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Naranbhai Sadabhai Parmar and ors. Vs. Barot Nandlal Khodidas and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR522
AppellantNaranbhai Sadabhai Parmar and ors.
RespondentBarot Nandlal Khodidas and anr.
Cases Referred(V.C. Shukla v. State). In
Excerpt:
.....was resisted on behalf of the applicants as well as also on behalf of the state by the learned public prosecutor appearing before the learned sessions judge. barot, clearly signify that public prosecutor shall be incharge only of the trial, that is proceedings subsequent to framing of the charge. that section 238 of the code itself consists of two separate stages -one starting from section 238 and ending upto section 240 and the other starting from section 242 and ending up to section 248. we are, however, unable to agree with this argument because it appears that the enactment of section 251-a by virtue of the amendment of 1955 the words 'commencement of trial' were introduced for the first time which clearly denote that the trial starts in a warrant case right from the stage when..........was resisted on behalf of the applicants as well as also on behalf of the state by the learned public prosecutor appearing before the learned sessions judge. but the learned sessions judge by his order dated 16-8-82 granted the said application and the opponent no. 1 was permitted to advance arguments under the provisions of section 226 of criminal procedure code to satisfy the court whether there was sufficient material to frame the charge.4. being aggrieved by the said order, the petitioners who are accused in the said case have approached this court by way of this revision application.5. lengthy arguments were advanced before me just as they were advanced before the learned assistant judge and opponent no. 1 mr. barot tried to point out the distinction between the phraseology.....
Judgment:

D.C. Gheewala, J.

1. The present revision application is directed against the order of the learned Assistant Sessions Judge, Mehsana passed below Exh. 7 in Sessions Case No. 68 of 1982. The facts of the case can be briefly summarised as under:

2. The Opponent No. 1 filed a complaint against the applicants alleging that they had published a printed leaflet making false imputation against opponent No. 1. The said leaflet contains defamatory statements. The learned J.M.F.C. held an inquiry under the provisions of Section 202 of the Criminal Procedure Code and thereafter decided to issue process for offences punishable Under Sections 500, 193, 195 r/w. Section 109 of LP. Code against the applicant. As the offence punishable under Section 195 was exclusively triable by the Court of Sessions, the learned Magistrate committed the applicants to the Court of Sessions to stand their trial.

3. At the stage of framing the charge, Opponent No. 1, who is a practising Advocate submitted an application Exh. 7 and prayed that he be permitted to advance arguments before the learned Judge for satisfying the learned Judge as to whether there was sufficient material before the Court of Sessions to frame the charge against the applicants. The said application was resisted on behalf of the applicants as well as also on behalf of the State by the learned Public Prosecutor appearing before the learned Sessions Judge. But the learned Sessions Judge by his order dated 16-8-82 granted the said application and the opponent No. 1 was permitted to advance arguments under the provisions of Section 226 of Criminal Procedure Code to satisfy the court whether there was sufficient material to frame the charge.

4. Being aggrieved by the said order, the petitioners who are accused in the said case have approached this court by way of this revision application.

5. Lengthy arguments were advanced before me just as they were advanced before the learned Assistant Judge and opponent No. 1 Mr. Barot tried to point out the distinction between the phraseology employed in Section 225, 226 and 227 of the Criminal Procedure Code. Section 225 provides that every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. In Section 226, which provides for opening the case for the prosecution, the word used is 'the Prosecutor' and not 'Public Prosecutor'. In Section 227, which provides for discharge of the accused, the word used is 'prosecution' and not 'Public Prosecutor'. The words 'in every trial before a Court of Session' used in Section 225, according to Mr. Barot, clearly signify that Public Prosecutor shall be incharge only of the trial, that is proceedings subsequent to framing of the charge. But no such embargo can be read in that section against a private complainant advancing arguments and taking part in pre-trial proceedings. The learned Sessions Judge seems to have accepted this particular contention and he, therefore, came to the conclusion that before a charge is framed, the trial docs not commence and hence the private complainant or his Advocate can address the court for satisfying the court that there is material on record to frame the charge. Mr. Barot also urged that as the word 'Prosecutor' simpliciter and 'prosecution' are not defined in the Criminal Procedure Code, the dictionary meaning of these words shall have to be applied while construing the words 'prosecutor' and 'prosecution' as occurring in Sections 226 and 227 of Code. Sections 226 and 227 provide for opening case for prosecution and discharge respectively, read as under:

226. When the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.

227. If, upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

6. The Dictionary meaning of the word 'prosecution' is to the effect that it means to bring before a court or to carry on a legal prosecution and the term 'prosecution' means the act of prosecuting in any sense. The term 'prosecutor' means one who prosecutes or pursues or carries on a civil or criminal suit. The definition of the word 'Public Prosecutor' as occurring in Section 2(u) of Cr. P. Code, means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor. Section 24 of the Code deals with the subject of Public Prosecutor, Mr. Barot, therefore, urged that if the submissions for framing of the charge were only to be made by the Public Prosecutor, as provided for under Section 227, the legislature would have definitely used the word 'Public Prosecutor' in Section 227. If the material which is sought to be pressed for framing the charge is to be presented only by the Public Prosecutor then in Section 226, the legislature would have used the word 'Public Prosecutor' in connection with opening the case. When the Legislature has refrained from doing so. Mr. Barot urged that these sections cannot be so read as to restrict the meaning of the 'Prosecutor' and 'Prosecution' as only signifying 'Public Prosecutor.' However, for resolving this verbal quibbling what is necessary is to determine as to when a trial can be said to have commenced before the Sessions Judge, because there is no dispute and even Mr. Barot who rounded desperate note at the end of the argument as his alternative plea that Section 225 is ultra vires Article 21 of the Constitution conceded that if Section 225 were not to be held ultra vires, which so far it has not been held, then at every stage of the trial as per Section 225 only Public Prosecutor would be entitled to conduct the case. Mr. Barot, therefore, tried to urge that the trial before the Sessions Judge would commence only after the charge is framed and as such the Public Prosecutor cannot claim any exclusive privilege to participate even at a pre-trial stage.

7. In this connection Mr. Barot drew my attention to a case reported at Bechar v. State 4 GLR 57, wherein the learned single Judge of this Court observed as under:

The expression 'at the commencement of the trial' uesd in Section 251A of the Criminal Procedure Code does not cut down the scope of Section 436, which allows a Sessions Judge to direct further inquiry into the case of any person accused of an offence who has been discharged.

Ordinarily, a trial is supposed to commence after a charge is framed, and, therefore, the proceedings before framing the charge are to be taken as an inquiry.

8. In the said case, the accused who were charged for offences punishable under Sections 147, 447, 426 and 506 of the I.P. Code, were discharged by the learned Magistrate. In revision, the learned Sessions Judge set aside the said order of discharge and passed an order under Section 436 of Cr. P. Code directing further inquiry. It was contended before the High Court that the learned Sessions Judge was not competent to order an inquiry in a case in which the trial had already commenced. The learned single Judge rejected the said contention on the ground that the expression 'at the commencement of the trial' used in Section 251A of Cr. P. Code does not cut down the scope of Section 436 of Cr. P. Code, which allows the Sessions Judge to direct further inquiry into the case of any person accused of an offence who has been discharged. The word 'trial' was not defined under the Old Cr. P. Code of 1898 (nor it is defined under the present Code of 1973). The learned Single Judge, therefore, observed that it may have one meaning under Section 403 and another meaning under Section 251A Cr. P. Code. He, therefore, negatived the contentions and dismissed the Revision Application.

9. The learned single Judge of this High Court, therefore, differed from the view expressed by the Andhra Pradesh High Court in a case reported at : AIR1960AP391 , where on similar facts the Andhra Pradesh High Court had held that in such a case Sessions Judge himself acting under Section 435 (old code) finds in such cases that a trial should be conducted on charges in respect of which there was a discharge, the only course available to him would be to report the matter under Section 438. The learned single Judge of this court differed from the above observations and in terms held that the word 'trial' may have one meaning under Section 403 and another meaning under Section 251A of Cr. P. Code. Under the circumstances, it appears that the said case was decided by the learned Judge of this court on the facts of the said case.

10. Mr. Barot next referred to a case reported AIR 1927 Bombay P. 21, wherein it was held that committal Proceedings are only an inquiry.

Mr. Barot also drew my attention to a case reported at AIR 1927 Bombay P. 161, but the facts of the said case were so different that the case is not relevant for our purpose at all.

However, Mr. H.K. Thakore. learned. Advocate, drew my attention to a case reported at : 1980CriLJ690 (V.C. Shukla v. State). In the said case the appeal was directed against an order passed by the Special Judge appointed under the Special Courts Act, 1979 by which the learned Judge directed a charge to be framed against the appellant under Section 120-B of the I.P. Code (sic) Section 5(1 (d) and 5 (2) of the Prevention of Corruption Act. A preliminary objection was raised by the Solicitor General on the ground that the impugned order was only an interlocutory order within the meaning of Section 11(1) of the Act and hence no appeal would lie against that order. On behalf of the appellant, it was argued that the impugned order should be construed as a final order inasmuch as the order completely terminated the proceeding preceding the trial. The substance of the contention was that until the charge is actually framed, the trial does not start and all proceedings upto the framing of the charges are in the nature of an inquiry or a sort of a pretrial proceeding which finally culminates either in the order of discharge or in the framing of charge. The Supreme Court in the said case had an occasion to deal with the relevant provisions of the Code of Criminal Procedure of 1898 and 1973. and it observed as under:

Under the Code the Magistrate is not to record any evidence or hold any inquiry but only to find out as to whether a case put up before him is exclusively triable by a Sessions Court and once this is so, he is to send the case to the Court for trial. Thus, there being no inquiry as was the case in the Code of 1898, there is no room for acceptance of the argument of the counsel for the appellant that an inquiry precedes the trial in such a case. This contention, therefore, appears to be without substance. Realising this difficulty, the learned Counsel for the appellant, put forward an alternative argument, viz. that Section 238 of the Code itself consists of two separate stages - one starting from Section 238 and ending upto Section 240 and the other starting from Section 242 and ending up to Section 248. We are, however, unable to agree with this argument because it appears that the enactment of Section 251-A by virtue of the amendment of 1955 the words 'commencement of trial' were introduced for the first time which clearly denote that the trial starts in a warrant case right from the stage when the accused appears or is brought before the court. This appears to us to be the main intent and purpose of introducing the words 'commencement of trial' by the amendment. Act of 1955 which did not appear in the Code of 1898 or in the various amendments made before the Act of 1955, to the Code. Thus, if the trial begins at that stage, it cannot be said that the proceedings starting with Section 251-A onwards amount to an inquiry within the meaning of Section 2(j) of the Code. Furthermore, it would appear that the amendment of 1955 in fact simplified the entire procedure for trial of warrant cases by a Magistrate by not requiring the Magistrate to record any evidence before framing of the charge or discharging the accused. All that the Magistrate had to do was to satisfy himself that the documents referred to in Section 173 had been furnished to the accused and if that had not been done, to direct that the documents should be furnished, Thereafter, the Magistrate on consideration of the documents referred to in Section 173 only and without recording any evidence was to examine the accused if he considered necessary, and after hearing the parties proceed either to frame the charge or to discharge the accused. In other words, the simplified procedure introduced by the amendment of 1955 which is now retained by the Code in Section 238 to 240. amounts to a trial from beginning to end. The fact that no evidence is to be recorded before framing of the charge and the Magistrate has to proceed only on the documents referred to under Section 173 i.e. the statement recorded in the case diary, and other papers or materials collected by the police, clearly show that these proceedings are not an inquiry at all because the scheme of the Code generally appears to be that whenever an inquiry is held, evidence or affidavits have to be recorded by the court before passing an order. This, therefore, is an additional reason to hold that the proceedings starting from Section 251-A in the previous Code and Section 238 in the Code of 1973 do not amount to an inquiry at all but amount to the starting of a trial straightway.' Contrasted with the procedure which prevailed under the Code of 1898, prior to the amendment of 1955, there was express provision for recording of evidence before the charge and that procedure undoubtedly amounted to an inquiry which has now been dropped by the amendment of 1955 and retained by the Code. For these reasons, therefore, we are satisfied that the proceedings starting with Section 238 of the Code including any discharge or framing of charges under Section 239 or 240 amount to a trial. The question of a pre-trial, as suggested by the counsel for the appellant, does not arise on a plain interpretation of the language of Section 238 and 239 which were the same as Section 251-A under the Code of 1898 as amended by the Act of 1955.

11. The above observations which have been extracted from para 38 of the Supreme Court judgment, clearly go to show that as under the New Code the Magistrate has not to record any evidence and hold any inquiry, the proceedings including framing of the charge and discharge of the accused amounts to a trial. These observations of the Supreme Court would lay at rest all the contentions raised by Mr. Barot and hence the distinction which he seeks to make out between pre-trial proceedings and the trial itself with regard to Section 225 Cr. P. Code would be redundant. As soon as the case is committed to the Court of Sessions, as provided in Section 225 of the Code, the Public Prosecutor shall be incharge of the case. The only right which a private complainant or his advocate may have, would be to sit by the side and assist the Public Prosecutor and at best as provided in Section 301, Sub-clause (2), he may submit written arguments if the court permits at the close of the evidence. The objects and reasons incorporated in clauses 231 to 243 (Sections 225 to 237) would make it further clear. They occur at page 563 of Vol. 13 of AIR Manual and they read as under:

These clauses correspond to the provisions in Chapter XXIII and deal with the procedure in trials before a Court of Session. This procedure will be practically the same as that prescribed for the trial of warrant cases by a Magistrate with slight variations. At the first hearing the Public Prosecutor will open the case and the Judge, after going through the record and hearing the submissions of the accused, if any, will consider whether there are sufficient grounds for proceeding against the accused.

This would go to show that in any proceedings commencing after the committal by the Magistrate and its further progress from that stage before the Sessions Court, it is only Public Prosecutor who has to be incharge of the conduct of proceedings and the private complainant cannot have any right to participate and the only limited exception thereto is carved out in Section 301(2).

The reason seems to be that it is the State which is custodian of the public peace and the private complainant cannot be heard to object that had he been incharge he would have enacted a greater toll of private vendetta.

12. As a last ditch resistance, Mr. Barot used that if an accused person can have a right to have an Advocate of his choice, and if the complainant were to be prevented from having an advocate of his choice, then Section 225 would be violative of Articles. 14, 21 and 22(i) of the Constitution of India. According to Mr. Barot under Section 303 of the Code, the accused person has a right to be defended by a pleader of his choice and hence the complainant also should have a right to be represented by an advocate of his choice. If Section 225 of the Code abridges, curtails or abrogates that right then it would be violative of the above Articles of the Constitution and would be discriminatory against a private complainant. Mr. Barot, therefore, urged that in the event of the court not agreeing with his other submissions, the matter should be referred to a larger Bench for determining as to whether Section 225 is ultra vires the above Articles of the Constitution. Mr. Barot can very well bring a substantive petition for the said purpose and hence it is not necessary to refer the matter to a larger Bench in a collateral proceedings of the present nature.

13. The net result of the above discussion is that the petition is allowed and the order passed by the learned Assistant Sessions Judge is hereby set aside. The rule is made absolute to the above extent.


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