Supreme Court of India
SHIV KUMARversusHUKAM CHAND AND ANR.
- Citation
- 1999 INSC 363
- Decided
- 30 August 1999
- Disposal
- Dismissed
- Bench
- S P KURDUKAR
Holding
Prosecution in a Sessions Court must be conducted by the Public Prosecutor; a private counsel may only act under the Public Prosecutor's directions and cannot conduct the prosecution.
Summary
Shiv Kumar filed a criminal case against Hukum Chand for the death of his sister. During the Sessions trial, Kumar sought to have his private counsel, R.C. Gugnani, conduct the prosecution under the direction of the Public Prosecutor, who gave consent. The Sessions Court permitted this, but the High Court set aside the order, holding that only the Public Prosecutor may conduct prosecution in a Sessions Court. On appeal, the Supreme Court examined Sections 225, 301, and 302 of the Code of Criminal Procedure and held that the legislative intent is clear: prosecution before a Sessions Court must be carried out by the Public Prosecutor, with a private pleader limited to a supervisory role and not to conduct the case. Consequently, the appeal was dismissed, upholding the High Court's decision.
Issues considered
- Whether a private pleader engaged by an aggrieved party can conduct prosecution in a Sessions Court under the direction of the Public Prosecutor under Sections 301 and 302 of the CrPC.
- Whether Section 225 of the CrPC bars any person other than the Public Prosecutor from conducting prosecution in a Sessions trial.
Legislation cited
- Code of Criminal Procedure, 1973s. 225, s. 24, s. 301, s. 302
Subjects
private prosecutionpublic prosecutorCrPC Section 225CrPC Section 301CrPC Section 302sessions courtfair trialcriminal procedure
Judgment
SHIV KUMAR A
v.
HUKAM CHAND AND ANR.
AUGUST 30, 1999
[S.P. KURDUKAR, K. T. THOMAS AND N. SANTOSH HEGDE, JJ.] B
Code of Criminal Procedure, 1973-Sections 225, 301 and 302-
Prosecution by private pleaders-Whether permissible-Appellant applied
for permission to his Advocate to conduct prosecution of the case-Consent C
of Public Prosecutor obtained-Held, private pleaders cannot conduct
prosecution except before a Magistrate even with the consent of the Public
Prosecutor.
Code of Criminal Procedure, 1973-Sections 24 and 225-Public
Prosecutor-Role of D
The Appellant married his sister to son of respondent no. 1. Appellant's
... sister died of burn injuries four months afLr the marriage and on appellant's
complaint, a case was registered against respondent no. 1 under Sections
302 and 120-B 1.P.C. After the completion of the investigation, the police
filed a charge sheet against respondent no. 1 for commission of offence E
under Section 304-B of the LP.C.
During the trial, appellant applied to the Sessions Court for allowing
his Advocate to conduct the prosecution of the case under the directions of
the Public Prosecutor. The said application was also endorsed by the Public
Prosecutor. F
The Sessions Court allowed the application of the appellant The revision
filed by respondent no.1 before tbe High Court was allowed and order of the
Sessions Court was set aside. Hence, the appellant filed the present appeal.
Dismissing the appeal, the Court G
HELD: 1.1. From the scheme of the Code of Criminal Procedure, 1973
the legislative intention is manifestly clear that prosecution in a sessions
court cannot be conducted by any one other than the Public Prosecutor.
[86-EJ H
81
82 SUPREME COURT REPORTS (1999] SUPP. 2 S.C.R.
A 1.2. 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 i~, perhaps, comparable with that of a junior Advocate
conducting the case of his senior in a court. The private counsel is to act
B 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 of Criminal Procedure a dead letter. (87-A-B]
C 2.1. 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 conducted 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
D Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of
the Public Prosecutor to winch it to the force and make it available to the
accused. Even ifthe 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. [86-F-G]
E 2.2. 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. [86-H]
F Queen-Empress v. Durga, ILR (1894) All. 84; Medichetty Ramakistiah
& Ors. v. The State of Andhra Pradesh, AIR (1959) AP 659 and In re:
Bhupalli Malliah & Ors., AIR (1959) AP 477, relied on.
3. In the Magistrate's court anybody (except a police officer below the
G rank oflnspector) can conduct prosecution, if the Magistrate permits him
to do so. ·once the permission is granted the person concerned ca~ appoint
any counsel to conduct the prosecution on his behalf in the Magistrate's
court [85-F]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I 048
H of 1998.
S. KUMAR v. HUKAM CHAND [THOMAS, J.] 83
From the Judgment and Order dated 28.11.96 of the Punjab and Haryana A
High Court in Criminal Revision. No. 739 of 1996.
B.S. Mor, M.S. Dahiya and Ms. Kusum Singh for the Appellant.
C.S. Ashri and Mahabir Singh for the Respondents.
B
The Judgment of the Court was delivered by
THOMAS, J. It is as well for the protection of accused persons in
sessions trials (in India) that provision is made to have the case against him
prosecuted only by a Public Prosecutor and not by any counsel engaged by
the aggrieved private party. Fairness to the accused who faces prosecution C
is the rais on d'etre of the legislative insistence on that score.
In this case, appellant is aggrieved because a counsel engaged by him
was not allowed by the High Court to conduct prosecution in spite of
obtaining a consent. from the Public Prosecutor concerned. First respondent
was the accused in the sessions trial wherein appellant wanted his counsel's D
active role to be played. Appellant and respondent are advocates practicing
at the same station. The grievance of the appellant developed in the following
fact situation:
Appellant is the brother of five sisters, and the youngest among them,
Suman, had secured creditable academic laurels. She was given in marriage E
to Dr. Dinesh Kumar Gupta (the son of the respondent). But about 4 months
after her marriage she met with a tragic death by bums. On a complaint lodged
by the appellant, FIR under Section 302 and 120-B of the Indian Penal Code
(IPC) was registered by the local police against the respondent. But after
completion of the investigation a charge-sheet was laid against him for the F
offence under Section 304-B of the Indian Penal Code.
Appellant, on his part, engaged Shri R.C. Gugnani, advocate, to appear
for him in the Sessions Court during trial of the case. On 1. 7.1996 when
appellant was to be examined as a witness for prosecution, Shri R.C. Gugnani,
advocate ventured to conduct the chief examination of that witness. It was G
objected to by the counsel for the accused on the premise that a private
·· counsel cannot conduct prosecution in a sessions trial. Appellant then moved
an application on the same day, the relevant portion of which reads thus:
- "That the Public Prosecutor has no objection if the case is conducted
by Shri R.C. Gugnani, advocate. That as per the prevailing practice H
84 SUPREME COURT REPORTS [1999]SUPP. 2 S.C.R.
A being followed by this Hon'ble Court and as per provisions of Section
301(2) Cr.P.C. my counsel has a right to conduct the case under the
directions of the Public Prosecutor. It is, therefore, prayed that in view
of the ~acts stated above, necessary permission may please be given
to the applicant for conducting .the case under the directions of the
-Public.Prosecutor."
B
It seems, t,he Public Prosecutor in the trial Court endorsed the said
application. Tlie trial Court passed an order thereon, the material portion of_
which is the following :
"I accept the application and allow Shri R.C. Gugnani, advocate of the
c complainant to conduct under the supervision, guidance and control
of the public prosecutor, while conducting the same case and the
public prosecutor shall retain with himself the control over the
proceedings."
D Accused was not prepared to have his case prosecuted by the
complainant's counsel and hence he approached the High Court in revision.
Ibe impugned order of the High Court was passed by a Single Judge. The
operative portion of the said order reads thus:
"I allow this revision and direct that the lawyer appointed by the
E complainant or private person in this case shall act under the directions
from the Public Prosecutor and may with the permission of the court
submit written arguments after evidence is closed in the case. I further
direct that the Public Prosecutor in charge of the case shall conduct
the prosecution. Revision petition is disposed of accordingly."
F Learned counsel for the appellant informed us that trial in the case is
over by now. Nonetheless he pleaded for consideration of the issue as he
feels that a decision thereon by this Court is necessary for future guidance
also. He contended that Section 302(2)
I
of the Code of Criminal Procedure (for
short the 'Code') must be so construed as to enable the pleader of an aggrieved
G private person to conduct the prosecution in as best a manner as he deems
fit. Section 301 of the Code reads thus:· ·-
_"301. Appearance by public prosecutors.-(!) 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
H case is under inquiry, trial or appeal.
'·
S. KUMAR v. HUKAM CHAND [THOMAS, .1.) 85
(2) If in any such case any private person instructs a pleader to A
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 B
evidence is closed in the case."
- ....
Section 302 of the Code has also some significance in this context and
hence that is also extracted below: ·
"302. Permission to conduct prosecution.-(1) Any Magistrate
inquiring into or trying a case may permit the prosecution to be C
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, shalt' be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the D
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."
E
It must be noted that the latter provision is intended only for magistrate
courts. It enables the magistrate to permit any person to conduct the
prosecution. The only rider is that magistrate cannot give such permission to
a police officer below the rank of Inspector. Such person need not necessarily
be a Public Prosecutor.
F
In the magistrate's court anybody (except a police officer below the rank
of Inspector) can conduct prosecution, if the magistrate permits him to do so.
Once the permission is granted the person concerned can appoint any counsel
to conduct the prosecution on his behalf in the magistrate's court.
G
But the above laxity is not extended to other courts. A reference to
Section 225 of the Code is necessary in this context. It reads thus:
"225. Trial to be conducted by Public Pro~cutor.-In every trial
before a Court of Session, the prosecution shall be conducted by a
Public Prosecutor." H
86 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.
A The old Criminal Procedure Code (1898) contained an identical provision
in Section 270 thereof. A Public Prosecutor means 'any person appointed
under Section 24 and includes any person acting under the directions of the
Public Prosecutor", (vide Section 2 (u) of the Code).
In the backdrop of the above provisions we have to understand the
B purport of Section 30 I of the Code. Unlike its succeeding provision in the
Code, the application of which is confined to magistrate courts, this particular
section is applicable to all the comts of criminal jurisdiction. This distinction
can be discerned from employment of the words "any court" in Section 30 I.
In view of the provision made in the succeeding section as for magistrate
C Courts the insistence contained in Section 30 I(2) must be understood as
applicable to all other courts without any exception. The first sub-section
empowers the Public Prosecutor to plead in the court without any written
authority, provided he is in charge of the case. The second sub-section,
which is sought to be invoked by the appellant, imposes the curb on a
counsel engaged by any private party. It limits his role to act in the court
D during such prosecution "under the directions of the Public Prosecutor". The
only other liberty which he can possibly exercise is to submit written arguments
after the Closure of evidence in the trial, but that too can be done only if the
Court permits him to do so.
E 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
F involved in the case. The expec<ed 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
G to winch it to the force 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 ailowed frece 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 Parlfament applied a bridle on him and subjected his role
H strictly to the instructions given by the Public Prosecutor.
S. KUMAR v. HUKAM CHAND [THOMAS, J.] 87
It is not merely an overall supervision which the Public Prosecutor is A
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 B
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 C
Queen-Empress v. Durga, (ILR 1894 Allahabad 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 D
vindicated: and, in exercising his discretion as to the witnesses whom
he should or should not call, he ~hou!Q 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 E
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."
F
As we are in complete agreement with the observation of a Division
Bench of the High Court of Andhra Pradesh in Medichetty Ramakistiah &
Ors. v. The State of Andhra'fradesh, AIR (1959) A.P. 659 we deem it fit to
..... ' extract the said observation:
G
"A prosecution, to use a familiar phrase, ought not to be a persecution.
The principle that the Public Prosecutor should be scrupulously fair
to the accused and present his case with detachment and without
evincing any anxiety to secure a conviction, is based upon high
policy and as such Courts should be astute to suffer no inroad upon
its integrity. Otherwise there will be no guarantP.e that the trial will be H
88 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
A as fair to the accused as a criminal trial ought to be. The State and
the Public Prosecutor acting for it are only supposed to be putting all
the facts of the case before the Court to obtain its decision thereon
and not to obtain a conviction by any means fair or foul. Therefore,
it is right and proper that courts should be zealous to see that the
prosecution of an offender is not handed over completely to a "
B professional gentleman instructed by a private party." .•
Another Division Bench of the same High Court in re Bhupa/li Malliah
& Ors., AIR (1959) A.P. 477 had in fact deprecated the practice of Public
Prosecutor's sitting back and permitting private counsel to conduct
C prosecution, in the following terms:
"We would like to make it very clear that it is extremely undesirable
and quite improper that a Public Prosecutor should be allowed to sit
-
back, handing over the conduct of the case to a counsel, however
eminent he may be, briefed by the complainant in the case."
D Equally forceful is the observation ofBhimasankaram, J. for the Division
Bench in Medichetty Ramakistiah (cited supra) which is worthy of quotation
here: •
"Unless, therefore, the control of the Public Prosecutor is there, the
prosecution by a pleader for a private party may degenerate into a
E
legalized means for wreaking private vengeance. The prosecution
instead of being a fair and dispassionate presentation of the facts of
the case for the determination of the Court, would be transformed into
a battle between two parties in which one was trying to get better of
the other, by whatever means available. It is true that in every case
F there is the overall control of the Court in regard to the conduct of
the case by either party. But it cannot extend to the point of ensuring
that in all matters one party is fair to the other."
We, therefore, conclude that the High Court in the impugned order has
correctly approached the issue and it does not warrant any interference. We,
G therefore, dismiss this criminal appeal.
B.K.M. Appeal dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "private prosecution"Sign in to search