Holding

The trial must be conducted under Sections 244‑247 of Chapter XIX‑B of the CrPC, and the complainant’s advocate is deemed a public prosecutor, so no State‑appointed public prosecutor is required.

Summary

The Supreme Court dealt with two criminal matters transferred from the Special Judge, Greater Bombay, to a sitting High Court Judge. The issues were the procedural law to be applied to the trial after transfer and who would act as public prosecutor when cognizance was taken under Section 8(1) of the Criminal Law (Amendment) Act, 1952. The Court held that the trial must follow the procedure laid down in Sections 244 to 247 of Chapter XIX‑B of the Code of Criminal Procedure, 1973, i.e., the procedure for cases instituted otherwise than on a police report, and that the advocate engaged by the complainant is deemed a public prosecutor, eliminating the need for a State‑appointed public prosecutor. Consequently, the order of the Special Judge discharging the accused was set aside and the trial was to proceed from the stage of discharge. The Court also dismissed the miscellaneous petitions seeking clarification, noting that the points raised were already settled by its earlier judgments.

Issues considered

The appropriate procedural law for a trial transferred from a Special Judge to a High Court under Section 8(1) of the Criminal Law (Amendment) Act, 1952.
Whether a State‑appointed public prosecutor is required when the cognizance of an offence is taken under Section 8(1) and the trial follows the procedure under Section 8(3).
Who is deemed to be the public prosecutor in such circumstances.

Legislation cited

Code of Criminal Procedure, 1973s. 244, s. 245, s. 246, s. 247, s. 407
Criminal Law Amendment Act, 1952s. 8(1), s. 8(3)

Subjects

Transfer of criminal trialProcedure under CrPCPublic prosecutorCriminal Law (Amendment) Act 1952Section 8(1) cognizanceHigh Court jurisdictionMiscellaneous petition for clarification

Judgment

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A
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R. S. NAYAK
v.
A.R. ANTULAY
April 5, 1984 .•
(D.A. DESAI, R.S. PATHAK, 0. °CHINNAPPA REDDY,. A P, SEN AND
V. BALAKRISHNA BRAD!, JJ.] .
Crlmf ja/ ,Appel/ate -Jurisdi'ctioft-Transfer of a pending criminal trial
1

from the court oi Sessions to the· High Caurt-Proc.edure to be followed iS the
same as prescribed in chapte.- XIX !Fof the Code of Criminal Procedure-If
the Cognizance of an offence is taken upder section B{J} of the Criminal' Law
c {Ame11dment) Aci,- J.952-State need not- appoint Q Public Prosecutor--The.
comp}ail.zant's ad-JoCate will the Pu.b(iC Prosecutor.

In comPiianc: with directions given by the_ Constitution Bench of.the
Supreme Court, tho Bombay High Court withdrew to itself Special Case
No, 24 of 1982 and Special Case No. S/83 pending in the Court of the
Special Judge, Greater Bombay and assi8ned the said two c8ses to Mr.
D !1Jstice S.N. Khatri a sitting Judge of the said court. When ·the cases·
were t~ken up for heariagJ two prelimioarY. contentions were raised ·as to
wbeihel'. State should appOint a. PU:blic ProseCutOr to conduct the tdal
and· what should be the 'procedure to bo followed and from what stage_
.Of the trial. Hence the twO applications for classification. The court; ·

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· HELD: 1. The learned Judge has to .hoLd the trial according to tho
·procedure prescribed in chapter X(X B i.e,, !le . procedure prescribed' in
section 244 to 247 (botb inclusive) of"the Code of Criminil Procedure. ·
To be precise, the Jearned J\idge has .to try thC-case according to tbe
proc_edµre pr(iscribed for cas~s insti•uted ctherwise than on police report
.( .
by. Magistrate, ·The trial was to proceed from the ·stage when the acused
was discharged. [ 4140-B] '
F 2. If the cognizance of an olfcace is taken under section s(;) of
tlie criminal law (Amendment) Act, 1952, and the trial has t.o be held
acdording to: the procOdure prescribed 'thereicl, under sec~iOn 8(3), the
learned advocate engaged by the complainant to coaduct the prosecution
will be Cteem~d tO be a Public ·prosecutoc, Io such a situation, there is
DO questiOn. of the State appointed Public Prosecutor to conduct~' the
prosecution. It is for ~the complaiila1lt io decide who should be his
G learned advocate in charge of tho Prosecution. [4 !SB-C]
' \ . . .·
CRIMINAL JUR\sDiCT\ON :.Criminal Misc. Petition No. 1740 of·
1984.
(For Directions)
IN
(Crimin'll Appeal No; 356 of 1983)
'

it .. s. NA.YA.K v. A.:tt A.NWLA.Y (Desai, J.) 413
And • A
(Criminal Misc. Petition No. 22rl7of1984)
(For Directions)
,. IN
(Criminal Appeal No. 356 of .1983) .B
Ram Jethmalani, Ms. 1 Rani Jethmalani, Naresh Jethmalani
and J. Wad for the Petitioner.

A. K. Sen, M. N. Shroff and Dalveer Bhandari for the
Respondent. C

The Order of the Court wa.s delivered by

DESAI,· J. Consequent upon the order made by a Constitution
' j Bench <!f this Court on February 16, 1984 in the Judgment
rendered iu Criminal Appeal No. 356 of 1983 and Transferred
D
Case No. 347 of.'1983 alongwith Transferred Case No. 348 of
1983, ,Special Case ·No. 24 of 1982 and Special Case No. 3/83
pending in the Court of the Special Judge, Greater Bombay (Shri
R.B. Sule) were withdrawn and sto9d transferred to the High
Court of Bombay. Jn compliance with the direction. given in the
same judgment, the learned Chief Justice of the High Court of E
Bombay assigned both the cases to Mr. Justice S.N. F;,hatri, .a
sitting Judge of the High Court. The learned Judge called upon
the parties to appear before him on March· 12, 1984. When the
cases were taken UI> for hearing, ·certain ·preliminary objections
·were raised on behalf of the accused which we were .told have
been dealt with by the learned Judge in his order dated March 16, F
1984. In respect of two issues further consideration was postponed.
These issues turn upon the q.uestion of procedure to be adopted
by the learned Judge in the trial of the two cases and who should
. · be .incharge of the prosecution. In our opinion, if the judgment ·
of this Court was read with care and precision, these two questions
would have hardly arisen. However, two misc. petitions were ·o
moved in tliis Court for clarification of the judgment so as to
.thwart avoidable delay in the trial of cases.

The operative portion of the judgment which has a bearing on
the question i:afsed reads as under:

"Therefore, Special Case No. 24 of 1982 .and Special
Case No. 3/83 pending in the Court of Special Judge,
. SU.!>REM1! C:OURT Ral>ORTS · [!9S4) 3 S.C.R.
·'A·. Greater Bomb~ Shri R.B. Sule are withdrawn and trans-
ferred to t)'te High Court of Bombay with a request to the
learned Chief Justice to assign these two cases to a sitting .
Judge of the High Court".

In the penultimate paragraph of the jii:dgment while allowing the
appeal this-.Court directed as Under : . .

"This appeal accordingly succeeds and i~ ·allowed. The
· order and decision of thp learned Special Judge Shi'i R.B~ , ,
Sule dated July 25, 1983 discharging the a.ccused in Special
Case No. 24 of 1982 alid Special ·Case No. 3!83 is hereby
c set aside and the trial shall proceed further from the stage ,
where the accused was discharged."

Reading two dir.e.ctions togethet, it clearly emerges that the
learned Judge has to hold trial according to the procedure
. prescribed in Chapter XIX' B i.e. the procedure prescribed in
. Secs .. 24.4 to 247 of the Code of Crimina.l Procedure, 1973. .T-0 ·
be precise;· the learned Judge has to try the case according to the
procedure prescribed for cas~s mstituted. otherwise·. than. on'poli~
report by Magistrate. This position 'is clear. and. unambiguous
in view of the fact that this .Co1m while allowing the appeal was
hearing amongst others Transferr.ed Case .No. 347 of 1983 being
the Criminal Revision ~pplicatfon No ..354 of 1983 on the
fil.e of the Hig]j Court of the Judicature at' Boin bay against the
'or'der'of. the learned Special Judge Shri RB. Sule disc)larging
. ".
the accus.ed. 1f the ·criminal revision application was not with-
drawn ·to ti;lis Court, . the lligh' Court· while hearing criminal
. . revision application could have under Sec. 407 Code of Crim.inal
f Procedure, 1973 transferred the Special case from which criminal
revision application arose to itself for trial and irr such a situation
the High Court under Sec. 407 (8), Code of Criminal Procedure,
•. !973 would have to follow the same procedure which the Court.
of Spe~ai Judge would have followed it the case would .not have
been so transferred. His 11ot in dispute that th() learn~d Special
Judge while holding the trial was required to follow the pro,cedure
prescribsd by tlie Code of Criminal Procedure, 1973 for trial of
.·warrant cases by Magistrates and in the facts of this case the
:procedure would !J,tl· in respect of cases instituted. oth.erwise than
on police report. "(he trial was to proceed further from the. stage
when. the accused was discharged. This in our ,opinion is obvious
!ff and needs no furbher clarification. Sec. S(I) o[Jhe Criminal.Law
(AmeD;dmeilt) Act, 1952 as interprete~ by this Court in Criminal
I .

R. s. NAYAK v. A. R. ANTULAY (Desai, J.) 415

• Appeal No. 247 of 1983 decided on February 16, 1984 makes A
this position unambiguous and.abundantly clear.

The clarification in re,pect of the first point read with the'
judgment rendered in Criminal Appeal No. 247 of 1983 in which
Sec. 8 (3) of the 'Criminal Law (Amendm~nt) Act, 1952 had come
in 'for interpretation, it follows as a corollary that iflhe cogni- B
zance of an bffence is taken under Sec. 8(1) of the Criminal Law
(Amendment) ·Act, 1952 and the trial has to be held according to •
the procedure prescribed therein, under Sec.. 8 (3) · the learned
' advocate engaged by the complainant to conduct the1Jrosecution
will be deemed to be a public prosecutor. In such a 'situation,
·there is no question of.the State appointed public prosecutor c
to ~onduct the prosecution. It is, th~refore, clarified which· to ·
some extent may appear tautologus in view of the af0<ementioned

.
judgment, that it would be for th~ complainant to .decide who
would be the learned advocate iucharge of the prosecution and
'
.the advocate so appointed would be deemed to be a public
prosecutor.
'

D

Dr. Singhvi who appeared for the respondent-accused sub-
'·mitted that in the ·guise of a petition for clarification, it is a
covert attempt to forestall or foreclose the deCision on the afore-
mentioned two points .which. are ·pending before the learned Judge
E
before whom both the cases are pending. There was no.question of
peciding the aforementioned two. poi.nts afresh because the answers
to them are implicit in ·the judgments referred to aBove. Dr,'
Sing'hvi had nothing to say when invited by the Court about the
clarification which the Court my offer in respect of the afore- • ·
·mentionecftwo questions. He left us in no doubt that he does · .. F
to
not wish make any submission on the ,question of clarification
in respect of the aforementioned two questions.

We note that the Government of Maharashtra has entered
appearance before us through Shri A.K Sen and 'shri M.N.
Shroff but no submission were made by them. · G
Mr. Jethmalani, learned counsel for the complainant wanted
this Court to consider. prayers· Nos. (c) and (d) in the ,misc.
petition which we consider for the· disposal of the misc. petitions
as irrelevant and we do not propose to deal with the same in these
petitions. H
•
Tn sum the clarification is that the learned Judge in the tril\\

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4i6
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SUPRJ!Mll COURT REPORTS (1984) 3 S.C.R.

A of the two.cases pending before.him has to follow the procedure
prescribed in Secs. 244 to 247 (both-inclusive} included in Chapter
XIX-B of the Code of Criminal Procedure, 1973. It is for the
complainant to decide who shonld·be his learned advocate focharge
"or tjle prosecution and there is no question 'of entrusting the trial
of the two cases to a State appointed public prosecutor.
B

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