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Kanhu Charan Prusty Vs. Sarat Kumar Mohapatra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1971CriLJ740
AppellantKanhu Charan Prusty
RespondentSarat Kumar Mohapatra and anr.
Excerpt:
.....to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - the public prosecutor, and as such in his hands the prosecution was not safe. it is too well known that in sessions cases which are initiated by private complainants the complainants lose position when the pases are committed and come up for trial before the court of session. i, therefore, during the hearing of this revision, called upon the learned..........prosecution and he is allowed to retire. this fact should have been brought to the notice of the state government much earlier.on behalf of the complainant kanhu charan prusti at whose initiation this case has been started has filed two petitions one for directing the accused not to use the police dress while appearing in court and another for debarring sri s. s. misra, p. p. from defending the accused in this case. since p. p. has retired from the case there is none on behalf of the state government to say anything on the petitions filed on behalf of the complainant and in the absence of p. p. no order can be passed on these petitions. sri. s. s. misra (p. p.) who is defending the accused in this case also wants to file counters to these two petitions. in any event the trial of this.....
Judgment:
ORDER

R.N. Misra, J.

1. The complainant in Case No. I. C. C. 8 of 1966 on the file of the Sub-divisional Magistrate, Bolangir is the petitioner. The opposite party No. 1 is a Sub-Inspector of Police. After the evidence in the said case was taken, bv the order dated 30-9-69 the learned S. D. M. committed the opposite party No. 1 to stand his trial in the Court of Sessions for offence punishable Under Sections 218. 403. 504 and 323 I, P.C. On the basis of the said commitment proceeding Sessions Case No. 6/B of 1969 was registered. The learned Sessions Judge transferred the said case to the file of the Assistant Sessions Judge of Bolangir by his order dated 27-10-69. This case was re registered as Sessions Case No. 11/6/B of 1969. On 5-1-70, the accused appeared. The Assistant Public Prosecutor appeared for the State and the Public Prosecutor for the accused. The case continued thereafter and the prosecution was being represented by the Assistant Public Prosecutor and the accused by the Public Prosecutor. On 9-4-70, the learned Assistant Sessions Judge was required to deal with two petitions filed by the original complainant who is the petitioner here one asking for a direction that the accused should not be permitted to use the police dress while appearing in court and the other for debarring Shri S. S. Misra, the Public Prosecutor from defending the accused in the case. The learned Assistant Sessions Judge's order of 9-4-70 reads as follows:

The accused is present. A. P. P. Shri J. Khuas who has been specially ap pointed to conduct this case has filed a memo stating that he could subsequently know that he had appeared on behalf of the accused in the lower court meaning probably the committing court and that he may be permitted to retire from the case. Since he had appeared for the accused in the committing court it will not be proper to allow him to conduct the prosecution and he is allowed to retire. This fact should have been brought to the notice of the State Government much earlier.

On behalf of the complainant Kanhu Charan Prusti at whose initiation this case has been started has filed two petitions one for directing the accused not to use the police dress while appearing in court and another for debarring Sri S. S. Misra, P. P. from defending the accused in this case. Since P. P. has retired from the case there is none on behalf of the State Government to say anything on the petitions filed on behalf of the complainant and in the absence of P. P. no order can be passed on these petitions. Sri. S. S. Misra (P. P.) who is defending the accused in this case also wants to file counters to these two petitions. In any event the trial of this case cannot proceed as there is no P. P. to conduct this case...

On 16-4-70 the learned Assistant Sessions Judge heard counsel on the two applications referred to above and on 17-4-70. he passed the impugned order. It appears the petitioner wanted that the case mav be conducted by Shri L. M. Nanda. his own counsel, as the Public Prosecutor. who under the provisons of Section 270 Cr.PC was bound to appear for the prosecution, has appeared for the accused to support the defence. He further con tended that the lawyer who was appealing for the prosecution was a iunior counsel of Shri S. S. Misra. the Public Prosecutor, and as such in his hands the prosecution was not safe. The petitioner became apprehensive of getting iustice so far as the trial was concerned.

2. The learned Trial Judge has negatived these contentions and has dismissed both the applications by his order dated 17-4-70. This revision application is directed against that order.

3. Section 270 Cr.PC prescribes: 'In every trial before a court of Session the prosecution shall be conducted by a Public Prosecutor.'

It is not disputed, and rightly so, that this Section applies to a trial before the Assistant Sessions Judge. Therefore, it is not in dispute that in the trial of the present sessions case the Public Prosecutor was statutorily required to conduct the prosecution. There can be hardly any dispute that it is open to the State Government to render assistance in the defence of its officers when in the opinion of the State Government the defence of such persons should be undertaken as a matter of public policy by the State.

4. The question for examination in this case however, is as to whether in the face of the statutory requirement Under Section 270 Cr.PC the State Government could direct the engagement of the Public Prosecutor to appear for tha defence, forsaking the interest of the prosecution. It is too well known that in sessions cases which are initiated by private complainants the complainants lose position when the pases are committed and come up for trial before the court of Session. Under the statutory provision embodied in the Code of Criminal Procedure the complainant's status is gone and the State takes over the prosecution. The reason is obvious. Cases which are committed for trial to the court of Session are of a graver nature and normally are in respect of offences against society. On that principle the responsibility of a fair trial of such cases is statutorily placed on the State. Section 270 Cr.PC is a provision to implement that responsibility cast on the State.

5. In the circumstances, therefore, there is little room to dispute that while it was open to the State Government to extend support for the defence of the opposite party (accused), it was not certainly open to them to act in derogation of the provisions of Section 270 Cr.PC The learned Trial Judge certainly committed an error in referring to the circulars and Orders of this Court to find support for the engagement of the Public Prosecutor as the defence counsel. Section 270 Cr.PC would override any provision in any manual. It is the primary duty of the Public Prosecutor to support the prosecution.

6. Chapter XXXVIII in Part IX Cr.PC, deals with Public Prosecutors and Section 492 Cr.PC provides: -

(1) The State Government may appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutor.

(2) The District Magistrate, or. subject to the control of the District Magistrate, the Sub-divisional Magistrate, may. in the absence of the Public Prosecutor. or where no Public Prosecutor has been appointed, appoint any other person, not being an officer of police below such rank as the State Government may prescribe in this behalf, to be Public Prosecutor for the purpose of any case.

Shri S. S. Misra, the Public Prosecutor, has already appeared far the accused. There are certain allegations in the-revision application that the counsel who is now appearing in support of the prosecution is normally a Junior counsel of Shri S. S. Misra. The arrangement must be taken to be bona fide in the absence of any allegation of mala fide. But so far as the complainant-petitioner is concerned, there is certainly some scope for concern. In the circumstances. I think the prosecution should not be continued by the junior counsel of Shri S. S. Misra.

7. The Petitioner applied for permission to appear through Shri L. M Nanda. an advocate of Bolaneir. Shri L. M. Nanda is certainly not the Public Prosecutor and it is not open to the learned trial Judge or to me in revision to exercise the powers of appointment of a Public Prosecutor which Under Section 492 (1) Cr.PC is conferred on the State Government, or in the absence of an appointment under Sub-section (1) it is open to the District Magistrate or other Magistrates named in Sub-section (2) to make arrangements in that regard. I, therefore, during the hearing of this revision, called upon the learned Additional Standing counsel who appeared for the State to make any concrete suggestion to overcome the impasse that has been created on account of not keeping the legal provisions in view while extending assistance to the accused for his defence.

8. Nothing concrete has been suggested though the case was adjourned by a day for the purpose. In the peculiar circumstances of the case I cannot now call upon the Public Prosecutor to discharge his duties under the statute and appear for the prosecution. That would certainly not be permitted under the provisions of the Advocates Act and professional ethics of the Bar. At the same time I do not think it proper to permit the Public Prosecutor to continue supporting the defence in view of the special provisions contained in Section 270 Criminal Procedure Code. The choice of the State Government to find a counsel for the defence is certainly subject to the law of the land and the State Government is as much bound by the provisions in the Code of Criminal Procedure as litigants. I would therefore, direct that steps may be taken by the State Government immediately to engage some other counsel other than the Public Prosecutor to defend the accused in the Sessions Case.

9. Once that is done, I think there would be no further difficulty in allowing the prosecution to be represented by the counsel who is now handling the case for the prosecution. It may, however, be stated that it would be proper, in view of some allegations having been made, for the District Magistrate of Bolangir to take steps to engage another Advocate as the Public Prosecutor for this case. Now that the Public Prosecutor would not be available to appear in this case for the prosecution, a situation within the scope of Section 492 (2) Cr.PC can be taken to have arisen and the District Magistrate Would be free to make the arrangement. In making such arrangement, the complaint's choice of Shri L. M. Nanda, Advocate, may also be taken into account.

10. By an order of this Court further progress in the sessions case which was already heard in part had been staved. With the disposal of this revision that case has to proceed. I would, therefore, direct that arrangement as indicated above be made within a fortnight of receipt of a copy of this order. The learned Assistant Sessions Judge is directed to fix a date of trial at least a month after the records are received by him in order to enable the arrangements to be made in the meantime.

11. This revision is disposed of accordingly. The records be immediately transmitted. A copy of the order be simultaneously forwarded to the District Magistrate, Bolangir for his guidance.


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