Chet Ram Thakur, J.
1. In this revision petition the question which arises for decision is whether the Public Prosecutor can intervene at the stage of an enquiry under Section 202 of the Cr. P. Code, 1898, (hereinafter called the Code) in a case instituted on a complaint by a private person.
2. Shri Charan Dass Dogra, an Advocate of Kulu had lodged a complaint under Sections 302, 307, 148, 149, 109, 114 and 120-B of the I. P. Code against S/Sliri Lal Chand Pararthi and five others. The judicial Magistrate in whose court the complaint was lodged took cognizance of the case as contemplated under Section 190 of the Code and he commenced an enquiry as contemplated under Section 202 of the Code. During the course of the enquiry, before processes were issued to the accused, Shri T. R. Sharma who is said to be a Magistrate and was connected with the arrangement of the DUSHERA fair when this occurrence is alleged to have taken place, was examined on 28-10-1971. Later on the Advocate-General appeared and put in an application purporting to be one under Section 540 of the Code for recalling Shri T. R. Sharma for purposes of cross-examination but this application was opposed by the complainant on the grounds that the Advocate-General had no locus standi to file an application and also to take part in the proceedings. Further that he had no confidence in the Advocate General as the respondent No. 1 was the Revenue Minister and had been named as an accused along with others and as such the Advocate General was under the influence of respondent No. 1. The learned Magistrate disallowed the application moved by the Advocate-General for recalling Shri T. R. Sharma for purposes of cross-examination. It is against that order, dated 6th December, 1971 of the Judicial Magistrate that this revision petition has been moved.
3. The learned Advocate General in assailing the order of the learned Magistrate, contends that the same is not sustainable because it is the public prosecutor who is in charge of all the criminal prosecution as the offence is against the society at large and not against the particular individual and it is the function of the State to prosecute the offender and in order to substantiate his arguments, he has drawn our attention to various sections of the Code and has also placed reliance on Emperor v. Janke Gopal Koli AIR 1936 Bom 35 : 37 Cri LJ 333 and Bisheshar v. Rex AIR 1949 All 213 : 50 Cri LL 322.
4. First I will take up the authorities cited by the learned Advocate-General to bring home his point that it is an absolute right of the public prosecutor to initiate proceedings and even if a complaint is filed by a private person even then the public prosecutor shall take charge of the case and that the rights of the complainant are only subordinate to the rights of the Crown and that the complainant or his counsel has no right of audience unless permitted by the counsel appearing for the Crown. In Emperor v. Janke Gopal Koli (1936) 37 Cri LJ 333 (Bom) (supra) the case was under Section 324 I. P. Code of which cognizance was taken by the Magistrate on a police report. The person who was alleged to have been injured instructed an Advocate of the Court, Mr. Kondkar to appear for him. The prosecution was conducted partly by Mr. Kondkar and partly by the court Jamadar who is a police officer of the rank of first grade head-constable. Later on when the witnesses for the defence were to be cross-examined, the court Jamadar claimed the right to conduct the prosecution for the rest of the case instead of Mr. Kondkar. This claim was upheld by the Magistrate who declined to allow Mr. Kondkar to take any further part in the case. An application was moved by the injured person to the Sessions Judge who opined that the Magistrate had no right to stop Mr. Kondkar conducting the prosecution, and referred the case to the High Court recommending that the Magistrate should be directed to allow Mr. Kondkar to appear and conduct the prosecution from the stage at which he was stopped. It was held by the High Court after considering the resolution passed by the Home Department of the Bombay Government that the court Jamadar was an officer generally empowered to conduct prosecution, and was therefore, an officer to conduct the prosecution without the permission of the Magistrate. When there is an officer, who has that power, present in Court, it was not open to the Magistrate to give permission to some other person to conduct the prosecution either instead of on along with him without his consent. In the later case Bisheshar 1949-50 Cri LJ 322 (All) (Supra) the applicants who had been prosecuted, convicted and sentenced by the special Magistrate first class Basti, under Sections 335 and 323 read with Section 149 of the Indian Penal Code, filed an appeal before the Sessions Judge, who slightly altered the conviction and sentence. He convicted them under Section 147 I. P. Code also and also fined them Rs. 15/- each and adjusted the fine in such a way as not to enhance the total amount of fine imposed by the Magistrate. Against that conviction and sentence a revision was filed by the convicted persons which was rejected. However, the complainant who was injured by the respondents filed a revision petition before the High Court praying that the sentence imposed upon the accused was contrary to law and was inadequate having regard to the injury caused to him and the other persons of his party. When the revision petition was argued by the counsel for the complainant, the Government Advocate objected and urged that the complainant had no right to be heard. The pertinent observations made in this case are 'On principle we do not see why a complainant should be held to have no right to bring to the notice of this Court that the case was one in which a higher punishment should have been awarded. Even a stranger may invoke the revisional jurisdiction of this Court'. Further on it had been observed 'The rights of a complainant are only subordinate to the rights of the Crown and it is for this reason that when the Crown takes up a case and the Government Advocate or other counsel appears on its behalf a complainant or his counsel has no right of audience unless permitted by the counsel appearing for the Crown. But where the Crown is taking no interest in any particular matter the complainant can take action if not prevented by law from doing so'.
5. Therefore, from these two authorities it cannot be said that the Private complainant has no right of audience at all. In the first case the case was instituted on a police report and as such the counsel engaged by the complainant had the right of audience only if permitted by the public prosecutor or the court Jamadar, who was authorised by the Government to conduct proceedings in the court of a Magistrate. In the second case it was at the stage of revision when this question came up for consideration whether in revision petition filed on behalf of a private complainant for enhancement of punishment he has got a right of audience and these authorities in my opinion, therefore, have got no bearing on the facts of the present case.
6. It cannot be disputed that it is a public prosecutor who has got the right to conduct the proceeding in a criminal court as the offences are against the State but if the public prosecutor or the State do not take any action then it is open for the complainant to move the court by way of an application as contemplated under Section 190 of the Code. The procedure for taking cognizance upon a complaint is given in chapter XVI and after cognizance has been taken of a case on a complaint, by a Magistrate then the Magistrate may proceed in accordance with the provisions of Section 202 of the Code without issue of processes for compelling the attendance of the persons complained against. If he finds that there are no sufficient grounds for proceeding then he is required to dismiss the complaint under Section 203 of the Code.
7. The Advocate-General appeared at a stage when no processes had been issued and the Magistrate was only making an enquiry to satisfy himself whether there were sufficient grounds or not for proceeding further and to enable him to issue processes to the persons complained against. The learned Advocate-General, in fact, as is apparent from his application in revision, wanted Shri T. R. Sharma to be recalled for purposes of cross-examination which means that he wanted to appear on behalf of the accused persons and not that he wanted to take the prosecution in his own hands so as to find out whether there were sufficient grounds to enable the Magistrate to issue processes to the accused persons. If the case had been initiated on a police report undisputedly the Advocate General or the public prosecutor had the right to conduct the proceedings. The complaint was filed by a private person. The Advocate-General, in my opinion, as is apparent from the revision petition itself, had taken up a contrary stand inasmuch as he stated that he wanted to cross-examine the witness. He could not, therefore, take charge of the prosecution on the basis of the complaint, at the enquiry stage when no processes had been issued to the accused persons, The public prosecutor was justified in appearing after processes had been issued to the accused and then he could take charge of the case and if he would have acted in any manner not conducive to the interest of the prosecution, the private complainant had a right to file a revision petition.
8. The learned Advocate General has referred to the definition of public prosecutor as given in Section 4 (i) (t) of the Code and has also referred to sections 495, 494 and 314 to emphasise that it is the public prosecutor or any other person appointed on behalf of the Government under the provisions of Section 492 who shall conduct proceedings in a criminal court and that it is the public prosecutor who has got the right to withdraw the cases. There is no dispute with regard to the scope of the provisions of these sections but with what we are concerned at this stage is whether the public prosecutor can take charge of the case at the enquiry stage when the case is initiated on complaint of a private person and in this regard I have already stated that the complaint is at the stage of the enquiry as contemplated under Section 202 of the Code and the accused persons complained against have not been summoned to appear. The Magistrate is only conducting an enquiry to satisfy himself with regard to the validity of the grounds as mentioned in the complaint so as to enable him to issue processes or not to issue processes and proceed in accordance with the provisions of Section 203 of the Code. The learned Advocate General wanted Shri T. R. Sharma to be recalled for the purposes of cross-examination, which means that the cause of the Advocate General was different to the one of the complainant.
9. The Explanation to Section 33 of the Indian Evidence Act to which attention is invited reads as:
A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
The object of Section 33 of the Indian Evidence Act is to make the previous deposition of witnesses admissible in subsequent proceedings, when the witnesses cannot be produced (e. g. for death, incapability of giving evidence, etc.) or when their production would involve unreasonable delay or expense. This explanation has been inserted for the purpose of excluding the objection which arises when the depositions are taken in criminal cases, that they cannot be used on a subsequent proceeding for want of mutuality or reciprocity. At page 415 under the heading 'Explanation' in the book, 'Sarkar On Evidence In India, Twelfth Edition', it has been stated:
It is not a principle of universal application that if the police or the magistracy act on information given by a private individual without a formal complaint or application for process, the Crown and not the individual becomes the prosecutor. The answer to the question who is the prosecutor must depend upon the whole circumstances of the case. The mere setting the law in motion is not the criterion, the conduct of the complainant before and after making the charge must also be taken into consideration. Nor it is enough to say that the prosecution was instituted and conducted by the police, that is again a question of fact. Theoretically all prosecutions are conducted in the name and on behalf of the Crown but in practice this duty is often left in the hands of the person immediately aggrieved by the offence, who pro hac vice, represents the Crown. In India, under Section 495 of the Code a private person may be allowed to conduct a prosecution and 'any person conducting it may do so personally or by pleader'; and where it is permitted, this is obviously an element to be taken into consideration in judging who is the prosecutor and what are his means of information and motive.
This explanation also does not assist the learned Advocate General, rather it states that a private person may be allowed to conduct the prosecution and here in the circumstances of the case as already stated above, it is manifest that it is the complainant who has moved the court and, therefore, he has got the right to conduct the case at this stage.
10. The learned Counsel for the respondent in opposing the petition has also relied firstly on Ratanshah Kawasji v. Keki Behramsha AIR 1945 Bom 147 : 46 Cri LJ 434. The petitioner made a complaint to the police alleging that certain offences had taken place on a particular date. At a later date the opponents filed a cross complaint against the complainant and some others. After investigation the police filed the charge-sheet against the accused in the first complaint and the Magistrate took cognizance of the said offences. Thereafter it seems that the Dy. S. P. thought that further investigation was necessary and after such investigation had been made the said officer appears to have moved the District Magistrate who ordered the withdrawal of the case against the accused. The police prosecutor who was in charge of the prosecution stated in court that the District Magistrate had ordered the withdrawal of the case and he asked for the court's permission for such withdrawal. The Magistrate permitted the withdrawal and discharged the accused. Thereafter the petitioner filed a complaint in the court on the same facts and the Magistrate made an order stating that though the incident did take place between the parties, the police case had already been permitted to be withdrawn and as the fresh complaint was based on the same facts as alleged before, the court saw no grounds to proceed with the complaint and the complaint was accordingly dismissed under Section 203 of the Code. The applicant filed criminal revision applications against the orders made in both the cases and both the applications were dismissed by the Sessions Judge and the High Court held that tile words 'Any Public Prosecutor may withdraw from the prosecution' in Section 494 clearly imply that the prosecution referred to must be one which is already being conducted by the public prosecutor and it seems clear to us that unless the public prosecutor is already in charge of the prosecution, he cannot withdraw from it and that the pub-lie prosecutor was here not in charge of the second prosecution'. The second authority is Surjit Singh v. Raj Pal AIR 1986 Punj 478 : 1966 Cri LJ 1327. In this case the facts were that one Harnek Singh lodged a complaint in the police station on October 15, 1964 that while coming out from a picture house, along with Surjit Singh first respondent, his foot accidentally struck against Avtar Singh who was also coming out of the picture house along with Raj Pal the second respondent. Avtar Singh and the second respondent that is, Raj Pal picked up a quarrel with Harnek Singh but they were pacified and separated by the Manager of the cinema who intervened. When later, Harnek Singh and the first respondent were near the Civil Hospital Phul, the second respondent fired a shot at Harnek Singh. The police appears to have investigated this complaint and took the view that the second respondent had not participated in the occurrence and that he had been falsely implicated on account of enmity. But before the police actually filed a complaint before the Magistrate against Avtar Singh alone, the first respondent instituted a complaint before the Magistrate under Sections 307, 504 and 323 read with Section 34 of the Indian Penal Code against both Avtar Singh and the second respondent. The Magistrate after holding a preliminary enquiry, issued summons to both the accused. On January 8, 1965 the Prosecuting Deputy Superintendent of Police, Bhatinda filed an application in his capacity as Public Prosecutor, before the trial Magistrate under Section 494 of the Code for permission to withdraw from the prosecution of the case and for discharging the second respondent. This application was opposed by the first respondent on the ground that the Dy. S. P. did not exercise the powers of a Public Prosecutor and, therefore, he had no locus standi to file the application and secondly the application was not bona fide. However, the trial Magistrate overruled the objections and gave permission for the withdrawal of the case against the second respondent. The order was challenged by the first respondent before the Sessions Judge, in revision. One of the grounds taken before, the learned Sessions Judge was that, even assuming that the said officer was a Public Prosecutor, nevertheless, he could not file an application under Section 494 of the Code inasmuch as the Public Prosecutor was not in charge of the prosecution, which was being conducted by the complainant, a private party. The learned Sessions Judge held that the Dy. S. P. was the public prosecutor and consequently the Public Prosecutor could intervene in a criminal case instituted on a private complaint and such Public Prosecutor could be considered to be one who had taken charge of the case when he made an application to withdraw from the prosecution. On this ground the revision was dismissed and on a further revision by the first respondent before the High Court, it was accepted that the Dy. 8. P. had been vested with the powers of Public Prosecutor but the main objection taken before the High Court wilt regard to legality of the orders of the lower Courts was that as the case before the Magistrate had been started on a private complaint and the public prosecutor being nowhere in the picture, he had no locus standi to file an application under Section 494 of the Code. The High Court held that in case of a private complaint before the Magistrate, which is conducted by the complainant or by his duly authorised counsel, the public prosecutor does not come into picture in the conduct of such cases and therefore, he had no locus standi to file an application under Section 494 of the Code in respect of such cases. Further it was held that if it is accepted that any public prosecutor can file an application under Section 404 of the Code in a case which is being proceeded with by the complainant, on a private complaint, it will lead to all kinds of abuses and mischief. On an appeal by the State of Punjab the Supreme Court upheld the judgment and decision of the Punjab High Court State of Punjab v. Surjit Singh : 1967CriLJ1084 .
11. No doubt this is a case where an application for withdrawal for the case was filed by the public prosecutor when he was not in charge of the case but it a apparent from the observations of the Punjab High Court as approved by the Supreme Court that it is only when the Public Prosecutor is in charge of the case that he can withdraw from the prosecution of a case. The instant is not a case of withdrawal but it is a case where at the initial stage when no processes have been issued to the accused for their attendance to the court, the public prosecutor has appeared in the Court and he has made an application under Section 540 of the Code to recall the witness who had already been examined by the Magistrate for purposes of enquiry under Section 202 of the Code. A public prosecutor therefore, cannot exercise that right for the re-call of the witness when he has already been examined by the Court because it is the function of the Court at this stage to satisfy itself whether there exist sufficient grounds to proceed or to dismiss the complaint under the provisions of Section 208 of the Code.
12. Under these circumstances the petition fails and is hereby dismissed with no order as to costs.
R.S. Pathak, C.J.
13. I agree.