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Roop K. Shorey, Film Producer Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revn. No. 134-D of 1964
Judge
Reported inAIR1967P& H42; 1967CriLJ251
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 493 and 495
AppellantRoop K. Shorey, Film Producer
RespondentThe State
Advocates: Balraj Trikha, Adv.,; D.R. Sethi, Adv. for; Standing Cou
DispositionPetition dismissed
Cases ReferredIn Medichetty Ramakistiah v. State of Andhra Pradesh
Excerpt:
.....whole object of sections 493 and 495 is that no private party should, when a case has been taken over by the state, be permitted to wreak his personal vengeance which may inevitably result in case the charge of the prosecution is handed over to a private party the salutary provisions are based on the well-accepted principle that the public prosecutors must work as ministers of justice assisting the state in the administration of justice and not as representatives of a party. the petitioner has, in my opinion, failed to show that the public prosecutor had effaced himself and completely surrendered his functions to the private counsel. 6. in the circumstances this petition must fail and is dismissed......an application was made to shri baldev raj, magistrate, first class, for grant of permission to shri anand to conduct the prosecution and shri baldev raj announced an order that he had granted permission but the complainant was not aware that there was no such order in writing. it was not necessary that permission under section 495 should have been granted in writing. the objections raised by the petitioner were belated and, therefore, could not be entertained. this reply has been signed by shri i. m. lal, advocate, and submitted in reply to the written arguments filed in the court on behalf of the petitioner. there is another reply which is, dated 15th march 1963 signed by shri s. n. anand, advocate, on which reliance has been placed by both the sides. this reply is not available on.....
Judgment:

S.K. Kapur, J.

1. This criminal revision is directed against the order of the learned Sessions Judge, Delhi, dated the 24th December 1963 and raises the question of construction of Sections 493 and 495, Criminal Procedure Code. The first information report was lodged against the petitioner Roop K. Shorey alleging that he had committed an offence under Section 420, Indian Penal Code. Charge was framed in pursuance of the said first information report and the examination of the prosecution witnesses started on 2nd March 1963, with the examination of Ram Parshad complainant. His cross-examination commenced on 5th March 1963, and continued on 6th March 1963. Mr. R. L. Anand, Advocate, appeared on these days on behalf of Ram Parshad complainant. It has been alleged by the petitioner that instead of the Public Prosecutor, Mr. Anand conducted the examination-in-chief of the first prosecution witness and put all type of leading questions to him. On an objection on behalf of the petitioner that Mr. Anand had no authority to appear on behalf of the complainant he filed his power of attorney on 6th March 1963.

It is further alleged that even when Ram Parshad was being cross-examined Mr. Anand took active part in conducting the prosecution and the Public Prosecutor appointed for the Court merely remained as a silent spectator. On 6th March 1963, an application was made on behalf of the petitioner and it is necessary to refer to some of the allegations made therein. It was, inter alia, alleged in the application that (a) there was a regular Public Prosecutor appointed for the Court who was incharge of prosecution but still it was Mr. Anand who was acting and pleading on behalf of the prosecution independently; (b) there was no power or authority from the Public Prosecutor in favour of Mr. Anand entitling him to conduct the prosecution; (c) Mr. Anand could not conduct the prosecution without the express permission of the Court granted to him; (d) the Public Prosecutor was not taking any active interest in the case and was merely a silent spectator; (e) constant interference by Mr. Anand was causing great prejudice to the defence; and (f) in view of the provisions of Section 493, Criminal Procedure Code, Mr. Anand was not competent to conduct the prosecution.

A reply was filed on behalf of the complainant on 16th March 1963, and it was inter alia stated therein that an application was made to Shri Baldev Raj, Magistrate, First Class, for grant of permission to Shri Anand to conduct the prosecution and Shri Baldev Raj announced an order that he had granted permission but the complainant was not aware that there was no such order in writing. It was not necessary that permission under Section 495 should have been granted in writing. The objections raised by the petitioner were belated and, therefore, could not be entertained. This reply has been signed by Shri I. M. Lal, Advocate, and submitted in reply to the written arguments filed in the Court on behalf of the petitioner. There is another reply which is, dated 15th March 1963 signed by Shri S. N. Anand, Advocate, on which reliance has been placed by both the sides. This reply is not available on the record and a copy thereof has been supplied by Shri S. N. Anand the learned counsel for the respondent. It is inter alia stated in the said reply that (a) Shri Ram Lal Anand had been handling the proceedings for the last over five years. On 15th February, 1958, the complainant, by an application sought the permission of the Court to have this case conducted by a counsel of his choice. He mentioned the name of Shri Anand and prayed for adjournment of the case as Shri Anand needed copies of the material under Section 173, Criminal Procedure Code, and the case was actually adjourned. Again on 17th February, 1958, the case was adjourned at the request of Shri Anand because he was busy in another case. The petitioner filed an application under Section 561-A, Criminal Procedure Code for quashing the proceedings pending in the trial Court and this application was also opposed by Shri Anand. In the circumstances the permission should be taken to have been granted to Mr. Anand to conduct the prosecution; (b) no order or permission could be shown to the Court because the record for the year 1958 was not available on the judicial file of the trial Court, but there was an irrebuttable presumption of law about the official acts having been regularly done; and (c) the Court Inspector was always present when the case was taken up but he did not take any active part in the proceedings because Shri Anand continued to be incharge of the prosecution case.

2. Mr. Balraj Trikha the learned counsel for the petitioner has very strongly relied on paragraphs 3 and 5 of the said reply which according to the learned counsel is an admission of the fact that Shri R. L. Anand was conducting the prosecution. The learned trial Magistrate, however, dismissed the application of the petitioner. According to him the pivotal point in the case was whether or not permission had been granted to Mr. Anand for conducting the case on behalf of the prosecution. That, as I shall discuss later, was in the circumstances, not the correct approach to the problem but the matter proceeded mainly on these lines both before the trial Court and the learned Sessions Judge. Aggrieved by the order of the trial Magistrate the petitioner filed revision before the Sessions Judge, Delhi, which was dismissed by his order dated 24th December, 1963. Before the learned Sessions Judge it was inter alia contended that permission had been granted by Shri Baldev Raj, Magistrate, who was initially trying the case. In view of this assertion on the part of the complainant the learned Sessions Judge by his order dated 3rd August, 1963, directed that statement of Shri Baldev Raj, Magistrate, be recorded. The said statement was accordingly recorded by Shri V. P. Dhir, Magistrate.

Shri Baldev Raj stated that he had not given any permission in writing or verbally to Shri Ram Lal Anand to appear for the prosecution. He also stated that he had given no permission to the complainant to engage Shri R. L. Anand as a counsel for the prosecution. I will, therefore, assume that no permission had been given to Mr. Anand as alleged in the reply. The learned Sessions Judge also considered the question of permission as crucial in the case. He said,

'the crucial point that requires determination in this case is whether any permission was accorded to Shri Ram Lal Anand for conducting the case on behalf of the prosecution by Shri Baldev Raj and if not, whether the conducting of case by Shri Ram Lal Anand on behalf of the prosecution in the absence of any permission having been granted by the Court under Section 495, Criminal Procedure Code, would be an illegality or irregularity curable under Section 537, Criminal Procedure Code.' From the various circumstances set out in the order of the learned Sessions Judge he carne to the conclusion that no prejudice had been caused to the accused and the proceedings could not be held to have been vitiated on the ground that the prosecution was conducted by Shri Anand. He accordingly dismissed the revision petition with an observation that it will be open to the learned Magistrate to exercise his discretion whether or not to allow Shri Ram Lal Anand, Advocate, to continue to conduct the prosecution, taking into consideration the provisions of Section 495, Criminal Procedure Code.

3. The learned counsel for the petitioner has raised the following contentions (a) having regard to the provisions of Section 495, Criminal Procedure Code, Mr. Anand could not appear for a private party, the complainant, without the express permission in writing by the Magistrate trying the case; (b) Mr. Anand filed his power of attorney on 6th March and all proceedings taken before that date stand vitiated because he had no written authority, on behalf of the complainant to appear in Court; (c) non-compliance with the provisions of Sections 493 and 495 constitutes an illegality which is not curable under Section 537, Criminal Procedure Code; and (d) even if non-compliance with the aforesaid provision be an irregularity a serious prejudice has been caused to the petitioner particularly because of the interference and the leading nature of questions by Mr. Anand and the trial is, therefore, vitiated. According to the learned counsel there would be non-compliance with Section 493, Criminal Procedure Code if a private counsel conducted the proceedings and the Public Prosecutor merely witnessed them as a silent spectator.

4. Mr. S. N. Anand the learned counsel for the respondent on the other hand submits that (a) complainant's counsel appearing in the case need not have a power of attorney; (b) Mr. Anand had been appearing on behalf of the complainant for a period of over five years and the petitioner could not be allowed to raise the objection at such a late stage; (c) non-compliance with Sections 493 and 495, Criminal Procedure Code, is a mere irregularity curable under Section 537; (d) so long as control over the proceedings remains with the Public Prosecutor, Section 493, Criminal Procedure Code, is fully complied with. Since the Public Prosecutor was admittedly present in Court attending to the proceedings there was no irregularity or illegality committed and (e) in view of the definition of the word 'Public Prosecutor' in Section 4 (t) of the Criminal Procedure Code, Mr. Anand was also a Public Prosecutor within the meaning of Section 493 and, therefore, he was entitled to conduct the prosecution.

I may straightway say that I do not agree with Mr. Anand that the objection has been raised at a late stage. The examination of the witnesses started on 2nd March, 1963, and it was only thereafter that the petitioner could raise the objection which he did by his application dated 6th March, 1963. Regarding the contention that Mr. R. L. Anand appeared without objection right up to the High Court in proceedings for quashing of the charge. I am of the opinion that that would not disentitle the petitioner to raise the objection after the examination of the witnesses commenced. It is only after the commencement of evidence that the petitioner could say that Mr. Anand had taken the conduct of the proceedings in his own hands and the Public Prosecutor had completely effaced himself and surrendered his functions. Regarding the arguments of Mr. Trikha that non-compliance constitutes an illegality I need not decide that question because in my view there has been no non-compliance with Sections 493 and 495 in this case.

5. I now proceed to consider the ambit and scope of the said two provisions. It is well settled that the language of a statute constitutes the depository or reservoir of the legislative intent, and in order to ascertain or discover that intent, the statute must be construed as a whole just as it is necessary to consider a sentence in its entirety in order to grasp its true meaning. Meanings of certain words used in a section may be construed by attending to such other provisions of the statute as may tend to throw light upon them. This is a principle based upon human experience with man's modes of expression and the inevitable limitations of language. It would, therefore, be legitimate to construe the meanings of the words in Section 493 in the light of the provisions of Section 495 and vice versa.

Applying these principles I am of the opinion that so long as the Public Prosecutor does not abdicate his functions and retains with himself control over the proceedings a private counsel can examine or cross-examine the witnesses or even address arguments. Comparison of Sections 493 and 495, Criminal Procedure Code, shows that it is only when a private counsel is entrusted with an independent charge of the case that permission is necessary under Section 495, Criminal P. C. So long as he acts under the supervision, guidance or control of the Public Prosecutor he can examine and cross-examine the witnesses. The dichotomy in Section 493, Criminal Procedure Code, is between 'conducting the prosecution' and 'acting under the directions of the Public Prosecutor'. 'Conducting the prosecution' therefore, must mean taking charge of the entire proceedings free from any guidance and control by anyone else. In my view the same meaning must be given to the words 'prosecution to be conducted' in Section 495, Criminal Procedure Code. It follows, therefore, that if a private counsel is to be given a complete charge of the prosecution case so that lie can conduct the case independently of the Public Prosecutor a permission is necessary. So long as a private counsel acts under the guidance and control of the Public Prosecutor he is entitled to so act under Section 493, Criminal Procedure Code.

In Medichetty Ramakistiah v. State of Andhra Pradesh, AIR 1959 Andh Pra 659, while dealing with Section 270, Criminal Procedure Code, it was held that the mere fact that a pleader, privately instructed, has acted for the prosecution in a Sessions case does not involve the violation of Section 270 if the conduct of the prosecution could be said to have been in the hands of the Public Prosecutor and that 'act' in Section 493 is not to be understood in the technical sense as meaning something distinct and different from the word 'plead'. It does not mean something other than examining or cross-examining witnesses or addressing the Courts. It was further held that--

'Where the circumstances indicated that the Public Prosecutor had entirely effaced himself and given up his charge of the case to the counsel appearing for the private complainant leaving the entire conduct of the case to him, there was an irregularity in the trial which prejudiced the accused.'

Again, In re, Bhupalli Malliah, AIR 1959 Andh Pra 477, Krishna Rao, J. held that--

'The word 'to conduct' means 'to lead, guide, manage' and Section 493 merely requires that the Public Prosecutor should guide the prosecution and direct the private party's advocate.'

In my opinion so long as the Public Prosecutor conducts the prosecution in the sense that he determines all important questions of policy involved in the course of the trial and the attitude to be adopted by the prosecution and keeps control and guidance with himself. Section 493, Criminal Procedure Code, is no violated. The whole object of Sections 493 and 495 is that no private party should, when a case has been taken over by the State, be permitted to wreak his personal vengeance which may inevitably result in case the charge of the prosecution is handed over to a private party The salutary provisions are based on the well-accepted principle that the Public Prosecutors must work as ministers of justice assisting the State in the administration of justice and not as representatives of a party. If Public Prosecutors are permitted to efface themselves and allow the prosecution to be conducted by private party it may be nothing short of legalized means authorising a private party to wreak his personal vengeance.

Public Prosecutors are expected to act in a scrupulously fair manner and present the case with detachment and without anxiety to secure a conviction. If this principle is allowed to be departed, it may result in a serious peril to the rule of law. The Legislature was, therefore, conscious of this salutary rule of jurisprudence and it was in this view, that it chose to enact Sections 493 and 495, Criminal Procedure Code, which in effect recognise the principle aforesaid. The Courts trying the case must not permit a Public Prosecutor to surrender his functions completely in favour of a private counsel. But as I have said earlier so long as he keeps the control with him a private counsel can act in the case. I am further of the opinion that the word 'act' in Section 493, Criminal Procedure Code, is not used in its technical sense in contra-distinction to 'appear and plead'. In the context this expression must mean and include the power to examine and cross-examine witnesses and address the Courts.

The examination of the witnesses started in this case on 2nd March, 1953. The Public Prosecutor was present in Court throughout the period when Mr. Anand was examining the witnesses. When the application was filed on 6th March, 1963, objecting to the appearance of Mr. Anand there was no occasion to come to the conclusion that the Public Prosecutor who had been present throughout, had effaced himself. May be an occasion had not arisen when the Public Prosecutor thought that his interference was called for. The petitioner has, in my opinion, failed to show that the Public Prosecutor had effaced himself and completely surrendered his functions to the private counsel. Since Mr. Anand was not conducting the prosecution within the meaning of Section 495, Criminal Procedure Code, no permission of the Magistrate was necessary. Regarding the absence of written authority in favour of Mr. Anand till 6-3-1963 the petitioner cannot make a grievance of the same. That is a matter between the client and the counsel so far as the complainant's counsel is concerned.

6. In the circumstances this petition must fail and is dismissed. The parties will appear before the trial Court on the 30th June, 1965. I do hope that the trial Court will bear in mind the principles of Sections 493 and 495, Criminal Procedure Code, as discussed hereinabove and see that the said provisions are scrupulously observed. Since the matter has been considerably delayed, the learned Magistrate will try to furnish the case as early as possible.


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