER p.957):
“The discovery and vindication and establishment of truth are main purposes certainly of the existence of courts of justice; still, for the obtaining of these objects, which, however, valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination …. Truth, like all other good things, may be loved unwisely–may be pursued too keenly–may cost too much.”
The Vice-Chancellor went on to refer to paying “too great a price … for truth”. This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: “The evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards.”
32. Restraints on the processes for determining the truth are multifaceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the traditional common law method of induction there has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process:
“It is the merit of the common law that it decides the case first and determines the principles afterwards…. It is only after a series of determination on the same subject-matter, that it becomes necessary to `reconcile the cases’, as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well-settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step.”
33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new changing circumstances, and exigencies of the situation–peculiar at times and related to the nature of crime, persons involved–directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.
34. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the law of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane, J. put it:
“It is desirable that the requirement of fairness be separately identified since it transcends the context of more particularised legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law.”
35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice–often referred to as the duty to vindicate and uphold the “majesty of the law”. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson’s eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.
38. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an over hasty stage- managed, tailored and partisan trial.
39. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.
40. “Witnesses” as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle the truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth is presented before the court and justice triumphs and that the trial is not reduced to a mockery. Doubts are raised about the roles of investigating agencies. Consequences of defective investigation have been elaborated in Dhanaj Singh v. State of Punjab. It was observed as follows: (SCC p.657, paras 5-7) “5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P.)
6. In Paras Yadav v. State of Bihar it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
7. As was observed in Ram Bihari Yadav v. State of Bihar if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh.”
41. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in the court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation (sic repetition). We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short “the TADA Act”) have taken note of the reluctance shown by witnesses to depose against people with muscle power, money power or political power which has become the order of the day. If ultimately the truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before the courts mere mock trials as are usually seen in movies.”
8. It is an established fact that witnesses form the key ingredient in a criminal trial and it is the testimonies of these very witnesses, which establishes the guilt of the accused. It is, therefore, imperative that for justice to be done, the protection of witnesses and victims becomes essential, as it is the reliance on their testimony and complaints that the actual perpetrators of heinous crimes during the communal violence can be brought to book.
9. Vide an order dated 8th August 2003 in the matter of National Human Rights Commission v. State of Gujarat, this Court regretted that “no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses.”
10. Further, in the case of Zahira v. State of Gujarat (2004 (4) SCC 158), while transferring what is known as the `Best Bakery Case’, to Mumbai vide its order dated 12th April, 2004, directed: “The State of Gujarat shall also ensure that the witnesses are produced before the concerned court, whenever they are required to attend them, so that they can depose freely without any apprehension of threat or coercion from any person. In case any witness asks for protection, the State of Maharashtra shall also provide such protection as deemed necessary, in addition to the protection to be provided for by the State of Gujarat. “
11. The Law Commission in its 14th Report (1958) referred to ‘witness- protection’, but that was in a limited sense. That related to proper arrangements being provided in the Courthouse, the scales of travelling allowance, their daily allowance etc.
12. The National Police Commission Report (1980) again dealt with the inadequacy of daily allowance for the witnesses, but nothing more.
13. The 154th Report of the Law Commission 1996 contained a chapter on Protection and facilities to Witnesses. The recommendations mostly related to allowances and facilities to be made available for the witnesses. However, one of the recommendations was: “Witnesses should be protected from the wrath of the accused in any eventuality”. But, Commission had not suggested any measure for the physical protection of witnesses.
14. The 178th Report of Law Commission, again, referred to the fact of witness turning hostile, and the recommendations were only to prevent witnesses from turning hostile. The report suggested an amendment to insert Section 164-A to the Code.
15. The Law Commission of India’s 198th Report has also voiced similar concerns and has categorically stated “it is accepted today that WIP is necessary in the case of all serious offences wherein there is danger to witnesses and it is not confined to cases of terrorism or sexual offences”
16. Under the English law, threatening a witness from giving evidence, is contempt of Court. So also any act of threat or revenge against a witness after he has given evidence in Court, is also considered as contempt. In 1994 the U.K. Government enacted a law known as Criminal Justice and Public Order Act, 1994 which provides for punishment for intimidation of witnesses. Section 51 of the Act not only protects a person who is actually going to give evidence at a trial, but also protects a person who is helping with or could help with the investigation of a crime. Under a similar law in Hong-Kong, Crimes Ord. (Cap. 200) HK, if the threat or intimidation is directed even as against a friend or relative of the witness, that becomes a punishable offence
17. In the United States, the Organized Crime Control Act, 1970 and later the Comprehensive Crime Control Act, 1984 authorized the Witness Security Programme. The Witness Security Reform Act, 1984 provides for relocation and other protection of a witness or a potential witness in an official proceeding concerning an organised criminal activity or other serious offence. Protection may also be provided to the immediate family of, or a person closely associated with, such witness or potential witness if the family or person may also be endangered on account of the participation of the witness in the judicial proceeding.
18. The Attorney General takes the final decision whether a person is qualified for protection from bodily injury and otherwise to assure the health, safety and welfare of that person. In a large number of cases, witnesses have been protected, relocated and sometimes even given new identities. The Programme assists in providing housing, medical care, job training and assistance in obtaining employment and subsistence funding until the witness becomes self-sufficient. The Attorney General shall not provide protection to any person if the risk of danger to the public, including the potential harm to innocent victims, overweighs the need for that person’s testimony. A similar programme is in Canada under Witness Protection Act, 1996. The purpose of the Act is “to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance in law enforcement matters” [Section 3]. Protection given to a witness may include relocation, accommodation and change of identity as well as counseling and financial support to ensure the security of the protectee or to facilitate his becoming self-sufficient. Admission to the Programme is determined by the Commissioner of Police on a recommendation by a law enforcement agency or an .international criminal court or tribunal [Sections 5 and 6]. The extent of protection depends on the nature of the risk to the security of the witness, the value of the evidence and the importance in the matter.
19. The Australian Witness Protection Act, 1994 establishes the National Witness Protection Programme in which (amongst others) the Commissioner of the Australian Federal Police arranges or provides protection and other assistance for witnesses [Section 4]. The witness must disclose a wealth of information about himself before he is included in the Programme. This includes his outstanding legal obligations, details of his criminal history, details of his financial liabilities and assets etc. [Section 7]. The Commissioner has the sole responsibility of deciding whether to include a witness in the Programme.
20. The Witness Protection Act, 1998 of South Africa provides for the establishment of an office called the Office for Witness Protection within the Department of Justice. The Director of this office is responsible for the protection of witnesses and related persons and exercises control over Witness Protection Officers and Security Officers [Section 4]. Any witness who has reason to believe that his safety is threatened by any person or group or class of persons may report such belief to the Investigating Officer in a proceeding or any person in-charge of a police station or the Public Prosecutor etc. [Section 7) and apply for being placed under protection. The application is then considered by a Witness Protection Officer who prepares a report, which is then submitted to the Director [Section 9]. The Director, having due regard to the report and the recommendation of the Witness Protection Officer, takes into account the following factors, inter-alia, [Section 10] for deciding whether a person should be placed under protection or not:
(i) The nature and extent of the risk to the safety of the witness or related person.
(ii) The nature of the proceedings in which the witness has given evidence or may be required to give evidence.
21. The importance, relevance and nature of the evidence, etc, in European countries such as Italy, Germany and Netherlands, the Witness Protection Programme covers organised crimes, terrorism, and other violent crimes where the accused already know the witness/victim.
22. But it would not be proper to give any general directions for witness protection. It would primarily depend upon the fact situation of each case. Practical difficulties in effectively implementing any witness protection scheme cannot be lost sight of. We are considering that aspect focusing on the fact situation of the present cases.
23. The need for setting up separate victim and witness protection units in the trial of mass crimes has been acknowledged in the setting up of international tribunals to deal with them. The International Criminal Tribunal for Rwanda has formulated rules for protection of victims and witnesses. Similar provisions exist in the Statute for the creation of an International Criminal Court (in short `ICC’). In most of the cases, witnesses are the victims of the crime. Most vulnerable amongst them are women and children. Under the existing system they are mere pawns in a criminal trial and there is very little concern for protecting their real interests. The protection is necessary so that there is no miscarriage of justice; but protection is also necessary to restore in them, a sense of human dignity.
24. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations General Assembly in resolution 40/34 of 29th November, 1985. According to the first paragraph of this declaration, victims of crime are described as persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative in Member States, including those laws proscribing criminal abuse of power. It is they who need protection.
25. This is essentially to obliterate the apprehension that the public prosecutor is not fair in court or is not conducting the prosecution in the proper manner. The State of Gujarat shall appoint public prosecutors in each of the cases in consultation with the SIT which opinion shall be final and binding on the State Government.
26. It needs to be emphasized that the rights of the accused have to be protected. At the same time the rights of the victims have to be protected and the rights of the victims cannot be marginalized. Accused persons are entitled to a fair trial where their guilt or innocence can be determined. But from the victims’ perception the perpetrator of a crime should be punished. They stand poised equally in the scales of justice.
27. In order to ensure that the trials are conducted in a fair manner and within the realm of protecting the rights of the victims it is important that the decorum of the court is maintained at all times. In order to balance the need for a public trial with the need to ensure that victims/witnesses are not intimidated within the court rooms, it is necessary for the court to impose reasonable restrictions on the entry of persons into the court room.
28. The role of public prosecutors in ensuring a fair trial is of paramount importance.
29. This Court in S.B. Shahane and Ors. v. State of Maharashtra and Another, 1995 Supp (3) SCC 37 had stressed on the desirability of separation of prosecution agency from investigation agency. It was observed that such Assistant Public Prosecutors could not be allowed to continue as personnel of the Police Department and to continue to function under the control of the head of the Police Department. State Governments were directed to constitute a separate cadre of Assistant Public Prosecutors by creating a separate prosecution Department making its head directly responsible to the State Government.
30. Many commonwealth countries like Australia have a Commonwealth Director of Public Prosecutions, which was set up by the Director of Public Prosecutions Act 1983 and started operations in 1984. The nine States and territories of Australia also have their own DPPs. Ultimate authority for authorizing prosecutions lies with the Attorney General. However, since that is a political post, and it is desired to have a non-political (public service) post carry out this function in most circumstances, the prosecutorial powers of the AG are normally delegated to the DPP. However, in South Australia the AG may direct the DPP to prosecute or not to prosecute. This is a very rare occurrence. It is common for those who hold the office of Commonwealth or State DPP later to be appointed to a high judicial office. In Canada, each province’s Crown Attorney Office (Canada) is responsible for the conduct of criminal prosecutions. In Ontario, local Crown Attorney in the Criminal Law Division is in charge of criminal cases. Only British Columbia, Nova Scotia and Quebec (a civil code jurisdiction) have a Director of Public Prosecutions office. Recent legislation passed by Parliament split the conduct of federal prosecutions from the Department of Justice (Canada), and created the Office of the Director of Public Prosecutions (officially to be called as Public Prosecution Service of Canada). This legislation came into effect December 12, 2006.The Director of Public Prosecutions of Hong-Kong, China heads the prosecutions Division of the Department of Justice, which is responsible for prosecuting trials and appeals on behalf of the Hong Kong Special Administrative Region, providing legal advice to law enforcement agencies, acting on behalf of the Secretary for Justice in the institution of criminal proceedings, and providing advice and assistance to bureaux and departments in relation to any criminal law aspects of proposed legislation. The DPP is superintended by the Secretary for Justice, who is also accountable for the decisions of the DPP. The Director of Public Prosecutions in the Republic of Ireland has been responsible for prosecution, in the name of the People, of all indictable criminal offences in the Republic of Ireland since the enactment of the Prosecution of Offences Act 1974. Before 1974, all crimes and offences were prosecuted at the suit of the Attorney General. The DPP may also issue a certificate that a case should be referred to the Special Criminal Court; a juryless trial court usually reserved for terrorists and organized criminals. In South Africa public prosecutions are conducted by an independent National Director of Public Prosecutions (NDPP). The NDPP is supported by a Chief Executive Officer, Marion Sparg, Deputies, regional Directors of Public Prosecutions (DPP’s), and several Special Directors. The National Director is also head of the controversial Directorate of Special Operations (DSO) – commonly known as the Scorpions – which deals with priority and organized crime. In 2005, the unit instituted proceedings against the country’s Deputy President, Jacob Zuma, leading to his dismissal. In England and Wales, the office of Director of Public Prosecutions was first created in 1880 as part of the Home Office, and had its own department from 1908. The DPP was only responsible for the prosecution of a small number of major cases until 1986 when responsibility for prosecutions was transferred to a new Crown Prosecution Service with the DPP as its head. He/she is appointed by the Attorney General for England and Wales. In Northern Ireland a similar situation existed, and the DPP now heads the Public Prosecution Service for Northern Ireland.
31. The Law Commission in 1958 had recommended that a Director of Prosecutions be set up having its own cadre, though this recommendation was not included in the Code then. Again in 1996 the Law Commission in its 154th report identified as Independent Prosecuting Agency as one of the several areas within the Code which required redesigning and restructuring. The Law Commission supported most of the proposed amendments to the Code as contained in the proposed Code of Criminal Procedure Amendment Bill 1994. Recommendations related to the structure of a Directorate of Prosecutions at the State level, to be adopted by a State Government in the event it decided to set up a cadre of prosecutors. The Law Commission further recommended that the structure of State level Directorates of Prosecution be given statutory status through an amendment to the Code.
32. Despite the absence of such a requirement and inadequacy of the Provisions in the Code a number of states mainly, Delhi, Andhra Pradesh, Bihar, Goa, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Orissa, Tamil Nadu and Uttaranchal, established a Directorate of Prosecution.
33. By an amendment in 2006, Section 25A was inserted in the Code, which categorically legislated for the creation of a Directorate of Prosecution in every state.
“25-A. Directorate of Prosecution.-(1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be eligible . to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of Section 24 to conduct cases in the High. Court shall be subordinate to the Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution.
(7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.
(8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.
34. As noted above, the role of victim in a criminal trial can never be lost sight of. He or she is an inseparable stakeholder in the adjudicating process.
35. United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, was adopted by the General Assembly through a resolution 40/34 of 29th November 1985. Articles 4 and 5 of the above mentioned United Nations Declaration categorically states:
4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
36. The appointment of Prosecutors to these trials has to be made in consultation with SIT, whose opinion would be binding on the state government.
37. United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly through a resolution 40/34 of 29th November 1985categorically through Section 6 (b) provides:
“6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system”.
38. In the United States of America, the existing Crime Victims Rights Act of 2004, categorically through section 3771(4) from chapter 237 provides for “the right to be heard at any public proceeding involving release, pleas or sentencing”.
39. This Court had held in U.P.S.C. v. S. Papiah (1997) 7 SCC 614 that a closure report by the Prosecution cannot be accepted by the court without hearing the informant.
Para 9-There can therefore, be no doubt that when, on a consideration of the report a made by the officer-in-charge of a police station under Section 2(i) of Section 173 the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom the report is forwarded under sub section (2) (i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of the consideration of this report.”
40. This position was illuminatingly stated in Abhinandan Jha and Ors. v. Dinesh Mishra (AIR 1968 SC 117).
41. In J.K. International v. State Government of NTC (2001)3 SCC 462, this Court had held that:
“A person at whose behest an investigation is lunched by the police is not altogether wiped out of the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them.”
42. Since the protection of a witness is a paramount importance it is imperative that if and when any witness seeks protection so that he or she can depose freely in court, the same has to be provided. It is therefore directed that if a person who is examined as a witness needs protection to ensure his or her safety to depose freely in a court he or she shall make an application to the SIT and the SIT shall pass necessary orders in the matter and shall take into account all the relevant aspects and direct such police official/officials as it considers proper to provide the protection to the concerned person. It shall be the duty of the State to abide by the direction of the SIT in this regard. It is essential that in riot cases and cases involving communal factors the trials should be held expeditiously. Therefore, we request the Hon’ble Chief Justice of Gujarat High Court to designate court(s) in each district where the trial of the concerned cases are to be held. The Designated Courts shall take up the cases in question. Taking into account the number of witnesses and the accused persons and the volumes of evidence, it is open to the High Court to designate more than one court in a particular district. Needless to say that these cases shall be taken up by the Designated Court on a day-to-day basis and efforts shall be made to complete the trial with utmost expedition. The SIT shall furnish periodic reports if there is any further inquiry/investigation. The State of Gujarat shall also file a status report regarding the constitution of the courts in terms of the directions to be given by the Hon’ble Chief Justice of the High Court within three months. The matter shall be listed further as and when directed by this Court.
43. It appears that in these petitions, which sought various reliefs including the transfer of some of the ongoing trials, and a reinvestigation/further investigation into the various incidents on the basis of which charges had been filed in these trials, this Court, in the first instance, granted a stay of these ongoing trials.
44. The matter was then heard from time to time and an order was then made on 26th March 2008 directing the establishment of the SIT, and for a further investigation into these matters. The matters under investigation were those arising out of
(a) Crime No. 9/02
(b)Crime No. 100/02
(c) Crime No. 23/02
(d) Crime No. 98/02
(e) Crime No. 46/02
(f) Crime No. 67/02
(g) Crime No. 60/02
(h) Crime No. 26/02
(i) Crime No. 27/02
45. The reports of the SIT, in respect of each of these cases have now been received. We have considered the submissions made by Mr. Harish N. Salve, learned amicus curiae, Mr. Mukul Rohtagi, learned counsel for the State, Ms. Indira Jaisingh and other learned counsel.
46. The following directions are given presently:
(i) Supplementary charge sheets shall be filed in each of these cases as the SIT has found further material and/or has identified other accused against whom charges are now to be brought.
(ii) the conduct of the trials has to be resumed on a day-to-day basis – keeping in view the fact that the incidents are of January, 2002 and the trials already stand delayed by seven years. The need for early completion of sensitive cases more particularly in cases involving communal disturbances cannot be overstated.
(iii) the SIT has suggested that the six “Fast Track Courts” be designated by the High Court to conduct trial, on day-to-day basis, in the five districts as follows:
i) Ahmedabad (Naroda Patia, Naroda Gam)
ii) Ahmedabad (Gulbarg).
iii) Mehsana (for two cases).
iv) Saabarkantha opened(British National case)
vi) Godhra Train Case (at Sabarmati Jail, Ahmedabad).
(iv) It is imperative, considering the nature and sensitivity of these nominated cases, and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as soon as possible and in the most satisfactory manner. In order to ensure that all concerned have the highest degree of confidence in the system being put in place, it would be advisable if the Chief Justice of the High, Court of Gujarat selects the judicial officers to be so nominated. The State of Gujarat has, in its suggestions, stated that it has no objection to constitution of such “fast track courts”, and has also suggested that this may be left to Hon’ble the Chief Justice of the High Court.
(v) Experienced lawyers familiar with the conduct of criminal trials are to be appointed as Public Prosecutors. In the facts and circumstances of the present case, such public prosecutors shall be appointed in consultation with the Chairman of the SIT. The suggestions of the State Government indicate acceptance of this proposal. It shall be open to the Chairman of SIT to seek change of any Public prosecutor so appointed if any deficiency in performance is noticed. If it appears that a trial is not proceeding as it should, and the Chairman of the SIT is satisfied that the situation calls for a change of the public prosecutor or the appointment of an additional public prosecutor, to either assist or lead the existing Public Prosecutor, he may make a request to this effect to the Advocate General of the State, who shall take appropriate action in light of the recommendation by the SIT.
(vi) If necessary and so considered appropriate SIT may nominate officers of SIT to assist the public prosecutor in the course of the trial. Such officer shall act as the communication link between the SIT and the Public Prosecutor, to ensure that all the help and necessary assistance is made available to such Public Prosecutor.
(vii) The Chairman of the SIT shall keep track of the progress of the trials in order to ensure that they are proceeding smoothly and shall submit quarterly reports to this court in regard to the smooth and satisfactory progress of the trials.
(viii) The stay on the conduct of the trials are vacated in order to enable the trials to continue. In a number of cases bail had been granted by the High Court/Sessions Court principally on the ground that the trials had been stayed. Wherever considered necessary, the SIT can request the Public Prosecutor to seek cancellation of the bails already granted.
(ix) For ensuring of a sense of confidence in the mind of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the court:
In case of witnesses following steps shall be taken:
(a) Ensuring safe passage for the witnesses to and from the court precincts.
(b) Providing security to the witnesses in their place of residence wherever considered necessary, and
(c) Relocation of witnesses to another state wherever such a step is necessary.
(x) As far as the first and the second is concerned, the SIT shall be the nodal agency to decide as to which witnesses require protection and the kind of witness protection that is to be made available to such witness.
(xi) In the case of the first and the second kind of witness protection, the Chairman, SIT could, in appropriate cases, decide which witnesses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities.
(xii) In the third kind of a situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the relocation of such witness. The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union of India, who would take such steps as are necessary to relocate the witnesses.
(xiii) All the aforesaid directions are to be considered by SIT by looking into the threat perception if any.
(xiv) The SIT would continue to function and carry out any investigations that are yet to be completed, or any further investigation that may arise in the course of the trials. The SIT would also discharge such functions as have been cast upon them by the present order.
(xv) If there are any matters on which directions are considered necessary (including by way of change of public prosecutors or witness protection), the Chairman of the SIT may (either directly or through the Amicus Curiae) move this Court for appropriate directions.
(xvi) It was apprehension of some learned counsel that unruly situations may be created in court to terrorise witnesses. It needs no indication that the Court shall have to deal with such situations sternly and pass necessary orders. The SIT shall also look into this area. (xvii) Periodic three monthly reports shall be submitted by the SIT to this Court in sealed covers.
47. List after four months.
(Dr. ARIJIT PASAYAT)
New Delhi, May 01, 2009
Crl.M.P. No. 7078/2003 in WP (Crl.) No.109/2003
Crl.M.P. No. 7827/2003, 8193/2003 & 8194/2003 in WP (Crl.) No.109/2003
Crl.M.P. No. 11668/2003 in WP (Crl.) No.109/2003
Crl.M.P. No. 11689/2003 in WP (Crl.) No.109/2003
Crl.M.P. No. 4782/2003 in WP (Crl.) No.109/2003
Crl.M.P. No. 3741/2004 & 3742/2004 in WP (Crl.) No.109/2003
Crl.M.P. No. 6864/2004 in WP (Crl.) No.109/2003
Crl.M.P. No. 9236/2005 in WP (Crl.) No.109/2003
Crl.M.P. No. 6767/2006 in WP (Crl.) No.109/2003
Crl.M.P. No. 7824/2007 in WP (Crl.) No.109/2003
W.P. (Crl.) No.D.17953/2003
TP (Crl.) Nos. 194-202 and 326-329/2003
SLP (Crl.) No.7951/2002
SLP (Crl.) No.4409/2003
TP(Crl.) No. 66-72/2004
TP(Crl.) No.43 of 2004
WP(Crl.) No. 118 of 2003
TP(Crl.) Nos. 233-234/2004
WP (Crl.) Nos. 37-52/2002
WP (Crl.) No.284/2003
Crl.M.P. No.6767/2006 in Crl.M.P.Nos. 3741-3742/2004 in
WP(Crl.)No.109/2003 Crl.M.P. No.4485/2006 in SLP (Crl.) No.3770/2003
LAW OF PAKISTAN
(Act III of 2006)
C O N T E N T S
- Short title, extent and commencement.
Establishment, Constitution and
Administration of the Service
- Establishment of the Service.
- Superintendence and administration.
- Prosecutor General.
- Qualifications for the appointment of Prosecutor General.
Powers and Functions of the Prosecutors
- Conduct of Prosecution.
- Powers of Prosecutor.
- Conduct of prosecution before Superior Courts.
- Responsibilities of Police towards Prosecutors.
- Duties of the Prosecutors.
Establishment of Process Serving Agency
- Establishment of agency.
- Powers to make rules and regulations.
- Terms and conditions of Service.
- Code of conduct.
- Removal of difficulties.
- Act to override other laws.
THE PUNJAB CRIMINAL PROSECUTION SERVICE (CONSTITUTION, FUNCTIONS AND POWERS) ACT 2006
(Act III of 2006)
[8 April 2006]
An Act to establish a Criminal Prosecution Service in the Punjab.
Preamble.– Whereas it is expedient to establish an independent, effective and efficient service for prosecution of criminal cases, to ensure prosecutorial independence, for better coordination in the criminal justice system of the Province and matters incidental thereto;
It is hereby enacted as follows:-
- Short title, extent and commencement.– (1) This Act may be called the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act 2006.
(2) It extends to the whole of the Punjab.
(3) It shall come into force at once.
- Definitions.– (1) In this Act, unless the subject or context otherwise requires–
(a) “Act” means the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act 2006;
(b) “Code” means the Code of Criminal Procedure, 1898 (Act V of 1898);
(c) “district” means a district as defined in the Punjab Local Government Ordinance, 2001 (XIII of 2001);
(d) “first information report” means an information recorded under section 154 of the Code;
(e) “Government” means the Government of the Punjab;
(f) “High Court” means the Lahore High Court;
(g) “investigation officer” means an officer of a law enforcement agency competent under any law, for the time being in force, to investigate an offence;
(h) “law enforcement agency” includes the Punjab Police and any other agency established under any law, as may be notified by the Government;
(i) “Order” means the Police Order, 2002 (Chief Executive’s Order No.22 of 2002);
(j) “prescribed” means prescribed by rules or regulations made under this Act;
(k) “prosecution” means the prosecution of a criminal case;
(l) “Prosecutor” means the Prosecutor General, Additional Prosecutor General, Deputy Prosecutor General, District Public Prosecutor, Deputy District Public Prosecutor, Assistant District Public Prosecutor and a Public Prosecutor appointed under this Act and shall be deemed to be the public prosecutor under the Code;
(m) “Prosecutor General” means the Prosecutor General appointed under section 6;
(n) “regulations” means the regulations framed under this Act;
(o) “rules” means rules made under this Act;
(p) “Service” means the Punjab Criminal Prosecution Service; and
(q) “Supreme Court” means the Supreme Court of Pakistan.
(2) The words and expressions used herein but not defined shall have the same meaning as are assigned to them in the Code or the Order.
Establishment, Constitution and
Administration of the Service
- Establishment of the Service.– The Government shall establish and maintain a Service to be called the Punjab Criminal Prosecution Service.
- Constitution.– The Service shall consist of the Prosecutor General, Additional Prosecutors General, Deputy Prosecutors General, District Public Prosecutors, Deputy District Public Prosecutors and Assistant District Public Prosecutors.
5. Superintendence and administration.– (1) The Government shall exercise superintendence over the Service to achieve the objectives of this Act.
(2) The administration of the Service shall, in the prescribed manner, vest in the Prosecutor General.
(3) [A Public Prosecutor, an Additional Prosecutor General and a Deputy Prosecutor General shall perform functions under the directions of the Prosecutor General.]
(4) Subject to the general directions of the Prosecutor General, all other Prosecutors within a district shall perform functions under the control of the District Public Prosecutor.]
- Prosecutor General.– [(1) The Prosecutor General shall be the head of the Service and shall be appointed by the Government on such terms and conditions as the Government may determine:
Provided that the terms and conditions of service of the Prosecutor General shall not be varied during the initial or extended term of his office.
(2) The Prosecutor General shall hold office for a term of three years but the Government may, after evaluation of the performance of the Prosecutor General in the prescribed manner, extend that term for a further period of two years.]
(4) The Prosecutor General may resign from his post during the tenure of his office by submitting his resignation in writing to the Government.
(5) The Government may, for reasons to be recorded in writing and after providing him an opportunity of being heard, remove the Prosecutor General prior to the completion of his tenure, on the ground of misconduct or physical infirmity.
(6) The Prosecutor General shall have a right of representation and audience on behalf of the Government in all courts including the High Court, the Federal Shariat Court and the Supreme Court.
(7) The Prosecutor General may delegate any of his functions to an Additional Prosecutor General or to a Deputy Prosecutor General.
- Qualifications for the appointment of Prosecutor General.– A person shall not be appointed as Prosecutor General unless he is a citizen of Pakistan, and is not less than forty five years of age, and–
(a) he has, for a period of, or for the periods aggregating, not less than ten years, been an advocate of the High Court; or
(b) he is a law graduate and has, for a period of not less than seventeen years, been a member of the prescribed civil service; or
(c) he has, for a period of not less than ten years, held a judicial office in the Punjab; or
(d) he has, for a period of not less than five years, performed functions of an Additional Prosecutor General; or
(e) he has, for a period of not less than seven years, performed the functions of a District Public Prosecutor or has performed functions of a Prosecutor in the Punjab, under any law, for a period of not less than fifteen years.
Explanation.– In computing the period during which a person has been an advocate of the High Court or held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office.
- Appointments.– (1) The Government may appoint Additional Prosecutors General and Deputy Prosecutors General to conduct criminal cases in the Supreme Court, the High Court, the Federal Shariat Court or any other Special Court.
(2) The Government shall appoint a District Public Prosecutor in each district who shall be the officer incharge of the prosecution in the district within the meanings of the Code.
(4) All appointments by initial recruitment shall be made on the recommendation of Punjab Public Service Commission.]
Powers and Functions of the Prosecutors
- Conduct of prosecution.– (1) The Prosecutors shall be responsible for the conduct of prosecution on behalf of the Government.
(2) The Prosecutor General or if so authorized by him, an Additional Prosecutor General shall distribute work to the Prosecutors in the Supreme Court, the High Court, the Federal Shariat Court or a Special Court established under any law for the time being in force.
(3) A District Public Prosecutor shall distribute work to the Prosecutors with respect to the Courts of Session and Courts of Magistrates within a district.
(4) A police report under section 173 of the Code including a report of cancellation of the first information report or a request for discharge of a suspect or an accused shall be submitted to a Court through the Prosecutor appointed under this Act.
(5) The Prosecutor shall scrutinize the report or the request and may–
(a) return the same within three days to the officer incharge of police station or investigation officer, as the case may be, if he finds the same to be defective, for removal of such defects as may be identified by him; or
(b) if it is fit for submission, file it before the Court of competent jurisdiction.
(6) On receipt of an interim police report under section 173 of the Code, the Prosecutor shall–
(a) examine the reasons assigned for the delay in the completion of investigation and if he considers the reasons compelling, request the Court for the postponement of trial and in case investigation is not completed within reasonable time, request the Court for commencement of trial; and
(b) in cases where reasons assigned for delay in the completion of investigation are not compelling, request the Court for commencement of trial on the basis of the evidence available on record.
[(7) The Prosecutor shall submit, in writing, to the Magistrate or the Court, the result of his assessment as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case and the Magistrate or the Court shall give due consideration to such submission.]
[(8) If an accused pleads guilty or, as the case may be, at the time the Prosecutor sums up the case, the Prosecutor shall propose to the Magistrate or the Court the punishment which, in his opinion, the accused should be awarded.]
- Powers of Prosecutor.– (1) The Prosecutor General may issue general guidelines to the Prosecutors or officers responsible for investigation for effective and efficient prosecution.
(2) The Prosecutor General or the District Public Prosecutor may, refer to the authority, competent to initiate disciplinary proceedings under any law for the time being in force, to take disciplinary action against any public servant working in connection with investigation or prosecution, for any act committed by him and is prejudicial to the prosecution.
(3) A Prosecutor may–
(a) exercise all or any of the powers mentioned in section 9;
(b) call for a report within a specified time from any officer of law enforcing agency in relation to an investigation;
(c) call for record or any other document within a specified time from a law enforcement agency and if necessary, from any other Government department or agency as may be necessary for the purposes of prosecution;
(d) perform such functions and exercise such powers as may be entrusted to him under the Code and any other law for the time being in force;
(e) with the consent of the Court, withdraw from prosecution of any person either generally or in respect of any one or more of the offences for which he is being tried, after obtaining prior approval of–
(i) the District Public Prosecutor, where the offence is punishable up to three years;
(ii) the Prosecutor General, where the offence is punishable upto seven years; and
(iii) the Government, in all other offences and for the offences triable by the Special Courts; and
(f) at any stage of a trial before any trial court subordinate to the High Court before the judgment is passed, the Prosecutor General or any Prosecutor specifically authorized by him, may, for reasons to be recorded in writing, inform the court on behalf of the Government that the Prosecutor shall not prosecute the accused upon the charge and thereupon all proceedings against the accused shall be stayed and he shall be discharged of and from the same:
Provided that such discharge shall not amount to an acquittal unless the court directs otherwise.
- Conduct of prosecution before Superior Courts.– (1) Without prejudice to the powers conferred under any law on the office of the Attorney General of Pakistan and the Advocate General, the Prosecutor General and the Additional Prosecutor General may depute any Prosecutor, otherwise qualified, for conducting prosecution before the Supreme Court, the High Court or the Federal Shariat Court.
(2) The Prosecutor General shall keep liaison with the office of the Attorney General of Pakistan and the Advocate General in relation to criminal matters pending in any such Court.
- Responsibilities of Police towards Prosecutors.– (1) An officer incharge of a police station or the investigation officer shall–
(a) immediately report to the District Public Prosecutor, the registration of each criminal case by sending a copy of the first information report;
(b) send the police report under section 173 of the Code, to the concerned Prosecutor within the period prescribed by law; and
(c) if an investigation is not completed or cannot be completed within the time provided under the law, record reasons for the delay and inform the Prosecutor.
(2) An officer incharge of the police station or investigation officer shall, within the time specified by the Prosecutor, comply with the directions and remedy the defects pointed out by the Prosecutor in a police report under section 173 of the Code including report for cancellation of the first information report or request for discharge of an accused or suspect.
- Duties of the Prosecutors.– (1) The Prosecutor General shall–
(a) submit an annual report of the Service to the Government within three months of the conclusion of the calendar year to which the report pertains:
Provided that the Government shall lay the report before the Provincial Assembly within two months of its receipt; and
(b) keep the Government informed about the performance of the Service.
(2) A Prosecutor, working under the [directions] of the Prosecutor General, shall keep the Prosecutor General informed about the progress of all the cases under his charge.
(3) The District Prosecutor shall keep the Prosecutor General informed about the progress of all criminal cases in the district.
(4) A Prosecutor, working under the supervision and control of the District Public Prosecutor, shall keep the concerned District Public Prosecutor informed about the progress of all criminal cases under his charge.
(5) Where a Prosecutor is of the opinion that an application for enhancement of sentence or a revision should be filed in any case, he shall refer the matter to the District Public Prosecutor or the Prosecutor General, who shall take appropriate measures thereon under the law.
(6) In case of acquittal by a–
(i) Court in a district, the concerned District Public Prosecutor; and
(ii) Special Court, the concerned Prosecutor, shall report the details of the case to the Prosecutor General along with grounds for appeal and the Prosecutor General may request the Government for preferring an appeal.
(7) A Prosecutor shall maintain an independent file in the prescribed manner of each case assigned to him for prosecution.
(8) A District Public Prosecutor shall act as a member of the Criminal Justice Coordination Committee established under Article 110 of the Order.
(9) A Prosecutor shall–
(a) in all matters, perform his functions and exercise his powers fairly, honestly, with due diligence, in the public interest and to uphold justice;
(b) on receipt of the police report, final or interim, including a report for cancellation of first information report or request for discharge of an accused, scrutinize the same and process it under section 9;
(c) make such entries in the record and registers as may be prescribed;
(d) report to the District Public Prosecutor, details of investigations, if any, conducted in violation of law or instructions issued by the Prosecutor General or not completed in the time provided under law without reasonable cause and the District Public Prosecutor may inform the head of investigation and the Prosecutor General for appropriate action; and
(e) perform such other duties as may be assigned to him under this Act by the Government or the Prosecutor General.
Establishment of Process Serving Agency
- Establishment of agency.– (1) The Government may establish a criminal process serving agency to perform such process serving functions as may be prescribed.
(2) The criteria for appointment and terms and conditions of service of the members of criminal process serving agency shall be such, as may be prescribed.
- Power to make rules and regulations.– (1) The Government may, by notification, make rules for carrying out the purposes of this Act.
(2) The Prosecutor General may, subject to rules and with the prior approval of the Government, frame regulations for giving effect to the provisions of this Act.
- Terms and conditions of Service.– Subject to the provisions of this Act and the rules, members of the Service, including the staff, shall be appointed and governed under the Punjab Civil Servants Act, 1974 (VIII of 1974) and rules made thereunder.
(2) A Prosecutor shall perform functions under this Act in accordance with the code of conduct issued under subsection (1).]
- Indemnity.– (1) No suit, prosecution or other legal proceedings, shall lie against a Prosecutor in respect of anything done or attempted to be done by him in good faith under this Act.
(2) A Prosecutor appointed under this Act shall be deemed to be a public servant within the meanings of section 21 of the Pakistan Penal Code, 1860 (Act XLV of 1860).
- Removal of difficulties.– The Government may, by order, provide for the removal of any difficulty which may arise in giving effect to the provisions of this Act.
[20. Act to override other laws.– Sections 8, 9, 10, 11, 12, 13, 14, 15, 17, 18 and 19 of this Act shall override all other laws while other sections of the Act shall be read in conjunction with other laws.]
- Savings.– All appointments made, actions taken and notifications issued by the Government before the commencement of this Act, with respect to prosecution of criminal cases, shall be deemed to have been made, taken and issued under this Act.
KEYWORDS:- Recalling witness- private prosecutor-
A reading Sections 301 and 311 together keeping in mind a situation like the one on hand, it will have to be stated that the trial Court should have examined whether invocation of Section 311 was required to arrive at a just decision. In other words even if in the consideration of the trial Court invocation of Section 301(2) was not permissible, the anomalous evidence deposed by PW-18 having been brought to its knowledge should have examined the scope for invoking Section 311 and set right the position. Unfortunately, as stated earlier, the trial Court was in a great hurry in rejecting the appellant’s application without actually relying on the wide powers conferred on it under Section 311 Cr.P.C for recalling PW-18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime could be remedied. In this context, a reference to some of the decisions relied upon by the counsel for the appellant can be usefully made.
ACTS: SECTIONS 311 AND 301(2) OF Cr.P.C and Section 165 of the Evidence Act
DATE: on 5 December, 2013
Bench: Surinder Singh Nijjar, Fakkir Mohamed Kalifulla
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2044 OF 2013
(@ SLP (CRL.) No.1103 of 2012)
Sister Mina Lalita Baruwa …. Appellant
State of Orissa and others …. Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. Leave granted.
2. This appeal is directed against the order of the High Court of Cuttack in Criminal Miscellaneous Case No.1746 of 2011 dated 05.01.2012. The informant is the appellant before us. The informant is stated to be a Catholic Nun and according to her she was brutally assaulted, molested and also gang raped by the assailants who have been arrayed as accused in the session’s case which is being tried by the District & Sessions Judge in S.T. No.243 of 2010.
3. Briefly noting the contents in the charge-sheet, we find that one Swamy Laxmananda Saraswati was killed in Kandhamal District, which led to a communal violence in the entire district. The appellant and another Jesuit father by name Thomas Chellan and some others who were residents of Jesuit Home called ‘Divyajyoti Pastoral Centre’, Kanjamendi of district Kandhamal, fearing attack by the unruly mob took shelter in the house of one Prahallad Pradhan of village Kanjamendi on 24.08.2008.
4. On 25.08.2008, according to the appellant, around 1 p.m. a mob of about 40 to 50 persons came to the residence of the said Prahallad Pradhan, dragged her and other priests to the road while some of the members of the mob molested her and also brutally assaulted her. The appellant was stated to have been dragged to a nearby building called ‘Jana Vikash’ where the 8th accused, respondent No.9 herein, alleged to have raped her while the other accused aided for the commission of the said offence apart from molesting her.
5. The appellant was stated to have been subsequently handed over to the Block Development Officer of K. Nuagaon who in turn produced the appellant and the Jesuit father Chellan to the Inspector In-charge of Baliguda Police Station for necessary action. Thereafter, the appellant filed her complaint on 26.08.2008, whereafter she was medically examined at Baliguda Sub-Divisional Hospital and that her wearing apparels were sealed and sent to State FSL, Bhubneswar along with the exhibits collected by the medical officer. Those materials were stated to have been subsequently sent to CFSL Kolkata for DNA Profiling Test.
6. Appellant in her complaint stated that she would be in a position to identify the assailants though she was not knowing their names.
7. The issue with which we are now concerned relates to an alleged incorrect version stated by PW-18 before whom the Test Identification Parade was held on 05.01.2009. PW-18 was the Sub-Divisional Judicial Magistrate, Cuttack on that date. In the course of examination of PW- 18, the prescribed format of Schedule XLVII of Cr.P.C. along with the proceedings recorded by him were marked as Exhibit-8. The signatures of the witnesses were marked as Exhibits-8/1 to 8/5. The description of test identification parade, conducted by him, was marked as Exhibit- 8/6.
8. It was pointed out by Mr. Colin Gonsalves, learned senior counsel appearing for the appellant, that in Exhibit-8 either in the note or in the various columns of the format or in the proceedings recorded by PW-18 on 05.01.2009, there was no reference to any statement made by the appellant as regards the behaviour of respondent No.9 except mere identification of the suspects, namely, respondents No.3 and 9 and wrong identification of an under trial prisoner by name Santosh Kumar Swain. The learned senior counsel then brought to our notice a specific statement made by PW-18 in the course of the chief- examination which reads as under:
“Sister Mina Baruwa identified accused Santosh Patnaik as the said suspect gave her a slap, pulled her wearing Saree, squeezed her breasts and did not commit any other overt act.”
9. The grievance of the appellant is that while such an incorrect version was spoken to by PW-18 as an authorized officer who conducted the test identification parade, there was not even a suggestion put to PW-18 by the prosecution and thereby the said statement remained uncontroverted in so far as it related to the evidence of PW-18 vis-à-vis respondent No.9. The learned senior counsel submitted that since such a statement contained in the chief-examination of PW-18 was to the effect as though the appellant told him that apart from the alleged overt act of slapping, pulling of the saree worn by her and squeezing of the breasts nothing more was committed, it was imperative for the prosecution to have confronted PW-18 with particular reference to Exhbit-8 in order to make the recording of the evidence without any ambiguity or else it would seriously prejudice the case of the prosecution and the whole grievance of the appellant in having preferred the complaint as against the accused would be frustrated. The learned senior counsel further pointed out that when the appellant was cross-examined, she specifically refuted the above version of PW- 18 as under in paragraph 26:
“….It is not a fact that I stated before the S.D.J.M. Cuttack while identifying accused Santosh Kumar Patnaik that the said accused had given me a slap, pulled my saree and squeezed my breast and he did not commit any other offence. It is a fact that I did not state before the Magistrate when I identified accused Santosh @ Mitu Patnaik that the said accused sat on my thighs and raped me on the date of occurrence at Jana Vikash Kendra…..”
10. It was in the above stated background, according to the appellant, she approached the Special Public Prosecutor to set right the said deliberate misstatement of PW-18 in the evidence and confront PW-18 as to whatever stated by him was not reflected in the test identification parade report or the Annexure marked alongwith Exhibit-8. According to the appellant, the Special Public Prosecutor having not bothered to take any steps, an application was moved by the appellant herself before the learned trial Judge on 01.05.2011. In the proceedings of the learned Sessions Judge dated 16.05.2011 while making reference to the petition filed by the appellant for recalling PW-18, the learned trial Judge by stating that such a petition at the instance of the victim not having been filed by the Special Public Prosecutor, the same was rejected after hearing the appellant solely on the ground of maintainability.
11. Aggrieved by the said order, the appellant moved the High Court of Cuttack by way of Criminal M.C. No.1746 of 2011 in which the order impugned in this appeal came to be passed. The High Court while making reference to Section 301 of Cr.P.C., took the view that the appellant as an informant had a very limited role to play so far as the trial is concerned, that she could not have filed the petition to recall certain witnesses and that such a step was beyond the authority granted to an informant or a private person under Section 301 Cr.P.C. The High Court proceeded further and stated that reposing confidence in the trial Court that the learned trial Judge would eschew any fact not found on record or irrelevant and just decision would be rendered and further observed that it would however be open for the appellant to file a written submission in which event the trial Court should accept such written submission and consider the same while passing the judgment.
12. Mr. Colin Gonsalves, learned senior counsel while assailing the orders impugned in this appeal submitted that in a case of this nature where the victim suffered a diabolical crime at the hands of the respondent- accused and the Judicial Magistrate who was expected to depose before the Court in exactitude of what actually transpired in the course of the conduct of test identification parade, made a deliberate misstatement in contravention to what was found in Exhibit-8 which was a record prepared by him, it was incumbent upon the prosecution and also the Court to have ensured that no part of the evidence was allowed to be placed that would mislead the Court or which totally conflicts with the document, the author of which is the witness himself. The learned senior counsel submitted that in the light of the various decisions of this Court on interpretation of Section 301 read along with Section 311 of Cr.P.C and also on the locus of the appellant as a victim to seek for appropriate steps to be taken to rectify such grave error in the recording of evidence, submitted that the learned trial Judge, as well as the High Court, committed a serious error of law.
13. The learned senior counsel submitted that once the appellant brought to the notice of the learned Special Public Prosecutor and the learned trial Judge such an error apparent on the face of the record, having regard to the enormous powers vested with the learned trial Judge under Section 311 Cr.P.C., appropriate steps should have been taken to correct the errors by directing the Special Public Prosecutor to confront PW-18 on the particular statement by recalling him. The learned senior counsel, therefore, contended that the failure of the trial Judge, as well as, the High Court in doing so while passing the orders impugned in this appeal, persuaded the appellant to knock at the doors of this Court. Reliance was placed upon the decisions in Mohanlal Shamji Soni vs. Union of India and another – (1991) Supl.1 SCC 271, Rajendra Prasad vs. Narcotic Cell – (1999) 6 SCC 110, Sidhartha Vashisht alias Manu Sharma vs. State (NCT of Delhi) – (2010) 6 SCC 1, K. Pandurangan vs. S.S.R. Velusamy and another – (2003) 8 SCC 625, J.K. International vs. State (Govt. of NCT of Delhi) and others – (2001) 3 SCC 462 and Suga Ram alias Chhuga Ram vs. State of Rajasthan and others – (2006) 8 SCC 641.
14. The learned standing counsel appearing for the first respondent-State would only contend that the appellant never ever approached the Special Public Prosecutor in order to work out the remedies under Section 301 Cr.P.C. and, therefore, the order of the learned trial Judge, as well as the High Court, cannot be found fault with. The learned standing counsel only contended that PW-18 was examined on 30.07.2010 while the present application at the instance of the appellant was filed belatedly on 11.05.2011, nearly after 10 months and therefore, on the ground of delay as well the grievance of the appellant could not be redressed.
15. On behalf of 9th respondent, Mr. Rana Mukherjee, learned counsel by relying upon Shiv Kumar vs. Hukam Chand and another – (1999) 7 SCC 467, contended that the appellant had no locus to seek the remedy as prayed for before the trial Judge and the High Court.
16. Having heard the learned senior counsel for the appellant as well as the Public Prosecutor, the State counsel and counsel for the 9th respondent and having perused Exhibit-8, the evidence of PW-18 and PW- 25, who was the victim, the order of the learned trial Judge, as well as that of the High Court, we are of the considered view that both the learned trial Judge, as well as the High Court, miserably failed to come alive to the situation while dealing with a case of this nature where a charge under Section 376(2)(g) has been alleged against the accused in which PW-18 a Judicial Officer as a statutory authority who held the identification parade made a totally blatant and wrong statement not in consonance with the record of identification parade, namely, Exhibit-8 and thereby provided scope for serious illegality being committed for dispensing justice. At the very outset, however, we must state that whatever views which we express in the judgment are mainly pertaining to the nature of documentary evidence as recorded prior to the examination of PW-18 and PW-25, as well as, the oral evidence in the course of their examination before the trial Court.
17. Having perused the said evidence with particular reference to the issue brought to the notice of this Court, we are of the firm view that the inability of the trial Court in failing to take appropriate action as and when it was brought to its notice about the fallacy in the oral version, would certainly cause a serious miscarriage of justice, if allowed to remain. Unfortunately, in our considered view, the High Court appears to have adopted a very casual approach instead of attempting to find out as to the appropriate procedure which the trial Court should have followed in a situation like this. The High Court also committed a serious illegality in merely stating that under Section 301 Cr.P.C. there is no scope for a victim as a private party to take any effective step to rectify a serious fallacy committed by a statutory witness who is supposed to maintain cent per cent neutrality while giving evidence before the Criminal Court. Where the said witness is a Judicial Officer whose version before the Court carries much weight, by virtue of his status as a Judicial Officer while acting as a statutory witness, namely, as an officer who was authorized to hold a test identification parade, it was incumbent upon such witness to maintain utmost truthfulness without giving any scope for any party to gain any advantage by making a blatantly wrong statement contrary to records. We, therefore, find serious irregularity in the orders impugned in this appeal.
18. We are convinced that the grievances as projected by the appellant as a victim, who was a victim of an offence of such a grotesque nature, in our considered view, the trial Court as well as the High Court instead of rejecting the application of the appellant by simply making a reference to Section 301 Cr.P.C. in a blind folded manner, ought to have examined as to how the oral evidence of PW-18 which did not tally with Exhibit-8, the author of whom was PW-18 himself, to be appropriately set right by either calling upon the Special Public Prosecutor himself to take necessary steps or for that matter there was nothing lacking in the Court to have remedied the situation by recalling the said witness and by putting appropriate Court question. It is well settled that any crime is against the society and, therefore, if any witness and in the case on hand a statutory witness happened to make a blatantly wrong statement not born out from the records of his own, we fail to understand why at all the trial Court, as well as the High Court, should have hesitated or adopted a casual approach instead of taking appropriate measures to keep the record straight and clear any ambiguity in so far as the evidence part was concerned and also ensure that no prejudice was caused to any one. In our considered view, the Courts below should have made an attempt to reconcile Sections 301 and 311 Cr.P.C. in such peculiar situations and ensured that the trial proceeded in the right direction.
19. In criminal jurisprudence, while the offence is against the society, it is the unfortunate victim who is the actual sufferer and therefore, it is imperative for the State and the prosecution to ensure that no stone is left unturned. It is also the equal, if not more, the duty and responsibility of the Court to be alive and alert in the course of trial of a criminal case and ensure that the evidence recorded in accordance with law reflect every bit of vital information placed before it. It can also be said that in that process the Court should be conscious of its responsibility and at times when the prosecution either deliberately or inadvertently omit to bring forth a notable piece of evidence or a conspicuous statement of any witness with a view to either support or prejudice the case of any party, should not hesitate to interject and prompt the prosecution side to clarify the position or act on its own and get the record of proceedings straight. Neither the prosecution nor the Court should remain a silent spectator in such situations. Like in the present case where there is a wrong statement made by a witness contrary to his own record and the prosecution failed to note the situation at that moment or later when it was brought to light and whereafter also the prosecution remained silent, the Court should have acted promptly and taken necessary steps to rectify the situation appropriately. The whole scheme of the Code of Criminal Procedure envisages foolproof system in dealing with a crime alleged against the accused and thereby ensure that the guilty does not escape and innocent is not punished. It is with the above background, we feel that the present issue involved in the case on hand should be dealt with.
20. Keeping the said perspective in mind, we refer to Sections 301 and 311 of Cr.P.C.
“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.
311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
21. Having referred to the above statutory provisions, we could discern that while under Section 301(2) the right of a private person to participate in the criminal proceedings has got its own limitations, in the conduct of the proceedings, the ingredients of Section 311 empowers the trial Court in order to arrive at a just decision to resort to an appropriate measure befitting the situation in the matter of examination of witnesses. Therefore, a reading Sections 301 and 311 together keeping in mind a situation like the one on hand, it will have to be stated that the trial Court should have examined whether invocation of Section 311 was required to arrive at a just decision. In other words even if in the consideration of the trial Court invocation of Section 301(2) was not permissible, the anomalous evidence deposed by PW-18 having been brought to its knowledge should have examined the scope for invoking Section 311 and set right the position. Unfortunately, as stated earlier, the trial Court was in a great hurry in rejecting the appellant’s application without actually relying on the wide powers conferred on it under Section 311 Cr.P.C for recalling PW-18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime could be remedied. In this context, a reference to some of the decisions relied upon by the counsel for the appellant can be usefully made.
22. In the decision reported in J.K. International (supra), this Court considered the extent to which a complainant can seek for the redressal of his grievances in the on going criminal proceedings which was initiated at the behest of the complainant. Some of the passages in paragraphs 8, 9, 10 and 12 can be usefully referred to which are as under:
8.……What is the advantage of the court in telling him that he would not be heard at all even at the risk of the criminal proceedings initiated by him being quashed. It is no solace to him to be told that if the criminal proceedings are quashed he may have the right to challenge it before the higher forums.
9. The scheme envisaged in the Code of Criminal Procedure (for short “the Code”) indicates that a person who is aggrieved by the offence committed, 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…….
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.
12.……The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them.” (Emphasis Added)
23. In the famous Best Bakery case in Zahira Habibullah H. Sheikh and another vs. State of Gujarat and others – (2004) 4 SCC 158, this Court has reminded the conscientious role to be played by the criminal Courts in order to ensure that the Court is alive to the realities, realizing its width of power available under Section 311 of the Cr.P.C read along with Section 165 of the Evidence Act. The relevant part of the said decision can be culled out from paragraphs 43, 44, 46 and 56, which are as under:
“43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence-collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e.: (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, “any court”, “at any stage”, or “any enquiry or trial or other proceedings”, “any person” and “any such person” clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code…….
46. …….Section 311 of the Code does not confer on any party any right to examine, cross-examine and re-examine any witness. This is a power given to the court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case.
56. As pithily stated in Jennison v. Baker: (All ER p. 1006d) “The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.” Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (See Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble.)” (Emphasis added)
24. The said decision was also subsequently followed in a recent decision of this Court in Sidhartha Vashisht alias Manu Sharma (supra), wherein one sentence in paragraph 188 is relevant for our purpose, which reads as under:
“188. It is also important to note the active role which is to be played by a court in a criminal trial. The court must ensure that the Prosecutor is doing his duties to the utmost level of efficiency and fair play. This Court, in Zahira Habibulla H. Sheikh v. State of Gujarat, has noted the daunting task of a court in a criminal trial while noting the most pertinent provisions of the law…..
25. In one of the earlier decisions of this Court in Mohanlal Shamji Soni (supra), wherein Section 540 of Cr.P.C of 1898 which corresponds with Section 311 Cr.P.C of 1973, this Court has pithily stated the purport and intent of the said section, which is to be worked out at times of need by the Criminal Courts in order to ensure that justice always triumphs. Paragraph 16 of the said decision is relevant for our purpose which reads as under:
“16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision — either discretionary or mandatory — depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps v. S., which reads thus:
“… it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly …. Counsel seek only for their client’s success; but the judge must watch that justice triumphs.” (Emphasis added)
26. In the decision in Rajendra Prasad (supra), this Court pointed out the distinction between lacuna in the prosecution and a mistake or error inadvertently committed which can always be allowed to be set right by permitting parties concerned by the Criminal Courts in exercise of its powers conferred under Section 311 Cr.P.C or under Section 165 of the Evidence Act. In paragraph 7, this Court has clarified as to what is a lacuna which is distinct and different from an error committed by a public prosecutor in the course of trial. The relevant part of the said paragraph reads as under:
“……A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses…….”
27. Again in paragraph 8, this Court has pointed out as to the duty of the Criminal Court to allow the prosecution to correct such errors in the interest of justice. Paragraph 8 of the said judgment reads as under:
“8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.” (Emphasis added)
28. On behalf of the 9th respondent, Mr. Rana Mukherjee, learned counsel placed reliance upon the decision in Shiv Kumar (supra). By relying upon the said decision the learned counsel contended that the complainant cannot be permitted to conduct the prosecution by simply relying upon Section 301 of Cr.P.C. When we consider the said submission of the learned counsel with reference to the decision relied upon by him, we find that the said decision can have no application to the case on hand. That was a case where the complainant engaged his counsel and wanted to conduct the chief examination when he was to be examined as a witness for the prosecution. The said prayer of the complainant was objected to on behalf of the accused on the premise that a private counsel cannot conduct prosecution in a session’s trial. Though the trial Court allowed an application to be filed on behalf of the complainant, which was also endorsed by the public prosecutor, the revision filed by the accused was allowed and the order of the trial Court was set aside. While dealing with the said situation, this Court observed as under in paragraph 14:
“14. 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 that 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.”
29. As stated by us earlier the facts involved in the said case are drastically different from what is prevailing in the case on hand. From what has been stated in paragraph 14 of the said decision, when the complainant wanted to conduct the case of the prosecution itself, though with the permission of the public prosecutor, the Court has found that such a course, though was permissible to some extent before the Magistrate under Section 302 of Cr.P.C, the same cannot be permitted to the extent allowed to by the Court of Sessions by invoking Section 301 of Cr.P.C. We, therefore, do not find any scope to apply the said decision to the facts of this case.
30. Learned counsel for the State relied upon the decision in Umar Mohammad and others vs. State of Rajasthan – (2007) 14 SCC 711, in particular paragraph 38 of the said decision, and contended that even by invoking Section 311 of Cr.P.C. the Court cannot come to the aid of the appellant. On a reading of paragraph 38, we do not find any scope at all to apply the ratio laid down in the said decision to the case on hand. That was a case where PW-1 who was examined in Court in July 1994 later on filed an application in May 1995 stating that five accused persons named in the case were innocent and, therefore, they should be discharged by relying upon Section 311 of Cr.P.C. The said application was rejected by the trial Court, as well as by the High Court in revision. Finding that 311 of Cr.P.C has no application to the fact of the said case, this Court held that PW-1 having been won over by virtue of the fact that the application came to be filed after nine months of his chief examination, there was absolutely no bona fides and the rejection of the application was therefore well in order.
31. Having noted the various decisions relied upon by the learned counsel for the appellant referred to above on the interpretation of Sections 301 and 311 of Cr.P.C, as well as Section 165 of the Evidence Act, it will have to be held that the various propositions laid down in the said decisions support our conclusion that a Criminal Court, while trying an offence, acts in the interest of the society and in public interest. As has been held by this Court in Zahira Habibullah H. Sheikh (supra), a Criminal Court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers under Section 311 of Cr.P.C, as well as Section 165 of the Evidence Act, a trial Court in a situation like the present one where it was brought to the notice of the Court that a flagrant contradiction in the evidence of PW-18 who was a statutory authority and in whose presence the test identification parade was held, who is also a Judicial Magistrate, ought to have risen to the occasion in public interest and remedied the situation by invoking Section 311 of Cr.P.C, by recalling the said witness with the further direction to the public prosecutor for putting across the appropriate question or court question to the said witness and thereby set right the glaring error accordingly. It is unfortunate to state that the trial Court miserably failed to come alive to the realities as to the nature of evidence that was being recorded and miserably failed in its duty to note the serious flaw and error in the recording of evidence of PW-18. In this context, it must be stated that the prosecutor also unfortunately failed in his duty in not noting the deficiency in the evidence. The observation of the High Court while disposing of the revision by making a casual statement that the appellant can always file the written argument equally in our considered opinion, was not the proper approach to a situation like the present one. What this court wishes to ultimately convey to the courts below is that while dealing with a litigation, in particular while conducting a criminal proceeding, maintain a belligerent approach instead of a wooden one.
32. Having noted the above-mentioned decisions laid before us by the learned counsel for the parties on the scope of Section 311 Cr.P.C., we wish to refer a recent decision rendered by this Court in Rajaram Prasad Yadav vs. State of Bihar and another – AIR 2013 SC 3081, wherein in paragraph 14 the law has been stated as under:
14. A conspicuous reading of Section 311, Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. By using the said expression “any” as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case………. Therefore, a reading of Section 311, Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311, Cr.P.C. It is, therefore, imperative that the invocation of Section 311, Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.
33. Having regard to our above conclusions we find that the order of the trial Court, as well as that of the High Court cannot be sustained and while setting aside the same, we direct the trial Court to recall PW- 18 and call upon the prosecutor to cross-examine the said witness on the aspect relating to the statement, namely, “Sister Mina Baruwa identified accused Santosh Patnaik as the said suspect gave her a slap, pulled her wearing Saree, squeezed her breasts and did not commit any other overt act” vis-à-vis the contents of the statement recorded by PW-18 in Exhibit-8 at the time of test identification parade when the appellant as PW-25 identified the respondent No.9 as has been prayed for on behalf of the appellant and also provide an opportunity to the appellant to file the written arguments on her behalf as provided under Section 301 of Cr.P.C. Since the trial was withheld by virtue of the pendency of this appeal till this date, the trial Court is directed to comply with the directions as above and conclude the proceedings in accordance with law expeditiously, preferably within three months from the date of production of the copy of this order. The appeal stands allowed on the above terms.
[Surinder Singh Nijjar]
[Fakkir Mohamed Ibrahim Kalifulla]
December 05, 2013.
KEYWORDS:- Revision by private person –
Jurisdiction of the High Court to entertain revision against acquittal is not barred, but is severally restricted. The High Court, in its revisional power, would not, ordinarily, interfere with the judgment of acquittal passed by the trial court unless there has been apparent error of law or procedure or where the public justice requires interference for correction of manifest illegality or prevention of gross miscarriage of justice
AIR 2008 SC 1165 : (2008) 2 SCR 185 : (2008) 3 SCC 423 : JT 2008 (2) SC 112 : (2008) 2 SCALE 122 : (2008) CriLJ SC 1627
(SUPREME COURT OF INDIA)
|Johar and OTHERS||Appellant|
|Mangal Prasad and ANOTHER||Respondent|
(Before : S. B. Sinha And V. S. Sirpurkar, JJ.)
Criminal Appeal No. 215 of 2008 (arising out of SLP (Cri.) No. 2014 of 2007), Decided on : 30-01-2008.
Penal Code, 1860—Sections 148, 302, 120-B, 323, 149, 196, 34 and 324—Criminal Procedure Code, 1973—Sections 401(3), 397, 401 and 439.
Counsel for the Parties:
Fakhruddin, Sr. Advocate, Abdul Karim Ansari, Abdul Qadri and Aftab All Khan, for Appellants
Ms. Vibha Datta Makhija, for Respondents.
S. B. Sinha, J—Leave granted.
2. Appellants were charged for commission of offences under Sections 148 and 302 of the Indian Penal Code and in the alternative under Section 302/149 and Section 120-B of the Indian Penal Code. They were, however, convicted for commission of an offence under Section 323 read with Section 34 of the Indian Penal Code only, recording that as accused Nos. 1 to 4 had only caused simple injuries to the deceased Umashankar, the provisions of Sections 148 and 149 of the Indian Penal Code were not attracted.
3. The State did not prefer any appeal there against. The complainant/respondent, however, filed a revision application before the High Court. The High Court went into the evidence adduced on behalf of the prosecution. In regard to the deposition of the official witnesses including Autopsy Surgeon it was commented :-
“10. If a public servant is corruptly (sic) makes a report in a judicial proceeding it will be offences under section 193, IPC and section 196, IPC and preparation of document with an intention to save person from punishment, it will be an offence falling under section 196, IPC. Thus, willful act of the Doctor in not referring to other injuries in the post-mortem report discloses his intention to protect the respondents who are guilty of commission of murder. Witnesses were firm on the point of beating of deceased by lathi and number of injuries received by the deceased. It is held that post-mortem report is incomplete report prepared by the doctor to give undue advantage to the accused. Appropriate steps for prosecution of PW9 Dr.Y.K. Malaiya be initiated for intentionally preparing false evidence.” It was opined that having regard to the nature of deposition of the Autopsy Surgeon, the trial Court committed a grave error in ignoring the other relevant materials brought on records to pronounce a judgment of acquittal in favour of the respondents (appellants herein). It was furthermore held that the doctor had willfully suppressed the head injury and was thus guilty of dereliction of duty. Re-appreciating the evidence of the prosecution witnesses, it was held :-
“It is natural that when a person is surrounded by number of accused it is difficult for eye-witness to describe the author of each and every injury. In para 16 of cross-examination, this witness has clarified that he has seen the body of injured and he found that Umashankar was having lathi injuries on his entire body and no place on his body was left where he had not received injuries by lathi.”
4. On the premise that the learned trial Judge has mis-appreciated the evidence, the revision application was allowed, directing :-
“22. In the result, judgment of acquittal passed by the trial court is set aside and the case is remanded to the trial court to pass the judgment on the basis of evidence on record for each offence keeping in mind evidence of eye-witnesses wherein it is stated that deceased had suffered injuries on the whole body. The fact is also referred in Dehati Naleshi and Panchnama of dead body Ex.P/3. Evidence of doctor will not prevail over the eye-witness account in this case. This is a case under section 302, IPC and the intention of all the respondents was to cause death of deceased. Trial court shall also examine and pass necessary orders against the concerned doctor for preparing document in order to give undue benefit to the accused”.
5. We may, however, before embarking upon the contentions raised before us by the learned counsel for the parties place on record that one of the accused persons, namely Roshan, had preferred an appeal before the High Court of Madhya Pradesh at Jabalpur and by a judgment and order dated 18th November, 2003, it while upholding his conviction under Section 323 read with Section 34 of the Indian Penal Code set him free on probation on his furnishing a personal bond for ` 3,000/- (Rupees there thousand only) with one surety of the like amount. The said judgment and order has attained finality.
6. Mr. Fakhruddln, the learned Senior counsel appearing for the appellant, submitted that the High Court committed a manifest illegality in passing the impugned judgment which is in the teeth of sub-section (3) of Section 401 of the Code of Criminal Procedure, 1973.
7. Ms. Vibha Datta Makhija, the learned counsel appearing on behalf of the respondent-State, on the other hand, urged that it is not a case where the High Court converted a judgment of acquittal to a judgment of conviction in exercise of its revisional jurisdiction but merely remitted the matter to the trial court for consideration afresh, this Court should not interfere therewith.
8. The State did not prefer any appeal from the judgment of the learned Trial Judge. From the proceedings of the High Court, it appears that the State was not even made a party in the criminal revision application. Public Prosecutor, however, represented the State before the High Court. Nobody interestingly appeared on behalf of the complaint-revisionist.
9. Revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 of the Code of Criminal Procedure is limited. The High Court did not point out any error of law on the part of the learned Trial Judge. It was not opined that any relevant evidence has been left out of its consideration by the court below or irrelevant material has been taken into consideration. The High Court entered into the merit of the matter. It commented upon the credentiality of the Autopsy Surgeon. It sought to re-appreciate the whole evidence. One possible view was sought to be substituted by another possible view.
10. Sub-section (3) of Section 401 reads as under :-
“401(3). Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.”
Technically, although Ms. Makhija may be correct that the High Court has not converted the judgment of acquittal passed by the learned Trial Court to a judgment of conviction, but for arriving at a finding as to whether the High Court has exceeded its jurisdiction or not, the approach of the High Court must be borne in mind. For the said purpose, we may notice a few precedents.
11. In D. Stephens v. Nosibolla:  1 SCR284, this Court opined :
“10. The revisional jurisdiction conferred on the High Court under section 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record.”
12. The same principle was reiterated in Logendra Nath Jha and others vs. Polailal Biswas, (1951) SCR 676 stating:
“……..Though sub-section (1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by section 423, sub-section (4) specifically excludes the power to “convert a finding of acquittal into one of conviction. This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterizing the judgment of the trial court as “perverse” and “lacking in perspective”, the High Court cannot reverse pure findings of fact based on the trial Court’s appreciation of the evidence In the case. That is what the learned Judge in the court below has done, but could not, in our opinion, properly do on an application in revision filed by a private party against acquittal………”
13. In the instant case the High Court not only entered into the merit of the matter but also analysed the depositions of all the witnesses examined on behalf of the prosecution. It, in particular, went to the extent of criticizing the testimony of Autopsy Surgeon. It relied upon the evidence of the so-called eye-witnesses to hold that although appellants herein had inflicted injuries on the head of the deceased, Dr. Y.K. Malaiya, PW-9, deliberately suppressed the same. He was, for all intent and purport, found guilty of the offence under Sections 193 and 196 of the Indian Penal Code. The Autopsy Surgeon was not cross-examined by the State. He was not declared hostile. The State did not even prefer any appeal against the judgment.
14. In the absence of any such injury on the vital part of the body, the learned trial Judge, upon analyzing the evidence brought on record by the prosecution, held that only four accused had committed the offence under Section 323 read with Section 34 alone. We see no reason as to how the findings of the trial Judge can be said to be perverse. The learned trial Judge in arriving at his conclusion noticed:-
(i) Names of some of the appellants were not stated in the first information report.
(ii) Some of the accused persons were not present at the time of commission of offence, as their plea of alibi was acceptable.
(iii) The story of recovery of lathis from some of the accused is doubtful.
(iv) Purported recovery of lathi by the investigating officer without any disclosure statement having been made by the concerned accused, was not relevant.
(v) Some of the accused did not have any dispute whatsoever with the complainant side, as such they had no motive to commit the crime.
(vi) Only because some of the accused were present at the time of commission of the offence, having regard to the fact that the incident took place in a very small village, their presence at the time of occurrence by itself cannot lead to an inference that they participated therein, particularly when prosecution witnesses did not name them.
(vii) No independent witness had been examined by the prosecution despite the fact that a large number of persons witnessed the incident.
15. Upon analyzing the entire evidence on record, the learned trial Judge held :-
“58. In view of the discussion and analyses made hereinabove prosecution has proved that accused persons Nos. 1 to 4 i.e. Johar, Ruplal, Roshan and Santosh inflicted simple injuries to deceased Umashankar. Against accused persons offence under Sections 148, 302 r/w 149, IPC have been levelled but in the incident only accused Nos. 1 to 4 have committed and thus participation of the number of accused is proved to be four only and under sections 148 and 149, IPC the accused persons minimum remained to be five. As such against accused Nos. 1 to 4 offence under Sections 148 and 149 are not proved.”
16. Evidently the High Court raised a presumption that Autopsy Surgeon deliberately did not disclose the ante mortem head injury purported to have been suffered by the deceased.
17. The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally restricted, particularly when it arises from a judgment of acquittal.
18. Ms. Makhija is correct that sub-section (4) of Section 378 of the Code of Criminal Procedure was not available to the first informant but the same by itself would not mean that in absence of any appeal preferred by the State, the limited jurisdiction of the court should be expanded.
19. We may notice a few of the decisions of this Court which are binding on us.
In K. Chinnaswamy Reddy v. State of Andhra Pradesh (1963) 3 SCR 412, this Court observed :-
“It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of S. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised.”
In Mahendra Pratap Singh v. Sarju Singh and Anr. (1968) 2 SCR 287 this Court stated the law thus :-
“8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens v. Nosibolla (1951) SCR 284, only two grounds were mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misappreciation of evidence. Again, in Logendranath Jha and others v. Shri Polailal Biswas [ SCR. 676], this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is “perverse” or “lacking in true correct perspective”. It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy v. State of Andhra Pradesh, it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court.”
In Janata Dal vs. HS Chowdhary (1992) 4 SCC 305, this Court stated that the object of the revisional jurisdiction was to confer power on superior criminal courts to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment.
In State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659, this Court observed :-
“21. In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he was required to exercise in a revision under Section 397, Cr. P.C. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party i.e. Ram Briksh Singh v. Ambika Yadav. That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.”
The judgment of Ram Briksh mentioned above, has since been reported as Ram Briksh Singh vs. Ambika Yadav (2004) 7 SCC 665, wherein it has been observed :-
“12. For the aforesaid reasons, we are unable to accept the contention that the High Court has reappreciated the evidence. The High Court has only demonstrated as to how the material evidence has been overlooked leading to manifest illegality resulting in gross miscarriage of justice.”
It was, therefore, relevant in the fact-situation obtaining therein.
Yet again in Satyajit Banerjee vs. State of W.B. (2005) 1 SCC 115, this Court has, while exercising its jurisdiction under Section 142 of the Constitution of India, expressed a note of caution stating :-
“22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice.”
20. We may notice that prohibition contained in sub-section (3) of Section 401 refers to a finding and not the conclusion.
A bare perusal of the judgment of the High Court clearly demonstrates that in effect and substance the finding of the learned trial Judge has been reversed. While hearing the matter afresh in terms of the direction of the High Court, the learned Trial Judge would be bound by the observations made therein and thus, would have no option but to convict the appellants.
21. Not only the evidence of the prosecution witnesses has been relied upon and that of the Autopsy Surgeon has been disbelieved but the Trial Judge has also been asked to initiate an appropriate proceeding against him.
22. We have, therefore, no hesitation to hold that the High Court exceeded its jurisdiction in view of the fact that the judgment of the learned Trial Judge could not be termed to be a perverse one.
23. The Trial Court might be wrong as regards analyzing the prosecution evidence but then it had not relied upon the evidence of the eye-witnesses only having regard to the opinion of medical expert. The learned Trial Judge considered the plea of alibi on the part of some of the accused and accepted the same. The High Court did not bestow any consideration in this behalf. It also failed to take into consideration that even bystanders have been implicated in the matter.
24. Unfortunately, the High Court did not meet the reasonings of the learned trial Judge which was its bounden duty.
25. Even the effect of the order dated 18-11-2003 passed by the High Court in the appeal preferred by Roshan was not taken into consideration.
The said order attained finality. If Roshan was guilty of commission of an offence under Section 323 of the Indian Penal Code, we fail to see any reason as to how others could be held guilty for commission of the offence under Section 302 thereof.
In any event, the judgment passed in favour of Roshan could not have been set aside indirectly which could not be done directly.
26. For the reasons abovementioned, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed.
Criminal Procedure Code under Amendment of 2009 ( W.E.F 31.12.2009) recognized the place of Victim and Victim’s role in prosecution and appeal.
Definition of Victim
U/S 2 [wa]- “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir; [ POSITION CHANGED]
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.
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.
302. Permission to conduct prosecution – (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission :
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.
APPEAL BY VICTIM
372. No appeal to lie unless otherwise provided. – No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.] [ POSITION CHANGED]
REVISION BY VICTIM
397. Calling for records to exercise powers of revision. – (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation. – All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
399. Sessions Judge’s powers of revision. – (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so.
But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Quote of Justice Sutherland, Berger v. United States,
295 U.S. 88 (1935)
1. In M/S J k International vs State, Govt Of NCT Of Delhi And Ors … DECIDED on 23 February, 2001 the Apex Court shifted it`s position adopted in Shiv Kumar vs Hukam Chand And Anr [ SC 1988 AUGUST]
BACK GROUND OF SIVA KUMAR : “That was a case where the complainant engaged his counsel and wanted to conduct the chief examination when he was to be examined as a witness for the prosecution. The said prayer of the complainant was objected to on behalf of the accused on the premise that a private counsel cannot conduct prosecution in a session’s trial. Though the trial Court allowed an application to be filed on behalf of the complainant, which was also endorsed by the public prosecutor, the revision filed by the accused was allowed and the order of the trial Court was set aside”. [Sister Mina Lalitha Baruwa vs State Of Orissa & Ors on 5 December, 2013
2.The Apex Court, in the case of Ramakant Rai vs. Madan Rai and Others, reported in (2003) 12 SCC 395, recognized the right of a private person to file an appeal against order of acquittal passed by a High Court. In case of Masurddin Mushni vs Md. Siraj & Ors, reported in (2008) 8 SCC 434, the Supreme Court held that a First Information Report cannot bequashed by Court at the instance of accused without giving notice to informant.
3. In A.I.R. 1987 Supreme Court 117, (Chandavarkar Sita Ratna Rao v. Ashalata S. Guram), observed that the golden rule is that the words of a statute must prima facie give their ordinary meaning and the aforesaid principle should not be departed unless it can be shown that the legal context in which the words are used requires different meaning. A bare perusal of definition of „victim‟ manifests that the term has not been used in a restrictive sense and would include both the complainant and the informant so long it satisfies qualifying condition in the proviso that he must have suffered loss or injury by act of omission or commission of the accused.
4. In Subhash Chandra vs State (Delhi Administration), reported in (2013) 2 SCC 17, that there is no distinction between a Complaint Case filed by a private person and a public servant and, as such, the appeal against acquittal, in every single complaint case, would lie under Section 378(4) after seeking Special Leave of the High Court.
KEYWORDS:- PRIVATE PROSECUTOR- VICTIM-NOTICE-
- 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.
- The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him.
Date :- 23 February, 2001
Bench: K.T. Thomas, R.P. Sethi, B.N. Agarwal
SUPREME COURT OF INDIA
M/S JK INTERNATIONAL Vs. STATE, GOVT OF NCT OF DELHI AND OTHERS
CASE NO : Appeal (crl.) 222 of 2001
DATE OF JUDGMENT: 23/02/2001
The grievance of the appellant is simple and apparently innocuous that he too may be heard by the court. But the High Court rolled down the shutters before him saying he has no right to be heard and the court has no power to permit him to be heard. As his grievance was compounded by such denial he has filed this appeal by special leave.
A person accused of certain offences moved the High Court of Delhi for quashing the criminal proceedings pending against him in a magistrates court. Appellant informed the High Court that the criminal proceedings were initiated at his behest and hence he too may be heard before the criminal proceedings are to be quashed. A learned single judge of the High Court of Delhi, while foreclosing the appellant from doing so, observed that the Court is of the considered opinion that the right of the complainant to be heard ceases once cognizance is taken and he cannot thereafter continue to participate in the proceedings as if he were the aggrieved party who must have his say in proceedings.
The background is the following. Appellant filed a complaint before the police alleging that respondents 2 & 3 committed offences of criminal breach of trust and cheating. As he felt that no action was taken by the police on the complaint he filed a writ petition before the high Court for a direction to register FIR. However, before the writ petition was disposed of, the police informed the court that the FIR was already registered on the complaint filed by the appellant. Respondents then moved the High Court in a writ petition for quashing the FIR, and the appellant was also allowed to be impleaded in that writ petition. For some reasons the said writ petition was not followed up by the respondents and it was subsequently withdrawn.
The police, after investigation, filed a charge sheet against respondents for offences under Section 420, 406 and 120B of the IPC and the court issued process to the respondents requiring them to appear before the Court on 31.5.2000. At that stage respondents filed the present petition before the High Court praying for quashing the criminal proceedings pending before the magistrate court pursuant to the aforesaid charge-sheet filed by the police. In the writ petition the appellant was not made a party and therefore a petition was filed in the High Court for impleading the appellant as a party. The main plank of the appellant before the High Court was the decision of this court in Bhagwant Singh vs. Commissioner of Police [1985 (2) SCC 537]. The learned single judge of the High Court of Delhi felt that the observations made by this Court in an earlier decision (Thakur Ram vs. State of Bihar [AIR 1966 SC 911]) are more appropriate to the fact situation and basing on those observations learned single judge rejected the petition filed by the appellant before the High Court.
The observations of this court in Thakur Ram which persuaded the learned single judge to shut the door before the appellant are the following:
In a case which has proceeded on a police report a private party has really no locus standi. No doubt the terms of Section 435 (old Cr.P.C.) 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, has 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.
That was a case in which the Public Prosecutor filed an application before a magistrate in a pending trial for amending the charge by incorporating two more offences which are exclusively triable by the court of sessions and prayed for the case to be committed by the magistrate to the sessions court. The magistrate dismissed the application, but prosecution did not challenge the order passed by the magistrate. However, the informant in that case filed a revision before the sessions court under Section 435 of the Code of Criminal Procedure 1898 (old Code). The sessions judge directed the magistrate to commit the case to the court of sessions. The said order of the sessions court was challenged by the accused before the High Court, but that challenge was unsuccessful.
Then the accused moved this court by special leave. In the above background a three-judge bench of this court considered the scope of Sections 435 and 437 of the old Code. In the said context this Court made the observation which has been quoted by the learned single judge as extracted above. When the Public prosecutor is in management of the prosecution of a case a private person trying to interject in the case to re- channelise the course of the prosecution has been disapproved by this Court.
But the situation here is different, as the accused approached the High Court for quashing the criminal proceedings initiated by the appellant. It may not be that the complainant should have been made a party by the accused himself in the petition for quashing the criminal proceedings, as the accused has no such obligation when the case was charge-sheeted by the police. It is predominantly the concern of the State to continue the prosecution. But when the complainant wishes to be heard when the criminal proceedings are sought to be quashed, it would be a negation of justice to him if he is foreclosed from being heard even after he makes a request to the court in that behalf. What is the advantage of the court in telling him that he would not be heard at all even at the risk of the criminal proceedings initiated by him being quashed. It is no solace to him to be told that if the criminal proceedings are quashed he may have the right to challenge it before the higher forums.
The scheme envisaged in the Code of Criminal procedure (for short the Code) indicates that a person who is aggrieved by the offence committed, 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:
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.
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.
In view of such a scheme as delineated above how can it be said that the aggrieved private person must keep himself outside the corridors of the Court when the case involving his grievance regarding the offence alleged to have been committed by the persons arrayed as accused is tried or considered by the Court. In this context it is appropriate to mention that when the trial is before a magistrate court the scope of any other private person intending to participate in the conduct of the prosecution is still wider.
This can be noticed from Section 302 of the Code which reads thus:
(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a public prosecutor or Assistant Public prosecutor, shall be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.
The private person who is permitted to conduct prosecution in the magistrates court can engage a counsel to do the needful in the Court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against any one in whom he is interested he can approach the magistrate and seek permission to conduct the prosecution by himself. It is open to the Court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the courts would generally grant such permission. Of course, this wider amplitude is limited to Magistrates courts, as the right of such private individual to participate in the conduct of prosecution in the sessions court is very much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them.
We may now proceed to point out the usefulness of the observations made by the three-judge bench in Bhagwant Singh vs. Commissioner of Police (supra). Bhagwati J. (as he then was) who spoke for the bench pointed out that the informant having taken the initiative in lodging the First Information Report with a view to initiate investigation by the police for the purpose of ascertaining whether any offence has been committed (if so by whom) is vitally interested in the result of the investigation and hence the law requires that the action taken by the officer-in- charge of the police station on such FIR should be communicated to him. The bench said this with reference to Section 173(2)(i) of the Code.
This Court further said in the decision that if the magistrate finds that there is no sufficient ground for proceeding further the informant would certainly be prejudiced because the FIR was lodged by him. After adverting to different clauses of Section 173 of the Code learned judges laid down the legal proposition in paragraph 5 of the said judgment. The law so laid down is that though there is no obligation on the magistrate to issue notice to the injured person or to a relative of the deceased in order to provide him an opportunity to be heard at the time of consideration of the final report of the police (except when the final report is to the effect that no offence had been made out in the case) the informant who lodged the FIR is entitled to a notice from the magistrate. In other instances, the injured or any relative of the accused can appear before the magistrate at the time of consideration of the police report if such person otherwise comes to know that the magistrate is going to consider the report. If such person appears before the magistrate it is the duty of the magistrate to hear him. It is profitable to extract the relevant portion of that ratio:
The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though the Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report.
In the above view of the matter learned single judge has done wrong to the appellant when he closed the door of the High Court before him by saying that the High Court is going to consider whether the criminal proceedings initiated at his behest should be quashed completely and that the complainant would not be heard at all even if he wants to be heard.
We, therefore, allow this appeal and set aside the impugned order. The petition filed by the respondents for quashing the criminal proceedings can now be disposed of by the High Court after affording a reasonable opportunity to this appellant also to be heard in the matter.
The appeal is accordingly disposed of.
K.T. Thomas R.P. Sethi.
February 23, 2001.
Keywords:- Private prosecutor
Act: Section 301(2) Cr.P.C
Date : 15 January, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37187 of 2008(B)
1. CHANDRA PILLAI, S/O.NEELAKANTAN PILLAI,
1. STATE OF KERALA
2. DISTRICT COLLECTOR, KOLLAM.
3. SUPERINTENDENT OF POLICE, KOLLAM.
4. STATION HOUSE OFFICER, POLICE STATION,
5. HARICHANDRAN PILLAI,
For Petitioner : SRI.S.VASUDEVAN
For Respondent : No Appearance
The Hon’ble MR. Justice R.BASANT
O R D E R
W.P.C.No.37187 of 2008
Dated this the 15th day of January 2009
J U D G M E N T
The petitioner had filed a private complaint alleging commission of the offence punishable under Section 304(B) I.P.C by the accused persons. It was a private complaint. Cognizance was taken on such private complaint. The case was committed to the court of Session. The matter is pending before the court of Sessions now.
2. According to the petitioner, the State is not interested in the prosecution at all. The prosecutor has no papers available with him. It is the petitioner, the private complainant, who has all the necessary documents and materials available with him. The petitioner, for the proper conduct of his case, wanted the Government to appoint a Special Public Prosecutor. That application was rejected. Aggrieved by that order, the petitioner has come before this court.
3. In the course of discussions at the Bar, the learned Director General of Prosecutions appearing for the respondent/State submits that the State has no objection in a counsel appointed by the petitioner conducting the prosecution true to the spirit of Section 301(2) Cr.P.C subject to the over all control of the Prosecutor. The Prosecutor does not want to interfere with the conduct of the case; but he is duty bound to ensure that the trial is conducted in a fair and reasonable manner. For this purpose alone, the Prosecutor wants to exercise his control over the case. The counsel appointed by the petitioner can conduct the case under Section 301(2) Cr.P.C. He can examine witnesses. He can cross- examine witnesses. He can do all the other needful acts; but always under the control and guidance of the Prosecutor duly appointed to secure the interests of justice, that is to ensure that the prosecution does not deteriorate into unnecessary persecution.
4. With the above observation, making it clear that the counsel appointed by the petitioner under Section 301(2) Cr.P.C shall be at liberty to conduct the case – including the examination and cross-examination of witnesses – all under the over all control of the Prosecutor, this writ petition is dismissed.
5. The learned counsel for the petitioner submits that earlier a crime under Section 174 Cr.P.C under the caption ‘unnatural death’ had been registered. The petitioner may want the details of those documents. The petitioner can certainly apply and the State/respondent must make the necessary documents available to facilitate proper conduct of the case.
ORDER 21ST DAY OF MAY2007
- Section – 275A : Contravention of order made under sub-section (3) of section 132
- Section – 275B : Failure to comply with the provisions of clause (iib) of sub-section (1) of section 132
- Section – 276 : Removal, concealment, transfer or delivery of property to thwart tax recovery
- Section – 276A : Failure to comply with the provisions of sub-sections (1) and (3) of section 178
- Section – 276AA : Failure to comply with the provisions of section 269AB or section 269-I
- Section – 276AB : Failure to comply with the provisions of sections 269UC, 269UE and 269UL
- Section – 276B : Failure to pay tax to the credit of Central Government under Chapter XII-D or XVII-B
- Section – 276BB : Failure to pay the tax collected at source
- Section – 276C : Wilful attempt to evade tax, etc
- Section – 276CC : Failure to furnish returns of income
- Section – 276CCC : Failure to furnish return of income in search cases
- Section – 276D : Failure to produce accounts and documents
- Section – 276DD : Failure to comply with the provisions of section 269SS
- Section – 277 : False statement in verification, etc
- Section – 277A : Falsification of books of account or document, etc
- Section – 278 : Abetment of false return, etc
- Section – 278A : Punishment for second and subsequent offences
- Section – 278AA : Punishment not to be imposed in certain cases
- Section – 278AB : Power of
- Section – 278B : Offences by companies
- Section – 278C : Offences by Hindu undivided families
- Section – 278D : Presumption as to assets, books of account, etc., in certain cases
- Section – 278E : Presumption as to culpable mental state
- Section – 279 : Prosecution to be at instance of
- Section – 279A : Certain offences to be non-cognizable
- Section – 279B : Proof of entries in records or documents
- Section – 280 : Disclosure of particulars by public servants
- Section – 280A : Special Courts
- Section – 280B : Offences triable by Special Court
- Section – 280C : Trial of offences as summons case
- Section – 280D : Application of Code of Criminal Procedure, 1973 to proceedings before Special Court
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)
KEYWORDS: PROSECUTION DEPARTMENT-PROSECUTION OFFICER-
The main function of the Department of Prosecution is to plead criminal matters/ cases on behalf of State Government in various criminal courts namely Judicial Magistrate, ACJM, CJM and Special Sessions Courts. Malimath Committee recommended establishing a Directorate of Prosecution on State Basis, working under the Department of Home. Again the Principal function of the Director includes the administrative control of the Prosecution machinery and also to give advice whenever required in criminal matters.
CRIMINAL PROSECUTION SYSTEM IN INDIA
- PROSECUTION AT CENTRAL LEVEL [COMPLAINT INVESTIGATED BY CENTRAL GOVERNMENT/POLICE]
- PROSECUTION AT STATE LEVEL [COMPLAINT INVESTIGATED BY STATE GOVERNMENT/POLICE]
- PRIVATE PROSECUTION BY THE COMPLAINANT IN CERTAIN CASES
Investigation and prosecution can be transferred to central level, although there is no centralized prosecution agency is available in India.
Under Code of Criminal Procedure -1973 [Sec 24 to 25A]
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 Prosecutor, 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.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional 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.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by me District Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
Explanation— For the purposes of this sub-section,—
(a)”regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;
(b)”Prosecuting Officer” means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (I) or sub-section (2) or sub-section (3) or subsection (6), only if he has been in practice as an advocate for not less than seven years.
(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.
(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.
25. Assistant Public Prosecutors
(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.
(1A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.
(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.
(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case:
Provided that a police officer shall not be so appointed–
(a)if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or
(b)if he is below the rank of Inspector.
Duties of the prosecutors:-
Gujurat- Verses -Kishanbhai etc (Criminal Appeal No.1485 of 2008), the direction was given to the Home Department of every State Government to formulate a procedure for taking action against all erring investigating/ Prosecuting Officials.
The Public Prosecutor shall keep close liaison with the District Magistrate and Superintendent of Police of the District and apprise them about developments in every sensitive and important case pending in the various Courts including matters affecting the effectiveness of the system of criminal justice.
- PRODUCTION OF WITNESSES AND THEIR EXAMINATION
- PRODUCTION OF DOCUMENTARY EVIDENCE AND MATERIAL OBJECT
- CUSTODY AND REMAND
- PROSECUTOR TO OPPOSE BAIL IN PUBLIC INTEREST
- PROSECUTOR MAY MOVE FOR CANCELLATION OF BAIL IN PUBLIC INTEREST
- CUSTODY AND DISPOSAL OF PROPERTY
- CONDUCT REGULAR CASES BEFORE COURTS
- GET PROSECUTION SANCTION-EXAMINATION OF SANCTIONING AUTHORITY AS A WITNESS
- PROSECUTION FOR PERJURY
- APPEAL AGAINST ACQUITTAL OR LESSER PUNISHMENT
- WITHDRAWAL OF CASES
- COMPOUNDING OF OFFENCES
- PROSECUTOR TO FACILITATE THE VICTIM TO GET COMPENSATION
25A. Directorate of Prosecution –
(1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution.
(7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.
(8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.
The Advocate General of a State[under UNION OF INDIA] is a Constitutional post and authority duly appointed as per Article 165 of the Constitution of India. The authority and function of Advocate General is specified in the Constitution of India under Article 165 and 177.
Article 165: Advocate General for the State
- The Governor of each State shall appoint a person who is qualified to be appointed as a Judge of a High Court to be Advocate General for the State.
- It shall be the duty of the Advocate General to give advice to the Government of concerned State upon such legal matters and to perform such other duties of a legal character; as may from time to time be referred or assigned to him by the Governor and to discharge the functions conferred on him by or under this constitution or any other law for the time being in force.
- The Advocate General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the governor may determine.
Article 177: Every Minister and the Advocate-General for a State shall have the right to speak-in, and otherwise take part in the proceedings of Legislative Assembly of the State or in case of a State having a Legislative Council; Both Houses, and to speak-in, and otherwise to take part in the proceedings of, any committee of the Legislature of which he may be named a member but shall not; by virtue of this Article, be entitled to vote.
The Hon’ble Supreme Court of India taking into account the above mentioned Articles has held that:
” 12: The Office of Advocate General is an exalted one. He is the Supreme law officer of the State”
” 18: Under Article 177 he is conferred with the right to audience before the Legislature of a State both in the Assembly and the Council. Infact, he is treated on at par with Minister.”
SUPREME COURT CASES
Joginder Singh Wasu v/s State of Punjab[(1994) SCC 184] The Advocate General and his Law officers are basically engaged to deal with court cases in the High Court by State Government and the relationship between the Government and Law Officers is that of a client and counsel.
State of U.P. & Others v/s U.P. State Law Officers Associations & others[(1994) SCC 204] The Advocate General and his office defends and protects the interest of State Government and gives invaluable legal guidance to the State Government in formulation of its policy and execution of its decisions.
- Darya Sinon Vs. State of Punjab, AIR 1965
- State of Bihar Vs. Ram. Naresh, AIR 1957
- R.K .Jain v. State, AIR 1980
- Shiv Nandan Paswan vs. State of Bihar & Others (AIR 1983 SC 1994)
- Muku Dalal v. Union of India
- State of Gujarat v. Kishanbha and others[SC 2014]
- Dhaliwal Industries Ltd v. Kishore Wadhwani and Ors [SC 2016]
K. Anbazhagan Vs. State of Karnataka and Others [SC 2015]
Prosecutors should identify and, where possible, seek to rectify evidential weaknesses, but, subject to the Threshold Test , they should swiftly stop cases which do not meet the evidential stage of the testing which cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution. Although prosecutors primarily consider the evidence and information supplied by the police and other investigators, the suspect or those acting on his or her behalf may also submit evidence or information to the prosecutor via the police or other investigators, prior to charge, to help inform the prosecutor’s decision. [see the code for crown prosecutors]
B. CrPC 25A: Section 25A of the Criminal Procedure Code
Directorate of Prosecution
- The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
- A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
- The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.
- Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
- Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under Sub-Section (1), or as the case may be, Sub-Section (8), of section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
- Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under Sub-Section (3), or as the case may be, Sub-Section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under Sub-Section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution.
- The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.
- The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.
- Prosecutors’Court Diary
- Witness Register
- Malkhana Register
- Absconder Register
- Court Moharrir Inspection Register
- ACquittals Report Register for both Lower/Sessions Court