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A.R. Balasubramanian Vs. V. Palani and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1969CriLJ1297
AppellantA.R. Balasubramanian
RespondentV. Palani and anr.
Cases ReferredIn Aahwin v. State of Maharashtra
Excerpt:
- - after recording the sworn statement of the complain-ant, the inspector of crime branch pondicherry was directed to enquire into the complaint under section 202, cri......the state government in this behalf, shall be entitled to do so without such permission....(3) any person conducting the prosecution may do so personally or by a pleader....this gives very wide powers to the enquiring magistrate or a magistrate who tries a case to permit any person to conduct the prosecution other than the officers mentioned in the said provision who do not require such permission. there is no basis to read into the section that 'any person' would mean or include any person interested. no restriction is placed in this provision for exercising a discretion by a magistrate to permit any person whomsoever he might think fit and suitable, in the circumstances, to conduct prosecution. the complaint has been taken on file for the offences which are cognisable. in respect of.....
Judgment:
ORDER

Krishnaswami Reddy, J.

1. This revision petition has been directed against the order of the First Class Magistrate No. II, Pondicherry, overruling the preliminary objection raised by the petitioner in Cri. M. P, 1585 of 1965 before him and directing the respondents herein to conduct prosecution in C. C. 460 of 1967 under Section 495(1) Cri. P.C.

2. The facts are briefly these : One Mrs. Gamier filed a complaint against the revision petitioner and two others for offences of criminal misappropriation, criminal breach of trust and cheating and dishonestly inducing delivery of property and falsification of accounts before the First Class Magistrate, Pondioherry. After recording the sworn statement of the complain-ant, the Inspector of Crime Branch Pondicherry was directed to enquire into the complaint under Section 202, Cri. P.C. and submit a report to the First Class Magistrate. The Inspector of Crime Branch submitted his report on 13-10-1967. The case was taken on file and summonses were ordered to be issued to the revision petitioner and two others on 17-10-1967 for their appearance. In the meanwhile, the complainant died on 9-9-1967. On 18-10-1967, the respondents herein filed a petition before the First Class Magistrate stating that during the life time of the complainant, she executed a special power of attorney to the respondents and they were material witnesses in the case and interested in the prosecution and prayed fox permission to conduct the prosecution under Section 495(1) Cri. P.C. and to engage pleader under Section 495(8) Crl. P.C.

3. The learned First Class Magistrate permitted the respondents to conduct the prosecution under Section 495(1) Crl. P.C.

4. On 22-11.1967, the revision petitioner filed a petition objecting to the respondents conducting the prosecution on the main ground that they were cited as witnesses in the case. He also contended that the complaint deals with the personal properties of the complainant, that the respondents had no proof that they had any right or interest in the same and that the power of attorney executed in favour of the respondents extinguished in law by the death of the principal. The learned Magistrate overruled the objections raised by the revision petitioner and dismissed the application. Hence this revision.

5. The learned Counsel for the revision petitioner contended that the respondents are witnesses to the prosecution and that they should not have been permitted to conduct the prosecution as it would prejudice the case of the accused. He further contended that under Section 195(1), Criminal P.C. the words 'any person' in the context, must be taken as a person interested in the prosecution, namely a close relation or a person who has direct interest in the prosecution. I do not see any force in either of these contentions.

6. Section 495(1) and (8), Criminal P.C., reads thus:

(1) Any Magistrate inquiring into or trying any case may, permit the prosecution to be conducted by any person other than an officer of police below a rank to be prescribed by the State Government in this behalf but no per. son, other than the Advocate General, Standing Counsel, Government Solicitor, Public Prosecutor or other officer generally or specially empowered by the State Government in this behalf, shall be entitled to do so without such permission....

(3) Any person conducting the prosecution may do so personally or by a pleader....

This gives very wide powers to the Enquiring Magistrate or a Magistrate who tries a case to permit any person to conduct the prosecution other than the officers mentioned in the said provision who do not require such permission. There is no basis to read into the section that 'any person' would mean or include any person interested. No restriction is placed in this provision for exercising a discretion by a Magistrate to permit any person whomsoever he might think fit and suitable, in the circumstances, to conduct prosecution. The complaint has been taken on file for the offences which are cognisable. In respect of cognisable offences any person unless he is specially prohibited under any of the provisions of the Criminal Procedure Code, or by any other special law, can prefer a complaint before the Magistrate or give information to the police. In a cognizable offence, every citizen of the public is interested to bring the offenders to justice. There cannot be a bar for any member of the public to come forward asking for permission to conduct prosecution, when especially the complainant is not alive or even if alive, with the consent of such complainant. There is no provision of the Criminal Procedure Code, for the suggestion that the criminal prosecution abates on the death of the complainant.

7. In Aahwin v. State of Maharashtra : 1967CriLJ943 , the Supreme Court held that the power of permitting any person to conduct prosecution is undoubtedly possessed by the Magistrate because of Section 495, Criminal P.C. by which Courts are empowered to do so.

8. The fact that the respondents are material witnesses in the case is a circumstance for the Magistrate using his discretion to permit them to conduct prosecution. Any complainant, in any case, is a material witness and on that account, it cannot be said that the complainant cannot be allowed to conduct prosecution.

9. I do not, therefore, think that because the respondents happen to be witnesses in the case, the case of the revision petitioner would be prejudiced by permitting them to conduct the prosecution. But, however, if they are wit. nesses to the prosecution, they cannot be permitted to be present at the time of the examination of the other witnesses who are likely to corroborate their evidence. If they are examined earlier, before the other witnesses are examined, there cannot be any objection for their being present in the court and instruct the pleader even while the other witnessess are being examined. There is no substance in the revision petition.

10. The revision petition is dismissed.


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