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BEFORE
THE HONBLE MR. JUSTICE I A ANSARI
Advocates present:
For the petitioner : Mr. D. Baruah, Mr. K Saharia,
Mr. P.P. Das,
Ms. S. Baruah,
For the respondent : Mr. D. Das, Addl. Public Prosecutor,
Assam.
For the Opp. Party. No.3 : Mr. J.M. Choudhury, Senior Advocate.
Mr. R.C. Paul, Mr. C Phukan,
Ms. S Roy,
Fairness of trial does not mean that the trial has to be fair to the
accused alone. Equally important is that the trial is fair to the person
aggrieved or whose near and dear ones are aggrieved. When police
or veracity of the allegations, which the police receive, the State cannot act,
not merely a trial, which has to be impartial. No less important it is that the
short, an investigation must not suffer from any ulterior motive or hidden
enshrines, when we say that our Constitution guarantees fair trial. (See
Rana Sinha @ Sujit Sinha vs The State of Tripura & Ors. reported in (2011) 5
GLR 388)
2. With the help of this application, made under Section 482 Cr.P.C.,
the petitioner, who is the informant of Margherita Police Station Case No.
408/420 IPC, has sought for setting aside and quashing the order, dated
declining to direct further investigation into the said case, in terms of the
already been taken, process has already been issued against the accused-
opposite party No. 3 herein, namely, Sri Ashutosh Talukdar, the accused-
opposite party No. 3 has already entered appearance and that Section 311
Cr.P.C. read with Section 319 Cr.P.C., give sufficient power to the Court to
unearth the truth and, in the context of the facts of the present case, no
order for further investigation, as has been sought for by the informant, is
necessary.
3. The material facts emerging from the record and leading to the filing
of the present application, under Article 482 Cr.P.C., are, in brief, set out as
under:
Companys Act, 1956, with its registered office at Kolkata and owns
various tea gardens, in the State of Assam, including a tea garden, which is
run under the name and style of Namdang Tea Estate, situated at
Estate. Being the Head Clerk, the opposite party No. 3, according to the
was also entrusted with the duty to not only prepare vouchers, but make
payments.
were disbursed to the third parties, the petitioner states that based on
cash is withdrawn from the bank by the said tea estate and kept in the safe,
which remains in the custody of the Manager of the said tea estate, the said
safe of the petitioners tea estate being operated jointly with two different
keys at a time; while one key remains with the Manager of the said tea
estate, the other is kept by the Head Clark and that the Head Clark takes
out cash from the safe, in the presence of Manager, according to the
requirement of a given day. The cash, lying in the safe, is either withdrawn
on the same day or the subsequent day by the Head Clark as per
exigencies. The cash is withdrawn on the basis of the vouchers, which the
Head Clark prepares, and the amounts, mentioned in the vouchers, are
entered into the computer of the said tea estate and, upon making entry in
this regard, the computer generates a cash book (in the printed form) and,
Tea Estate, that the accused, as Head Clark, had manipulated the cash
conducting audit by one Sri Tejash Kr. Bhattacharjee, one of the auditors of
actually paid. The consequence was that the cash entries, made in the
computer, were larger than that of the physical cash book, which the
accused himself had maintained, and, during the audit, the total of such
from the days total of cash payments in the cash book maintained by the
accused. It was also found, according to the informant, that the accused
had fraudulently prepared different cash books with missing entries and
wrong total of payments and produced the same before the Manager. The
auditor also found that false and fictitious entries had been made in the
when the auditors checked the printed cash book signed by the Manager.
The modus operandi of the accused, according to the informant, was thus:
The days total of cash payments, in the cash copies, were manipulated by
showing a higher total disbursement than the actual amounts paid and a
lower cash balance and thereby the requirement for cash were inflated.
payments in the system and found that the number of cash entries,
appearing in the system, were more as compared to the entries in the cash
book (in physical form), signed by the Manager, and the total of the extra
found in the days total of cash payments in the copies of cash book signed
by the Manager. This reflected that the accused, who had been entrusted
with the responsibility to prepare cash book and produce the same before
cash books with missing entries and wrong total for payment and
produced the same before the Manager. All the additional entries of cash
payments, appearing in the cash book, in the computer system (and not in
printed form), were not supported by any voucher whatsoever, the entries,
thus, being all fake and willfully inserted in the system to cover up the
difference between the actual and enhanced cash expenses. The accused
also deleted/suppressed, in the system, the fake entries and the print-outs
suppressing the voucher, were given, in the printed form, by the Head
Clark to the Manager and he (accused) got the latters signatures obtained
thereon. However, the days total, in the system, being not changeable in
the system, remained unaltered in the printed cash book copies signed by
preparing the cash book in the computer, would enter 100 entries of which
the said cash book prepared in the computer, the accused manipulated the
the 90 entries, which were reflected in the printed version of the cash book,
and the 100 entries, which were reflected in the cash book maintained in
the computer system, the total would always remain the same. In other
words, the total of 100 payment vouchers and the total of 90 genuine
would be the same. The extra amount, (i.e. the total 10 fraudulent
(a) One Safe Book of Namdang Tea Estate containing Reg. NO.1 to
98.
wherein the Managers had put their signatures, and the fact that the
seizure of the printed cash book was necessary, because the same were
wider piece of evidence, for, without comparing the printed cash book,
signed by the Managers, with the cash book, maintained in the computer,
it was not possible to prove the offence, which, according to the informant,
the accused had committed. This apart, during the course of investigation,
Shri Tejesh Kumar Bhattacharjee, one of the auditors, who had conducted
the audit as well as the Managers, who had signed the cash book, were not
examined as witnesses and their attendance were never sought for by the
charge-sheet also reveals, points out the petitioner, that the said persons
the charge-sheet. In this regard, it is also brought to the notice of this Court
by the petitioner that the accused had filed as many as four applications
for pre-arrest bail, under Section 438 Cr.P.C., in the High Court, but all the
said applications were rejected and in the last Bail Application No.
2955/2009, the Court had, while rejecting the bail application, directed the
below the directions, which had been passed in Bail Application No.
the accused person had neither surrendered nor has he been produced
the accused.
investigating officer knew each other. They knew that in view of the order
passed by this Court in Bail Application No. 2955/2009, the accused would
not be granted bail and yet, in perfunctory and haphazard manner, the
09-2009, showing him as absconder. The said charge-sheet was taken note of
under Sections 408/420 IPC was taken and, having taken note of the fact
Magistrate, vide his order, dated 23-10-2009, transferred the case to Shri A
29-10-2009, the accused, who had all along been absconding, appeared in
the trial Court and sought for bail even though no summon had been
issued by the learned trial Court and the learned trial Court, without
considering the earlier rejection of the application for pre-arrest bail and
also the fact that the direction given by the order, dated 24-07-2009, passed,
complied with by the accused, granted bail to the accused on the ground
that the accused had appeared before the Court to face trial and fixed the
further investigation and, in this application, the informant stated that the
petitioner had reason to believe that it was for reasons other than bona fide
that the investigating officer had conducted the investigation in the most
petitioner, had also requested the learned trial Court to allow him to assist
above, has rejected the petition made under Section 156(3) and also the
prayer made for allowing the petitioners counsel to assist the Public
(ii) Whether the Courts power, under Section 311 and Section 319, can
be effective substitute for further investigation?
(iii) Whether Section 302 read with Section 301 of the Code of Criminal
Procedure, 1973, envisages that for grant of leave from a Magistrate
for a private lawyer to appear before the Magistrate, a No Objection
is required from the Public Prosecutor?
(iv) Whether in the facts and circumstances of the instant case, a further
investigation is called for?
submits that the facts, as narrated in the present application made under
Section 482 Cr.P.C. and the materials on record would go to show that the
help the accused. The investigation was, according to Mr. Baruah, wholly
it is necessary that unless the vital omissions, in the investigation, and the
11. Mr. Baruch points out that though the application, filed on behalf of
the petitioner, was made under Section 156(3), the fact remains that what
the petitioner had really sought for was a direction for further investigation
under Section 173(8) CrPC and, though the learned Magistrate may not
12. Though Mr. Baruah does not, in specific term, challenges the fact
that no direction for further investigation could have been passed by the
learned Court below, because cognizance had already been taken, Mr.
Baruah contends that the limitation, which the learned Court below suffers
from, is not applicable to this Court inasmuch as this Court, under Section
fact that the petitioner had made the application, seeking further
made under Section 173(8) Cr.P.C. and if this Court is satisfied that such a
CrPC.
13. Support for his submission that the High Court is empowered,
reliance on the case of State of Punjab vs CBI, reported in (2011) 9 SCC 182,
and the case of Rana Sinha @ Sujit Sinha vs The State of Tripura & Ors.
reported in (2011) 5 GLR 388. Mr. Baruah, in this regard, also refers to the
case of Reeta Nag vs- State of West Bengal and others, reported in (2009) 9
SCC 129, and Randhir Singh Rana vs- State (Delhi Administration), reported
petition is filed, is irrelevant so long as the Court possesses the power, Mr.
Baruah refers to Pepsi Foods Limited vs- Special Judicial Magistrate (AIR
1998 SC 128).
15. On the basis of the authorities cited above, Mr. Baruah contends that
unfair and/or when the investigation is tempered, the High Court has the
justice so that fair trial takes place and this can be achieved, in the present
hand, the learned trial Court was wholly justified in declining to direct
further investigation, because the learned Court below had already taken
Mr. Choudhury, with a Magistrate so long as he has not accepted the police
report submitted by the police under Section 173(2) CrPC. This apart,
Section 156(3) CrPC, which was not applicable to the facts of the case at
hand after the charge-sheet had already been submitted, for, Section 156(3)
before he takes cognizance and not after he has already taken cognizance.
The investigation, in the present case, if unfair, can very well be, according
Section 319 CrPC, or else, it is the police, which may decide, in a given
noted that Mr. Baruah is wholly correct, when he submits that the
sought for. The reference, made by Mr. Baruah, in this regard, to the case
of Pepsi Foods Limited Vs. Special Judicial Magistrate (AIR 1998 SC 128), is
not wholly misplaced. Viewed from this angle, it is clear that though the
petition was filed, in the present case, by the informant, under Section
the fact of the matter remains that Section 156(3) Cr.P.C. does not deal with
has already submitted its report either in the form of charge-sheet or in the
form of final report informing the Court that there is no material at all or
18. A Division Bench of this Court, to which I was one of the parties, in
Rana Sinha @ Sujit Sinha (supra), has clearly drawn the distinction between
Section 173(8) Cr.P.C. The Division Bench, in Rana Sinha @ Sujit Sinha
(supra), has also drawn the distinction between a further investigation and
re-investigation.
19. In the light of the fact that a further investigation is carried out by
on his own, cannot order further investigation after he has already taken
clearly emerges from the case of Randhir Singh Rana (supra), wherein the
Court, while holding that a Magistrate cannot, on his own, direct further
11. The aforesaid being the legal position as discernible from the various
decisions of this Court and some of the High Courts, we would agree, as
presently advised, with Shri Vasdev that within the grey area to which we
have referred the Magistrate, of his own, cannot order for further
investigation. As in the present case the learned Magistrate had done so,
we set aside his order and direct him to dispose of the case either by framing
the charge or discharge the accused on the basis of materials already on
record. This will be subject to the caveat that even if the order be of
discharge, further investigation by the police on its own would be
permissible, which could even end in submission of either fresh charge-
sheet.
(Emphasis added)
20. The legal position, emerging from the case of Randhir Singh Rana
(supra) and, having analysed the law on the subject, the Supreme Court
has reiterated, in Reeta Nag (supra), its earlier decision, in Randhir Singh
Rana (supra), by taking the view that a Magistrate cannot, having taken
25. What emerges from the abovementioned decisions of this Court is that
once a charge-sheet is filed under Section 173(2) CrPC and either charge is
framed or the accused are discharged, the Magistrate may, on the basis of a
protest petition, take cognizance of the offence complained of or on the
application made by the investigating authorities permit further
investigation under Section 173(8). The Magistrate cannot suo motu direct
a further investigation under Section 173(8) CrPC or direct a
reinvestigation into a case on account of the bar of Section 167(2) of the
Code.
26. In the instant case, the investigating authorities did not apply for
further investigation and it was only upon the application filed by the de
facto complainant under Section 173(8) was a direction given by the
learned Magistrate to reinvestigate the matter. As we have already
indicated above, such a course of action was beyond the jurisdictional
competence of the Magistrate. Not only was the Magistrate wrong in
directing a reinvestigation on the application made by the de facto
complainant, but he also exceeded his jurisdiction in entertaining the said
application filed by the de facto complainant.
21. In the light of the position of law, as surfaced from the decision in
Randhir Singh Rana (supra) and Reeta Nag (supra), a Division Bench of this
Court clearly held, in Rana Sinha (supra), that a Magistrate cannot direct
on his own, it is not possible for him to hold that he can direct further
155. In the light of what has been observed option but to conclude and, in
fact, it is not even disputed that Ranbir Singh Rana (supra) lays down that
a Magistrate cannot, of his own, direct further investigation to be
conducted by the police if cognizance has already taken and the accused
has entered appearance. Rannbir Sinha Rana (supra) also clearly lays
down that a Magistrate cannot, in the name of advancing the cause of
justice, or to arrive at a just decision of the case, direct further investigation
to be conducted by the police if he does not, otherwise, have the power to
direct such further investigation meaning thereby that since a Magistrate
does not have the power to direct, on his own, further investigation after
cognizance has already been taken and the accused has entered
appearance, he cannot direct such further investigation of his own for the
purpose of advancing the cause of justice or even to arrive at a just
decision of the case.
156. No way, therefore, a Magistrate can direct further investigation of
his own and if he cannot direct further investigation of his own, it is not
possible to hold that he can direct such an investigation on the basis of
any petition filed by the informant, de facto complainant, aggrieved
person or the victim.
(Emphasis is added)
22. The question, therefore, which stares at us is: Whether the High Court,
in exercise of its power under Section 482 Cr.P.C., or in exercise of its power
under Article 226 and or 227 of the Constitution of India, can direct further
revealed from the police report submitted under Section 173(2) CrPC, has already
been taken ?
High Court to direct, in exercise of its power under Section 482 Cr.PC, or,
to this question has been given, in Rana Sinha (supra), which is reproduced
hereinbelow:
199. Considering the fact that we have already held that a court cannot,
on the basis of an application made by the informant, de facto complainant
or victim, order further investigation to be conducted by the police, when
the trial has already commenced, it logically follows that even if the
grievances of the son of the deceased couple, in the present case, had any
the Supreme Court has held, in Kishan Lal (supra), that in a given
situation, the superior Court, in exercise of its Constitutional power,
namely, under Articles 226 and 32 of the Constitution of India, can direct
the State to get an offence investigated and/or further investigated by a
different agency. The relevant observations, made by the Supreme Court,
in this regard, read thus:
The investigating officer may exercise his statutory power of
further investigation in several situations as, for example, when
new facts come to his notice; when certain aspects of the matter
had not been considered by him and he found that further
investigation is necessary to be carried out from a different angle(s)
keeping in view the fact that new or further materials came to his
notice. Apart from the aforementioned grounds, the learned
Magistrate or the superior courts can direct further investigation, if
the investigation is found to be tainted and/or otherwise unfair or is
otherwise necessary in the ends of justice.
[Emphasis is added]
205. The order impugned, in the writ petition, could not have been said to
be an illegal order to the extent that the same declined further investigation
on the basis of the present appellants petition filed in the learned trial
Court. Seen in this light, when the impugned order was not illegal, the
question of reversing the order, by taking recourse to supervisory
jurisdiction of the High Court under Article 226, could not have validly
arisen.
206. The question as to whether the present appellants grievances
against alleged unfair and manipulated investigation are justified or not
and, if justified, whether the learned Single Judge ought to have, in the facts
and attending circumstances of the present case, directed further
investigation, is a question, which needs to be, now, answered in this
appeal.
207. While considering the above aspect of this appeal, one has to also
bear in mind that the prayer made by a party, in any criminal or civil
trial, shall not be the sole determining factor as to whether a person is or
is not entitled to the relief, which he has sought for. If the law, on the
basis of the facts brought on record, requires a relief to be given to a
party, such a relief ought not to be disallowed merely because the party
has not specifically sought for such a relief unless, of course, the party
concerned himself refuses to receive such a relief.
does not apply to, or disable, the High Court from directing further
the case of State of Punjab Vs. CBI, reported in (2011) 9 SCC 182, too. The
24. It is clear from the aforesaid observations of this Court that the
investigating agency or the court subordinate to the High Court exercising
powers under CrPC have to exercise the powers within the four corners of
CrPC and this would mean that the investigating agency may undertake
further investigation and the subordinate court may direct further
investigation into the case where charge-sheet has been filed under sub-
section (2) of Section 173 CrPC and such further investigation will not
mean fresh investigation or reinvestigation. But these limitations in sub-
section (8) of Section 173 CrPC in a case where charge-sheet has been filed
will not apply to the exercise of inherent powers of the High Court under
Section 482 CrPC for securing the ends of justice.
said application, the fact remains that the learned trial Court had
the learned trial Court, having already taken cognizance of offence on the
basis of the charge-sheet already filed by the police, could not have directed,
in the light of Randhir Singh Rana (supra), Reeta Nag (supra) and Rana
Sinha (supra), further investigation. This would not, however, disable this
Court from directing further investigation into the case if the facts of the case
so warrants.
27. From the decision in Randhir Singh Rana (supra), Reeta Nag (supra)
under Section 482 Cr.P.C., and even under its supervisory jurisdiction
in exercise of its power under Article 226 of the Constitution of India, not
only has the power, but even owes a duty to direct further investigation
28. The question, which, now, arises for consideration is: Whether in the
case at hand, the direction for further investigation ought to be given by this
Court?
29. Because of the fact that further investigation has been sought for by
30. While considering the above question, one needs to note that the
bias or prejudice, without any ulterior motive and every fact, surfacing
chosen agency, is not motivated, reckless and that the Investigating Officer
acts in due obedience to law. It is only when the State ensures that the
investigation is fair, can it (the State) be able to say, when questioned, that
the trial conducted was a fair trial. Article 21, therefore, does not vest in
only an accused the right to demand fair trial, but it also vests an equally
important right, fundamental in nature, in the victim, to demand a fair
trial. Article 21 does not, thus, confer fundamental right on the accused
alone, but it also confers, on the victim of an offence, the right, fundamental
in nature, to demand fair trial.
31. It needs to be borne in mind that the allegation against the accused is
that he, being a clerk, committed the offence of criminal breach of trust by
criminal breach of trust as defined under Section 405 IPC. Section 405 IPC
reads:
prove the following to bring home the charge of criminal breach of trust.
(i) That the accused was entrusted with property or with any dominion
over property
(ii) That the accused violated the direction of law prescribing the mode
(iii) That the accused did the aforesaid acts driven by dishonest
intention.
33. It is equally important that the facts relevant to the facts in issue be
investigation.
basic ingredients of the offence of criminal breach of trust not to ensure the
the Cash Book and thereby siphoned off huge amount of money of the
petitioner is that the accused was entrusted with the duty of preparing and
maintaining cash book. What the accused did was that he maintained one
cash book in the computer system and another cash book in the physical
form. In both these cash books, though the days total of cash remained the
same, but in the cash book, which has been maintained in the computer,
vouchers, but, in the physical cash book, the entries, as regard fraudulent
vouchers, were absent. It is in this manner that the accused had allegedly
part of the investigating agency, to seize both the cash books, i.e. the cash
book maintained in the computer and the cash book maintained in the
if any, committed by the accused without comparing the two cash books,
namely, Dipen Bordoloi and Ramanuj Das Gupta, who had signed the
printed version of the cash book, would not only be relevant and
important, but indispensible for effective investigation and fair trial if the
prosecution has to prove its case against the accused. For no reason, either
assigned or discernible from record, the physical cash book was not seized
which have been made against the accused. Seen thus, it is clear that
Tejesh Kumar Bhattacharjee, Dipen Bordoloi and Ramanuj Das Gupta are
during the course of investigation, did not even examine these witnesses or
38. From what have been indicated above, it becomes clear that the
being inherently defective and lacking in all requisites, would not end in a
fair trial. This would, therefore, cause, unless suitably interfered with,
39. While considering the above aspect of the case, one cannot ignore
the fact that the accused had been an absconder throughout the period of
arrested and despite the fact that four anticipatory bail applications, made
by the accused, had been dismissed and, in the last application for pre-
arrest bail, he was directed to surrender in the learned Court below, he did
not carry out the order and yet he was allowed to go on bail. This gives an
indication that the investigating officer was either helping the accused or
has conducted the investigation in a manner, which would have the effect
and cannot, therefore, be sustained. The investigation is, thus, unfair and
There is, therefore, no doubt that the present one is a fit case for directing
40. Can the power, conferred on a Court, under Section 311 read with
173(8) CrPC ?
41. Coming to the question, which the learned Court below has raised
that it has the power under Sections 311 and 319 to examine any witness
and call for any document and the same would be sufficient substitute for
Rishbud Vs. State of Delhi (AIR 1955 SC 196), concluded that investigation
consists of (i) proceeding to the spot (ii) ascertainment of the fact and the
statement into writing, if the officer thinks fit (b) the search of a place or
produced at the trial and (iv) formation of the opinion as to whether by the
Magistrate.
by the Supreme Court, then, in that case, can the above be substituted by
taking recourse to Section 311 and 319 of the Code is the question before
this Court. The answer to the question, which has so arisen, can be found
in this Courts decision, in Rana Sinha (Supra), at paragraphs 194, 195 and
196 as under:
194. Before proceeding further, it needs to be noted that section 311 of the
Code, cannot be a substitute for investigation or further investigation
inasmuch as investigation does not consist of only examination of
persons acquainted with the facts of a given case either as witnesses or as
accused; rather, investigation involves various other steps, such as, search
and seizure. Investigation may also include various forensic
examinations.
195. Merely on the ground, therefore, that section 311 empowers the court
to examine any witness at any stage in order to enable it to arrive at a just
decision of the case, it cannot be said that section 311 would serve the
purpose of an effective, unbiased and fair investigation. In every case,
Section 311 is not necessarily a remedy for a manipulated and motivated
investigation.
196. Similarly, Section 319 merely empowers the court to add a person as
an accused if the evidence on record reveals involvement of such a person as
an accused. Section 319 too cannot become a substitute for an effective
investigation so as to determine whether a person is or is not involved in
an occurrence and whether he is required to be brought to face trial. Thus,
neither section 311 nor section 319 can be treated as a complete substitute
for a fair investigation.
(Emphasis is added)
43. Yet another question, which has been raised in the present
application, made under Section 482 Cr.PC., is: Whether in a case, which is
Public Prosecutor ?
44. The above question has arisen, because of the fact that the learned
trial Court has rejected the request made by the learned counsel for the
informant to assist the Public Prosecutor and the reason, assigned by the
learned trial Court, in this regard, is that in a session triable case, it is the
the case. For this, the learned trial Court has drawn support from the
decision in Shiv Kumar Vs. Hukum Chand and another, reported in (1999) 7
SCC 467.
45. While considering the decision, in Shiv Kumar (supra), I may pause
here to point out that under the scheme of the Code, a sessions trial is
charge-sheet against the accused under Section 409 IPC, which is not
46. In Shiv Kumar vs. Hukam Chand and Anr. , reported in (1999) 7 SCC
467, the appellant, who carried the matter to the Supreme Court, was
aggrieved, because the counsel, engaged by him, was not allowed by the
this regard, from the Public Prosecutor concerned. In fact, in Shiv Kumar
filed a revision in the High Court. The High Court allowed the revision
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
47. By the time the aggrieved party challenged the High Courts order,
trial was already over. Considering, however, the importance of the issue
involved, in Shiv Kumar (supra), the Supreme Court decided the issue of
consents thereto ?
48. 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
pleader to prosecute, but the trial has to be still conducted by the Public
Prosecutor or Assistant Public Prosecutor, as the case may be, and the
pleader, so instructed by the private party, shall act under the Public
Supreme Court, therefore, pointed out that the latter provisions, contained
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 the person, who conducts prosecution in a Magisterial Court, need not
to a Court of Session inasmuch as Section 225 of the Code states that in any
but any counsel, engaged by an aggrieved party, has to act under the
Kumar (supra), thus: From the scheme of the Code the legislative intention is
one other than the Public Prosecutor. The legislature reminds the State that the
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
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
applied a bridle on him and subjected his role strictly to the instructions given
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
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 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
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
51. A conjoint reading of Section 301 and 302 of the Code would show
that the scheme of the Code is that while it is the Public Prosecutor in
charge of the case, who must conduct the prosecution, in a session triable
any person. It has, therefore, been held, in Shiv Kumar (supra), that Section
302 is intended for Magisterial Courts only and this Section, i.e., Section
subject to the condition that the Magistrate cannot give such permission to
a police officer below the rank of Inspector. The Supreme Court has also
from the fact that the word employed, in Section 301, is any court. Section
301(1) empowers the Public Prosecutor to plead, in the Court, without any
Section 301(2) limits the role of the counsel by allowing him to act under
the direction of the Public Prosecutor with, of course, the liberty to submit
52. With respect to Section 302, which applies to the Magistrates courts,
any person, except a police officer below the rank of Inspector, can conduct
observations of the learned trial Court, in the present case, that consent has
which read:
7. 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 enquiring 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.
8. 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
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.
53. While considering the above aspect of the law, one may also take
wherein the Court has held that a private person, who is permitted to
the needful, in the Court, on his behalf. The Supreme Court has also
and, if the Court takes the view that cause of justice would be served better
under:
54. This Court had an occasion to deal with the above aspects of law in
Firoz Khan and another Vs. State of Assam, reported in (2009) 1 GLT 399, and
taking note of the decision, in J.K. International (supra), the Court has
person, who is victim, to have his say on the conduct of trial. The logical
17. In the case of J.K. International (supra), the Apex Court had the
occasion of deal with the provisions of Section 302, CrPC, but the
observations made in paragraph-9 has got relevance to the present case,
wherein the Apex Court held, inter alia, that the scheme envisaged in the
Code of Criminal Procedure indicates that a person who is aggrieved by
the offence committed is not altogether wiped out from the scenario merely
because the investigation was taken over by the police and charge sheet filed
by them and even the Court has taken cognizance of the offence and the
Code has not debarred him from reaching the Court for ventilating his
grievance even in the Sessions Court where the Public Prosecutor is the
authority empowered to conduct the case as per Section 225, CrPC, and he
or she is not altogether debarred from participating in the trial. When such
a role is permitted to a private lawyer though it is limited role, even in the
sessions case that is enough to show that the private person, if aggrieved, is
not wiped out from the proceeding in the Criminal Court.
18. It is noteworthy that the recent trend in criminal jurisprudence goes
to show, which is also the anxiety of the people that in a criminal case
instituted on the basis of an FIR lodged by the victim/informant, he should
be allowed to say, inasmuch as, the limited role allowed to a complainant
under Section 301(2), CrPC, is not sufficient to protect the interest of the
victim who might be silently weeping behind the screen suffering from the
criminal act committed by the accused and this has lead to emergence of a
new concept of victimology in the criminal jurisprudence. However, that
is the function of the legislature and not of the Court to incorporate.
19. The aforesaid discussions lead me to hold that when the Public
Prosecutor has not abdicated himself from his role and constantly
supervises and conduct the prosecution case, there is no bar in any law to
engage private lawyer by the complainant/victim to examine the witnesses,
which is also not specifically barred by the Code in express terms. However,
it is the presiding Judge who is the best authority to monitor and see as to
whether the Public Prosecutor has abdicated his duties and responsibilities
and in allowing the private lawyer to assist the prosecution and act as per
the facts situation arising in a particular case. The learned Advocate
General, in the backdrop of the above provisions of law did not notice any
flaw in the impugned order.
55. In the case at hand, it is clear that since trial is being held against the
reason, ought not to have asked the informant to obtain permission from
the Public Prosecutor; rather, the learned trial Court ought to have granted
56. I have already pointed out that a defective, biased or mala fide
but fair investigation too form part of the Constitutional rights guaranteed
Babu Bhai vs. State of Gujarat and Ors., (MANU/SC/0643/2010), wherein the
those, who are in charge of an investigation, is made out, the court should
field of activity reserved for the police and the executives. Commenting on
this aspect of law, the Supreme Court observed, in Babu Bhai (supra), thus:
21. .The manner in which the investigation has been carried out as
well as the manner in which these cases have been conducted before this
Court, clearly indicate that the investigation is not fair and impartial and
as such the investigating agency cannot be permitted to continue.
31. Unless an extra ordinary case of gross abuse of power is made out
by those in charge of the investigation, the court should be quite loathe to
interfere with the investigation, a field of activity reserved for the police
and the executive. (Emphasis is added)
58. At any rate, there is no difficulty in the State seeking permission for
desirable that the police should take formal permission from the court for
already discussed above, that in all cases and in every situation, the police
need not take formal permission from the Court before conducting further
information received by the police, the police may justifiably form the
investigation. After the trial starts, the police cannot obtain permission for
informing the accused person. If the accused person is informed that police
Disclosure of the fact, which may have given rise to the requirement of
the accused becomes aware of an aspect of the case which the police wants
laid down, in A.S. Peter (supra), that in every case, the police need not take
formal permission from the court for conducting further investigation and,
in the case of Hasanbhai Valibhai Qureshi (supra), the Supreme Court has
out, the investigation is unfair and such an unfair investigation cannot give
bound to prevent.
60. In the result and for the foregoing reasons, this application, made
into the case and, then, submit additional report in terms of the provisions
of Section 173(2) of the Code and till the time an appropriate police report
No. 276 of 2008 (Margherita Police Station Case No. 111 of 2008) shall
remain Stayed.
61. Before parting with this application, it is, however, made clear that
62. With the above observations and directions, this Criminal Petition
JUDGE
rk