Santu Mahto vs The State Of Jharkhand

Santu Mahto --- --- --- Petitioner Versus The State of Jharkhand --- --- --- Opp. Party --- Coram: Hon'ble Mr. Justice Prashant Kumar Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Amitav K. Gupta ---

For the Petitioner: M/s. Kailash Prasad Deo, S.K. Deo, Advocate For the Informant: M/s A.K. Kashyap, Sr. Advocate, Awanish Shekhar, Advocate For the State: Mr. Arun Kumar Pandey, A.P.P.

---

Reserved on: 11/07/2014 Pronounced on:24/07/2014 ---

Aparesh Kumar Singh, J: Heard counsel for the parties.

2. By Order dated 17th June 2014, following questions of law have been

referred for consideration before this Bench by the learned Single Judge.

(i) Whether in a criminal proceeding a 'Caveat Application' is required to be filed as provided under Section 148(A) of the Code of Civil Procedure?

(ii) Whether the informant and the victim, who are ultimate sufferer of a criminal case, have legal right to appear, in a proceeding initiated at the instance of accused, through a private lawyer as per the provisions contained under Section 301(2) of the Cr.P.C., as well as the law laid down by the Hon'ble Supreme Court in the case of J.K. International case (Supra)?

3. The background for making such a reference is as follows:

In a Habeas Corpus petition being W.P.(HB Cr.) No. 95/20212 (Bibi

Samsha Khatoon vs. The State of Jharkhand & others), the learned Division

Bench of this Court after finding that vakalatnama have been accepted on behalf

of the respondent no. 5 by the Registry of the Court without any notice ever been

issued to him, has held as follows:

"1.Counsel appearing for the petitioner has argued out the case at length. Counsel for the State is also present.

2 2.Notice upon respondent nos. 5 and 6 be served by ordinary process, for which, requisites etc. must be filed on or before 20th June, 2014.

3. Registry of this Court ought not to have accepted any Vakalatnama on behalf of respondent no. 5 because no notice has ever been issued. Such type of error should not recur in future by the Registry of this Court. It ought to be kept in mind by the Registry of this Court that unless the Court issues notice upon the private respondent (s), in advance, no Vakalatnama can be filed by any party. What can be filed, in advance, is known as "Caveat Application"

under Section 148 (A) of the Code of Civil Procedure.

Henceforth, such type of acceptance of Vakalatnama should be avoided by the Registry of this Court.

4. A copy of this order will be given to the Registrar General of this Court for issuance of necessary action.

5. We also direct the head of Basantrai Police Station of District Godda, to file an affidavit as to whether in the instant case, filed by the petitioner, charge sheet has been filed or not? This affidavit shall be filed by the aforesaid police officer on or before the next date of hearing.

6. Notice is made returnable on 14th July, 2014."

4. When the instant bail application was being heard before the learned

Single Bench, an objection was raised on behalf of the petitioner that in view of

the order dated 13th May 2014 passed in W.P.(HB Cr.) 95/2012, the informant

could not appear through the counsel as no notice have been issued to the

informant / private party, nor the informant / private party had filed a Caveat

application under section 148(A) of the Code of Civil Procedure. Therefore, it

was prayed that his appearance on behalf of the informant is liable to the rejected.

Learned Single Judge, after noticing the provisions of section 301(2) of the

Cr.PC. and the judgment rendered by the Hon'ble Supreme Court of India in the

case of J.K. International vs. State (Govt. of NCT of Delhi) and others [(2001)

3 SCC 462], was of the view that in a criminal proceeding, Code of Civil

Procedure had no application and there is no provision for filing a caveat

application in a criminal proceeding. Therefore, the aforesaid questions of law

were referred to the Full Bench for reconsideration of the order passed by the 3

learned Division Bench of this Court, as aforesaid. The matter has thereafter been

placed before this Bench by order of Hon'ble the Chief Justice.

5. At the outset, it must be stated that when the arguments were heard,

learned counsel appearing on behalf of either of the parties, volunteered to assist

the court on the aforesaid questions of law, rather than arguing for and against the

aforesaid issue.

6. Mr. K.P. Deo, learned counsel appearing on behalf of the petitioner and

Mr. A.K. Kashyap, learned Senior Counsel appearing on behalf of the informant,

both referred to the provisions of Section 301(1)(2) of the Cr.PC. whereunder, in

a inquiry, trial or appeal, any private person may instruct the pleader to prosecute

any person in court and in such circumstances, the pleader so instructed shall act

under the direction of the Public Prosecutor or Assistant Public Prosecutor who is

conducting the prosecution. Learned counsel also referred to the newly added

provisions of section 2(wa) of the Cr.PC. which contains the definition of victim

and the proviso added to section 372 Cr. PC whereunder the victim has been

conferred the right to appeal against the order of acquittal of an accused or also

against his conviction for lesser offence or on imposition of inadequate

compensation. Learned counsel has relied upon the judgment rendered by the

Hon'ble Supreme Court in the case of Bhagwant Singh vs. Commissioner of

Police and another [(1985) 2 SCC 537] to submit that an injured person or

relative has a locus to appear in the court to oppose the dropping of the

proceedings against an accused by the Magistrate on the basis of a police report

under section 171(3) Cr.PC.. Learned counsel has further relied upon a judgment

rendered by the Hon'ble Supreme Court in the case of Shiv Kumar vs. Hukam

Chand and another [(1999) 7 SCC 467] and submitted that the provisions of

sections 301 and 302 Cr.PC. are applicable to all courts of criminal jurisdiction.

Therefore, even at the stage of proceedings seeking grant of bail by an accused,

the informant is entitled to appear to assist the court, though under the instruction 4

of Public Prosecutor to prosecute / oppose the prayer. Learned counsel for the

petitioner has also relied upon an Article published on 'Victims of Crime Unseen

Side' of Hon'ble Mr. Justice A.S. Anand as the Lordship then was [(1998) 1 SCC

1]. According to him, law has progressed in the matter of recognition of the

rights of victim who have been all along deprived of due recognition in the

matters of criminal prosecution, though they are the ultimate sufferers. Learned

counsel has further relied upon a judgment rendered by the Hon'ble Supreme

Court in the case of J.K. International (Supra), It is submitted that the Hon'ble

Supreme Court in the said judgment, categorically held that in a proceeding for

quashing of a criminal prosecution, presence of the informant / complainant who

is aggrieved of the offence, cannot be altogether wiped out from the scenario of

the trial because the investigation was taken over by the police and the charge

sheet was laid by them. If the complainant wishes to be heard when the criminal

proceedings are sought to be quashed, it would be a negation of justice, if he is

foreclosed from being heard even after he makes a request to the Court in that

behalf. It has been submitted that sections 301 and 302 Cr.PC., have been also

considered by the Hon'ble Supreme Court in the said judgment, while recognizing

the role to be played by a private person, though limited, even in the Sessions

Court. It is submitted that the Court has been granted the power to permit even

such private person to submit his written argument in the court including the

Sessions Court and if he does so, the Court has the duty to consider such

argument before taking a decision. It has been further submitted on their part that

the provisions of Code of Civil Procedure are applicable to all civil proceedings /

civil suits, whereas under section 4 of the Code of Criminal Procedure, all

criminal trials are to be conducted under the provisions of Criminal Procedure

Code. Therefore the provisions of Section 148-A of the Code of Civil Procedure

cannot be borrowed in a criminal proceeding for enabling the private persons /

informant to file a caveat petition to oppose the prayer for bail. Learned counsel 5

for the petitioner by referring to Chapter-IX Rule 86 to 89 of the Jharkhand High

Court Rules, has also pointed out that they are enabling provisions to be followed

in case a caveat petition is filed in a civil proceeding before the High Court.

7. Learned Senior Counsel Mr. A.K. Kashyap has drawn attention of the

Court to the newly added proviso to section 24(8) of the Cr.P.C. wherein the

Court may permit the victim to engage an Advocate of his / her choice to assist

the prosecution. It is submitted that under section 439 Cr.P.C containing

provisions for grant of bail by the High Court and the Sessions Court, there is

mandatory requirement of service of notice, on an application for bail, to the

Public Prosecutor, unless for the reasons to be recorded in writing, the Court is of

the opinion that it is not practicable to give such notice. It is therefore submitted

that the victim has been conferred a right to assist the Public Prosecutor in

opposing such prayer even in a proceeding for bail initiated on behalf of the

accused. Learned counsel for the petitioner as well as informant have submitted

that a private person who may be the informant / complainant himself or relative

of the victim or the injured, has the right to appear before the Court and assist the

prosecution to oppose such prayer of the accused even in the case of application

of bail.

8. Learned A.P.P. Mr. Arun Kumar Pandey has submitted that the Public

Prosecutor under the provisions of section 172 Cr.P.C is the custodian of all

police papers and the records and it is he who is entrusted with the responsibility

to prosecute the offender / accused. However, learned A.P.P. is also of the view

that the private person may instruct the Public Prosecutor to oppose the prayer of

the accused even in a bail proceeding before the High Court.

9. Having considered the submission of the learned counsel for the parties

and the provisions of law and the judgment relied upon by them, let us address the

first question referred for consideration before this Bench, i.e. whether in a

criminal proceeding a 'Caveat Application' is required to be filed as provided 6

under Section 148(A) of the Code of Civil Procedure?

Premable to the Code of Civil Procedure, 1908 reads as under:

"An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; it is hereby enacted as follows _______________."

10. Section 5 of the Code of Civil Procedure provides for application of the

Code to the Revenue Courts; whereunder any Revenue Court are governed by the

provisions of this Code in those matters of procedure upon which, any special

enactment applicable to them is silent. The State Government may by notification

in the official Gazette declare that any portion of those provisions which are not

expressly made applicable by this Code, shall not apply to those courts, or shall

only apply to them with such modifications as the State Government may

prescribe. Part-I of the CPC provides for the jurisdiction of the Court and res

judicata. Section 9 CPC provides that the Courts shall try all civil suits unless

barred. It provides that the Court shall (subject to the provisions therein

contained) have the jurisdiction to try all suits of civil nature excepting suits for

which their cognizance are expressly or impliedly barred. Section 141 of the CPC

provides for miscellaneous provisions as per which, the procedure provided in

this Code in regard to suit shall be followed, as far as it can be made applicable,

in all proceedings in any Court of civil jurisdiction. Explanation thereof provides

that the expression 'proceedings' includes proceedings under Order-IX, but does

not include any proceeding under Article 226 of the Constitution. Reference of

the aforesaid provisions of Civil Procedure Code leaves a clear impression that

the Code of Civil Procedure applies to all proceedings in any Court of civil

jurisdiction i.e. all suits of civil nature except cognizance of which is either

expressly or impliedly barred. In the aforesaid scheme of the Code, Section 148-A

has to be understood. Section 148-A CPC reads as under:

7

"148-A. Right to lodge a caveat.- (1) Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made under sub-section (1).

(3) Where, after a caveat has been lodged under sub-

section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.

(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the ceveator's expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.

(5)Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period."

11. Under the aforesaid provisions, a person claiming a right to appear before

the Court where an application is made or expected to be made in a suit or

proceeding instituted or about to be instituted, may lodge caveat in such court in

respect thereof. The whole concept and the object behind giving right to a person

to lodge caveat in such a suit or proceedings before any Court, is to ensure that

before any order is passed at the instance of the person instituting the suit, the

person whose interest is likely to be affected, be given an opportunity of hearing.

In essence, it is intended to ensure that the person likely to be affected, has a right

to oppose the prayer of the applicant in such suit or proceedings and that applicant

or the plaintiff may not get an ex-parte order in his favour in the absence of

caveator / applicant who has a interest in the matter.

8

12. The Code of Criminal Procedure is an Act to consolidate and amend the

law relating to criminal procedure. Section 4 of Cr.PC provides that all offences

under the Indian Penal Code shall be investigated, inquired into, tried and

otherwise dealt with according to the provisions hereinafter contained. Section 4

of the Cr.PC. is in relation to the trial of the offence under the Indian Penal Code

and other laws. Section 4 Cr.PC reads as under:

"4. Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

13. It is therefore evident that under the Cr.PC.in a criminal case at any stage

of inquiry, trial or appeal, no such specific provision of filing a caveat, as

governed by section 148-A of the Code of Civil Procedure exists. There are no

other provisions under the Code of Criminal Procedure under which a private

party / complainant / informant can file a caveat to oppose the proceeding

initiated at the behest of the accused. Learned Division Bench of Delhi High

Court vide judgement dated 11th May 2001 passed in WPC No. 1703/2001 in the

case of Deepak Khosla vs. Union of India & others, had also the occasion to

consider, whether a caveat application is maintainable in a criminal matter to

oppose the prayer of the accused person seeking an interim order from the Court?

Learned Court after considering the provisions of the CPC and Cr.PC., as has

been noticed herein above as well, came to an authoritative conclusion that there

is no legal sanction for filing a caveat by the applicant concerned to oppose the

prayer of the accused in a criminal matter. Learned Division Bench considered

the judgement of Rajasthan High Court in the case of Sahab Ram & another vs. 9

State of Rajasthan & others [2000 (2) WLN 554] which also had taken the

same view.

14. From the aforesaid discussions, the only conclusion that can be drawn is

that there is no scope for filing a caveat as required under section 148-A of the

Code of Civil Procedure in a criminal proceeding. The first question of law is

answered accordingly.

15. Let us address the second question of law, i.e. whether the informant and

the victim, who are ultimate sufferer of a criminal case, have the legal right to

appear, in a proceeding initiated at the instance of accused, through a private

lawyer as per the provisions contained under Section 301(2) of the Cr.P.C., as

well as the law laid down by the Hon'ble Supreme Court in the case of J.K.

International (Supra)?

16. Rights of a victim have undergone considerable progress through the

evolution of law, both through the judgements rendered by he Hon'ble Supreme

Court as also through the Legislative changes brought about in the Criminal

Procedure Code from time to time. In the case of Bhagwant Singh (Supra), the

Hon'ble Supreme Court held that the injured person or any relative of the

deceased who is not the informant, though not entitled to notice from the

Magistrate, has a 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. If he wants to make his submissions in regard

to the report; the Magistrate is bound to hear him. This was the situation where on

a report of the police forwarded under section 173(2)(i), relative of the injured

who died in the incident complained of, sought an opportunity to be heard at the

time of consideration of the report. The Hon'ble Supreme Court held that even if

such a person is not entitled to notice from the Magistrate, he can appear before

the Magistrate and make his submission when the report is considered by the

Magistrate for the purposes of deciding what action he should take on the report. 10

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. In the case of P.S.R. Sadhanantham vs.

Arunachalam and another [(1980) 3 SCC 141], a petition was filed under

Article 32 of the Constitution of India by the accused whose conviction has been

restored by the Apex Court on a Special Leave Petition filed under Article 136 of

the Constitution by the victim's brother against his acquittal. A plea was taken as

to whether the Hon'ble Supreme Court had the power to grant special leave to the

brother of the deceased. While considering the said issue, the Constitution Bench

of the Hon'ble Supreme Court also considered the meaning of expression "person

aggrieved" and "standing". In the said judgement, the Hon'ble Supreme Court

considered the provisions of the Code of Criminal Procedure where a right of

appeal is vested in the State and if the complainant seeks to prefer an appeal, he

ought to obtain special leave to appeal. It was observed that fetters so imposed on

the right of appeal was prompted by reluctance to expose a person who has been

acquitted by a competent court of criminal charge to the anxiety, tension and

examination of the case which may sometimes be actuated by a private party to

employ judicial process for personal vendetta. Considering the discretionary

jurisdiction of the Hon'ble Supreme Court under Article 136 of the Constitution,

however, it was observed that in every such case, Court is bound to consider

what is the interest which brings the petitioner to the Court and whether interest

of the public community will be benefited by the grant of special leave. It was

also observed that in a jurisprudence which elevates the right to life and liberty to

a fundamental priority, it is incumbent upon the court to closely scrutinize the

motives and urges of those who seek to employ its process against the life or

liberty of another. In this inquiry, the Court would perhaps prefer to be satisfied

whether or not the State has good reason for not coming forward itself to petition

for special leave. The Apex Court on consideration of all the relevant aspects held 11

that there was no justification to question the grant of special leave to the brother

of the deceased against the acquittal of the accused under Article 136 of the

Constitution.

17. The Apex Court in the case of Shiv Kumar (Supra) in the backdrop of

the provisions of sections 24 and 225 of the Cr.PC., proceeded to interpret the

purport of section 301 of the Cr.PC. also vis-a-vis 302 of the Cr.PC.. At para-12

of the said judgement, the Hon'ble Apex Court held that this particular section

301 is applicable to all the Courts of criminal jurisdiction, as could be discerned

from employment of the words "any court" in Section 301. It held as follows:

"12. In the backdrop of the above provisions we have to understand the purport of Section 301 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 courts of criminal jurisdiction. This distinction can be discerned from employment of the words "any court" in Section 301. In view of the provision made in the succeeding section as for Magistrate Courts the insistence contained in Section 301(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 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.

13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone 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, the 12

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 a 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.

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 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."

(underline added to provide emphasis)

18. The Legislative intention under the scheme of the Code for conferring the

power upon a Public Prosecutor to carry out prosecution / conduct the case in the

Sessions Court, was also considered with the underlying policy i.e. fairness in the

trial of an accused. 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 must be

couched in fairness not only to the Court and to the investigating agencies but to

the accused as well. A Private counsel, if allowed a free hand to conduct the

prosecution, would focus on bringing the case to the conviction even if it is not a

fit case to be so convicted. The Hon'ble Apex Court therefore observed that this is

the reason why the Parliament applied a bridle on him and subjected his role

strictly to the instructions given by the Public Prosecutor.

19. In the case of J.K. International (Supra), the matter related to the petition

for quashing filed by the accused before the High Court where the prayer for

impleadment as a party by the complainant was declined by the High Court. The

Hon'ble Supreme Court held that under the scheme envisaged in the Code of 13

Criminal Procedure, 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.

Considering this provision of section 301(2) of the Cr.PC., it was held that even

in the Sessions Court where Public Prosecutor is only authority empowered to

conduct the prosecution, as per section 225 of the Cr. Pc; a private person who is

aggrieved by the offence involved in the case is not altogether debarred from

participating in the trial. Further, when the trial is before a Magistrate's Court, the

scope of any other private person intending to participate in the conduct of the

prosecution is still wider, as per the provisions of section 302 of the Code. The

Supreme Court also held that under section 301(2) of the Code, under Chapter

XXIV "General Provision to Inquiry and Trial", a limited role is permitted to be

played by a private person if he is aggrieved and his presence is not wiped out

from the proceeding in the criminal trial merely because the case was charge

sheeted by the police. The Court is given power to permit such a private person to

submit his written argument in the court including the Sessions Court. If he

submits any such written argument, the court has the duty to hear such argument

before taking a decision. Judgement rendered in the case of Bhagwant Singh

(Supra) was also noticed by the Apex Court in the said case.

After considering the evolution of law as laid down by the Hon'ble

Supreme Court, so far as it relates to recognition of the rights or role of a private

person or injured in a criminal proceedings, let us now examine the provisions as

contained in Cr. PC amended from time to time.

20. Section 2(q) of the Code of Criminal procedure provides for the definition

of Pleader, which reads as under:

"2(q).- "Pleader", when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other persons appointed with the permission of the Court to act in such proceeding:' 14

21. In the Code of Criminal Procedure (Amendment) Act, 2008 brought into

effect from 31st December 2009, definition of victim has been introduced under

section 2(wa) of the Cr.PC. which reads as under:

"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."

An amendment has also been made in the nature of a proviso to section

24(8) by the same Amendment Act. The amended section reads as under:

"24. Public Prosecutors.-(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]"

22. Legislature has further brought about a significant change under section

372 of the Code relating to an appeal from a judgement or order of the Criminal

Court. By the same amendment, victim has been conferred the right to prefer an

appeal against any order passed by the Court acquitting the accused or convicting

him for a lesser offence or imposing inadequate compensation. Section 372 as

amended, reads as under:

"372. No appeal to lie unless otherwise provided.- No appeal shall lie from any judgement 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."

23. The aforesaid amendments clearly indicate the progressive recognition of

the rights and role of a victim in a criminal case as also locus granted to him to

engage an advocate of his choice for prosecution under section 24(8). The express 15

provision under which the entire issue has been argued appear at section 301 of

the Code which reads as under:

"301. Appearance by Public Prosecutor._(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."

24. Under section 301(1) of the Cr.PC., the Public Prosecutor or Assistant

Public Prosecutor has been conferred the authority to appear before the Court and

plead in any court in a case without any written authority where that case is under

inquiry, trial or appeal. Sub-section 2 thereof however provides a locus to a

private person to instruct the pleader to prosecute any person in any Court. But

such a role of a private person is imposed with curb that it is only the Public or

Assistant Public Prosecutor in-charge of the case who shall conduct the

prosecution. The pleader so instructed, shall act only under the directions of

Public Prosecutor or Assistant Public Prosecutor. The first part of section 301(2)

of the Cr.P.C therefore grants locus to the private person to prosecute any person

in any court under the directions of the Public Prosecutor or Assistant Public

Prosecutor. However, if he wants to file a written argument, the same can be done

with the permission of the court after the evidence is closed. At para-12 of the

judgement rendered in the case of Shiv Kumar (Supra), the Hon'ble Supreme

Court has clearly observed that section 301(2) impose a curb upon the counsel of

the private party and limits his role to act in the court during such prosecution

under the directions of the Public Prosecutor. The only other liberty which he can

possibly exercise is to submit the written argument after closure of the evidence

in the trial, but that too, only under the Court's permission to do so. 16

25. In case of Hari Shankar Rastogi vs. Girdhari Sharma and another

[(1978) 2 SCC 165], the petitioner appeared in person and sought permission to

be represented by another person who was not an advocate falling within the

definition of section 2-A of the Advocates' Act, 1961. The Hon'ble Court presided

over by Hon'ble Mr. Justice V.R. Krishna Iyer, J considering the provisions of

sections 29 and 30(1) of the Advocates' Act, 1961 and provisions of sections 2(q),

302, 303 and 304 of the Criminal Procedure Code, held that anyone who is not an

advocate, cannot, as of right, force himself into the Court and claim to plead for

another. Permission may, however, be granted by this Court taking the justice of

the situation and several other factors into consideration for such non professional

representation. The Hon'ble Court held that this approach accords with the policy

of the Criminal Procedure Code as spelt out in section 2(q). A pleader, by

definition, includes any person other than one authorised by law to practise in a

court if he is appointed with the permission of the Court, to act in a particular

proceeding. Court's power may well be exercised in regulating audience before it

in tune with the spirit of section 2(q) of the Code. Opinion of the Hon'ble

Supreme Court is contained in para-2 of the report, which is quoted hereunder:

"2. Advocates are entitled, as of right, to practise in this Court [Section 30(i) of the Advocates Act, 1961]. But, this privilege cannot be claimed, as of right, by anyone else. While it is true that Article 19 of the Constitution guarantees the freedom to practise any profession, it is open to the State to make a law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right. The Advocates Act, by Section 29, provides for such a reasonable restriction, namely, that the only class of persons entitled to practise the profession of law shall be advocates. Even so, is it not open to a party who is unable for some reason or other to present his case adequately to seek the help of another person in this behalf? To negative such a plea may be to deny justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of a sophisticated nature. That is precisely why legislative policy has taken care to provide for such contingencies. Sections 302, 303 and 304 of the Criminal Procedure Code are indicative of the policy of the legislature. I do not think that in this Court we should totally shut out representation by any person other than the party himself in situations where an 17

advocate is not appearing for the party. A comprehensive programme of free legal services is, in a sense, a serious obligation of the State if the rule of law were to receive vitality in its observance. Until then, parties may appear through advocates, and where they are not represented by one such, through some chosen friend. Such other person cannot practise the profession of habitually representing parties in court. If a non-advocate specialises in practising in court, professionally he will be violating the text of the interdict in the Advocates Act. I cannot allow him to do so. Nevertheless, it is open to a person, who is party to a proceeding, to get himself represented by a non-advocate in a particular instance or case. Practising a profession means something very different from representing some friend or relation on one occasion or in one case or on a few occasions or in a few cases. In the present instance, permission is sought for representation through a non-advocate. It is absolutely clear that anyone who is not an advocate, cannot, as of right, force himself into this Court and claim to plead for another. Permission may, however, be granted by this Court taking the justice of the situation and several other factors into consideration for such non-professional representation. This approach accords with the policy of the Criminal Procedure Code (I am concerned with a criminal proceeding here) as spelt out in Section 2(q). A pleader, by definition, includes any person other than one authorised by law to practise in a court if he is appointed with the permission of the court, to act in a particular proceeding. This Court's power may well be exercised in regulating audience before it in tune with the spirit of Section 2(q) of the Code."

The said judgement has also been referred to by the Hon'ble Supreme

Court in the recent judgement in the case of C. Venkatachalam vs. Ajitkumar

C. Shah and others [(2011) 9 SCC 707] where the issue before the Apex Court

was in relation to appearance of authorised agent before the Consumer Forums

under the provisions of Consumer Forum created under the Consumer Protection

Act, 1986. The Hon'ble Court in the said case, upon perusal of the provisions of

the Act of 1986, came to the conclusion that the parties have been given an option

to either appear personally or be represented by duly authorised agents. Every

advocate appointed by the party is an agent. However, the agent as contemplated

under the State and Central Rules need not necessarily be an advocate. While

interpreting the provisions of the Act and the State and Central Rules, the Hon'ble

Court advances interpretation as discernible from the legislative intent and object 18

of the consumer protection Act 1986 which is intended to help the consumer to

vindicate his right without being burdened with intricate procedures and heavy

professional fees. It is found that such provisions did not violate any provisions of

the Advocates' Act. At para-53 to 60 of such report, on dealing with the

importance of gathering legislative intention while interpreting the provisions of

law, the Hon'ble Court held that it is bounded duty and obligation of the Court to

carefully discern the legislative intention and articulate the same.

26. The inference that is obvious from the reading of the aforesaid provisions

is that appearance of a private person or a pleader can always be regulated by the

Court in any such criminal proceeding in accord with the policy of the criminal

procedure code

27. In the scheme of Criminal Procedure Code as also reflected after the

amendment introduced with effect from 31st December 2009, there appears to be

clear distinction when a legal right has been specifically conferred upon the

victim under the amended proviso to section 372 of the Code to prefer an appeal

against the judgement of acquittal or conviction of the accused for a lesser

offence or on imposition of inadequate compensation when no such clear right

earlier existed for the victim. Under the provisions of section 378(4) of the code,

in cases of acquittal in a case instituted upon complaint, the complainant could

make an application for grant of special leave to appeal from the order of acquittal

and only upon grant of such leave, he could prefer such an appeal before the High

Court. Under the provisions of the Code specifically section 378 of the Cr. PC, in

case of acquittal it was only the District Magistrate who can direct the Public

Prosecutor to present the appeal to the Court of Sessions from the order of

acquittal passed by a Magistrate in respect of a cognizable and non-bailable

offence. While under section 378(1)(b), the State Government may, in any case,

direct the Public Prosecutor to present the appeal to the High Court from the

Original or Appellate Order of acquittal passed by any Court other than the High 19

Court or the order of acquittal passed by the Court of Sessions in revision.

Therefore, on one hand, specific legal right has been created in favour of the

victim giving him a right to appeal under the amended proviso to section 372 of

the Code on the other hand under the amended proviso to section 24 of the Code,

introduced with effect from 31st December 2009, the Court may permit the victim

to engage an advocate of his choice to assist the prosecution. The aforesaid

provision therefore confers a discretion upon the Court to permit the victim to

engage an advocate of his choice. The victim though has a locus to engage an

advocate / pleader in a criminal proceeding, but it is subject to the permission

granted by the Court and cannot be extended to mean that the victim has been

conferred a legal right which can be exercised. Under section 301(2) of the Cr.P.C

also which exists from before and as has been interpreted by the judgement of the

Hon'ble Supreme Court in the case of Shiv Kumar (Supra), as also in the case of

J.K. International (Supra), a counsel engaged by a private party has a limited

role to act in the Court during such prosecution under the direction of the Public

Prosecutor. The only other liberty which he can possibly exercise is to submit

written argument after the closure of the evidence in the trial, but that can be done

only if the Court permits him to do so. Therefore, on conjoint reading of the

amended proviso to Sections 24(8) and 301(2) of the Code, the legislative

intention is evident that a victim or a private person has locus to appear through a

pleader to assist the prosecution in any case where inquiry, trial or appeal is

pending in any court. The expression 'Court' would mean all the Courts of

Criminal Jurisdiction. Therefore, in a proceeding initiated for grant of bail under

section 439 Cr.P.C. which are in the nature of special powers upon the High

Court and the Court of Sessions, a Private person or the victim has a locus to

appear and oppose the prayer for grant of bail by the accused. However, it is

within the discretion of the Court to permit appearance of a victim or a private

person in order to assist the prosecution. The Court, in exercise of such discretion, 20

may have several factors in mind including as to whether the presence of a private

person would provide further assistance to the Public Prosecutor to effectively

assist the Court in arriving at a proper and fair conclusion; that there may be

attendant facts which may not be in the knowledge of the Public Prosecutor which

may be brought to the notice of the Court through such assistance. Whenever a

discretionary power is conferred upon the Court of law consciously by the

Legislature, it is rather wise and advisable not to limit that power in a straight

jacket formula, but leave it to the Court concerned to exercise such power in a

judicious manner in the facts and circumstances of the case. [See (2003) 6 SCC

675 Surya Dev Rai vs. Ram Chander Rai and others, para-39].

28. Upon survey of the law evolved through the pronouncements of the Hon'ble

Supreme Court, the legislative Changes which has progressively occurred towards

the recognition of the role and rights of the victim in a criminal trial, and the

discussions made herein above, it can be said that the victim or a private person

has the locus to appear in a proceeding initiated at the instance of the accused in

any case before any Court where it is a affected party, however subject to the

discretion conferred upon the Court, to be exercised in the manner and to the

extent, as may be required in the facts and circumstances of a particular case.

"Locus Standi" has been defined in the Blacks Law Dictionary as "the right to

bring an action or to be heard in a given forum." As per the Law Lexicon by P

Ramanatha Aiyar "Locus Standi" signifies a right of appearance in a Court of

Justice or right to be heard or place of standing. Such a Locus Standi confers on a

person only if he has a interest in the matter. The victim / private person in that

sense does have a interest in the matter since it is the ultimate sufferer of such

crime. However, u/s 301(2) of the code, the legislature has consciously regulated

it in the manner that the Pleader so instructed by a private person, shall act in any

such case under the directions of the Public Prosecutor only and not as an

absolute legal right of independent appearance before the Court. The aforesaid 21

provision is therefore in clear distinction from the specific provision u/s 372

proviso of the code conferring upon the victim a distinct legal right to prefer an

appeal which was not earlier available to him under the unamended section 372.

The conscious distinction made by the legislature in the wording of the two

provisions is apparent and with a definite legislative purpose and intent. If such a

view is taken that the victim / private party or the informant has legal right to

appear in a proceeding initiated at the instance of the accused under the

provisions of Section 301(2) of the Cr.PC read with Section 24(8) proviso, it

would mean that the victim / private party is a necessary party in every such

proceeding and as a matter of right, is entitled to notice before the proceedings are

heard and decided. Such a course of Interpretation would amount to creating a

specific legal right which the legislature never intended to confer upon the

victim / private person. Such interpretation is neither desirable nor appropriate for

a Court of law while undertaking the task of interpreting the specific language

used in the Statute keeping into mind the Statute as a whole and the aim and

object which it seeks to achieve.

29. At the same time, it also has to be held that a locus standi has been

consciously conferred by the Legislature upon the victim / private person to

appear in a proceeding initiated at the instance of the accused under the amended

proviso to section 24(8) and section 301(2) of the Code in recognition of its role

as the ultimate victim / sufferer of such crime. Such locus standi can be exercised

by a private person / victim through a Pleader in the manner as prescribed under

the rules of procedure for appearance prevalent in the Court such as through a

vakalatnama. However, the legislature supremely conscious of the requirement of

role of a Public Prosecutor in the impartial and fair conduct of the trial, not guided

by the urge to somehow reach to conviction of an accused, rather enabling the

Court to reach to the truth of the matter, has definitely limited the role of a victim

or a private person, so far as its assistance in the matter is concerned. The second 22

question of law under reference is accordingly answered in the aforesaid manner.

In view of the aforesaid exposition of law, the view expressed by the learned

Division Bench to the contrary is not the correct law.

Let the matter appear before the learned Single Judge for considering the

same on merits on 28th July 2014 at the top of the list.

(Aparesh Kumar Singh, J)

(Prashant Kumar, J) ................. (Prashant Kumar, J)

(Amitav K. Gupta, J) .................. (Amitav K. Gupta, J)

Ranjeet/N.A.F.R.