Criminal Writ Petition No.3438 of 2010

13th February, 2012

Petitioner Counsel: Mr. MAHESH JETHMALANI, Mr. PRANAV BHADEKA, Mr. PRASHANT PAWAR, Mr. VINOD BHAGAT & Mr. PUNIT JAIN, Mr. G.S. HEGDE & V.A. BHAGAT
Respondent Counsel: Mr. S.A. SHAIKH, Mr. AMIT DESAI, Mr. VISHWAJEET SAWANT, Mr. SUBHASH JADHAV, Mr. INDERPALSING NIRAMALE

Cases Cited:
Bhagwant Singh Vs. Commissioner of Police, AIR 1985 SC 1288 [Para 1,6]
Bhagwant Singh Vs. Commissioner of Police, AIR 1985 SC 1285 [Para 4]
J.K. International Vs. State Govt of NCT Delhi, & Ors., (2001) 3 SCC 462 [Para 5,6]
Vinay Poddar Vs. State of Maharashtra, & anr., 2009 ALL MR (Cri) 687 [Para 6,9]
Thakur Ram Vs. State of Bihar, AIR 1966 SC 911 [Para 8]
R. Balakrishna Pillai Vs. State of Kerala, 1995 Cri.L.J. 1244 [Para 12]
Ahmed Mahomed Ismail Vs. Emperor, AIR 1940 Sind 220 [Para 13]
Anthony D'Souza Vs. Mrs. Radhabai Brij Ratan Mohatta and Others., 1984(1) Bom.C.R. 157 [Para 14]

JUDGMENT

JUDGMENT :- The single question that arises for consideration in this writ petition is whether the first informant has a right of hearing at the time of consideration of the application for discharge under Section 239 of Code of Criminal Procedure (hereinafter "Cr.P.C." for short). The brief facts of the case required to be stated for consideration of the question are that the petitioners are accused in Case No.927/PW/2007 pending in the Court of Additional Chief Metropolitan Magistrate, 8th Court, Mumbai. The case had been registered, pursuant to the order passed under Section 156(3) Cr.P.C. by the Court on the complaint filed by respondent no.2. The petitioners had filed Criminal Writ Petition No.93 of 2007 seeking quashing of MECR No.16 of 2006 registered by the police. That writ petition was dismissed on 16th April 2007. The petitioners then approached the Hon'ble Supreme Court by filing S.L.P. (Cri.) No. 2414 of 2007, during the pendency of which, chargesheet came to be filed before the trial court. Therefore on 16th November 2009, the petitioners withdrew the S.L.P. and filed application for discharge under Section 239 Cr.P. C. In that application, respondent no.2 appeared before the trial Court with a request to be heard in the matter. The request made was an oral request. The petitioners objected to the request. After hearing rival arguments, the oral request of respondent no.2 was allowed by the trial Court by it's order dtd. 30th August 2010, impugned in the present petition. The reasons set out in the short order read as follows:

3. Especially I have gone through the ratio laid down in the authorities of the Hon'ble Apex Court in the case of Bhagwant Singh vs. Commissioner of Police, AIR 1985 SC page 1288 and the ratios down in other authorities mentioned supra.

4. The question that has been raised by Defence is as to whether, at this stage i.e. at the stage of discharge of accused, whether the original complainant could have a right to be heard. On this point, it was argued that the complainant can be heard at the initial stage, but he has no right to be heard at this stage.

5. I have carefully gone through the submissions made at the bar as well as ratios laid down in reported authorities as discussed supra. It is pertinent to note that golden principle of law is that nobody should be condemned unheard. May it be any stage and the original complainant is not an alien to this proceeding. So as per the ratios laid down in the authorities relied upon by Ld. Counsel for the original complainant, the original complainant has a right to be heard even at this stage. Hence, as there is no application filed on record by either of the parties and as everything went on orally, this order is passed below Exhibit No.1. The original complainant has got a right to be heard even at this stage. Hence, matter shall proceed further."

2. The petitioners challenge the impugned order contending that Section 239 Cr.P.C., under which the application for discharge is made, in express terms, gives right of hearing only to the prosecution and the accused. The section does not contemplate hearing to the first informant either in person or through advocate. Secondly under the scheme of Cr.P.C., it is the public prosecutor who has to conduct the case and the first informant can only assist the public prosecutor and can address the court through the public prosecutor. Therefore according to the petitioners, the trial Court could not have passed the impugned order. In reply, respondent no. 2 seeks to justify the impugned order contending that it is in keeping with the evolvement of law in giving equal importance to the first informant and victim of the crime. Besides, participation by way of advancing arguments on law and facts would not bring any element of unfairness but would actually assist the court.

3. Undoubtedly the first informant and to some extent, the injured i.e. victim of crime or relatives of the deceased, if the incident has resulted into death have now been vested with better rights. with increased participation at different stages of criminal proceedings. Before going into the question arising for consideration in the petition, it will be convenient to take note of the rights conferred upon them by the statute as well as by judicial pronouncements. It will also be necessary to refer to few provisions of Cr.P.C. to appreciate the submissions advanced.

4. Section 154(1) Cr.P.C. requires that every information relating to the commission of a cognizable offence if given orally to an officerincharge of a police station shall be reduced in writing by him or under his direction and be read over to the informant and every such information whether given in writing or reduced into writing shall be signed by the person giving it. Section 154(2) requires that a copy of such information shall be given forthwith, free of cost, to the first informant. Section 157(2) requires that if it appears to the officerincharge of the police station that there is no sufficient ground for entering on an investigation, he shall forthwith notify to the first informant the fact that he will not investigate into the complaint or cause it to be investigated. In case investigation is undertaken, Section 173(2)(ii) provides that on completion of investigation, the officer shall communicate, in such manner as may be prescribed by the State Government, the action taken by him to the first informant. It can be noted that all the above three provisions relate to the action to be taken by the police i.e. the officer-in-charge of the police station. The purpose and reasons of the three provisions have been stated by the Apex Court in it's decision in Bhagwant Singh Vs. Commissioner of Police, reported in A.I.R. 1985 Supreme Court, page 1285 relied upon by respondent no.2 and also referred to in the impugned order. The reasons stated are as under :

"3. ............ Obviously the reason is that the informant who sets the machinery of investigation into motion by filing the First Information Report must know what is the result of the investigation initiated on the basis of the First Information Report. The informant having taken the initiative in lodging the First Information Report with a view to initiating investigation by the police for the purpose of ascertaining whether any offence has been committed and, if so, by whom, is vitally interested in the result of the investigation and hence the law requires that the action taken by the officer in charge of a police station on the First Information Report should be communicated to him and the report forwarded by such officer to the Magistrate under sub-section 2(i) of Section 173 should also be supplied to him."

5. Next are the provisions of Section 301 and 302 Cr.P.C., which allow participation of the first informant into the conduct of the trial to the extent permitted therein. Section 301 permits a first informant to instruct a pleader to prosecute any person in any court but limits participation of such pleader to assistance to the Public Prosecutor or Assistant Public Prosecutor. The pleader may, with the permission of the Court, submit written arguments after the evidence in the case is closed in the case. Section 302 relates to the proceedings before a Magistrate. Any Magistrate enquiring into trying a case, may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector. No such permission is required for the prosecution to be conducted by Advocate General or Government Advocate or Public Prosecutor or Assistant Public Prosecutor. In other words, ordinarily the prosecutions are conducted by Public Prosecutor or Assistant Public Prosecutor. However, it is open for a private person to seek permission to conduct the prosecution by himself. If the Court thinks that the cause of justice would be served better by granting such permission, the Court would grant such permission. The scope of Sections 301 and 302 Criminal Procedure Code has been commented upon by the Apex Court in its decision in J.K. International V/s. State Govt of NCT of Delhi & Ors. reported in (2001) 3 SCC page 462. The same reads as under :

"12. The private person who is permitted to conduct prosecution in the Magistrate's Court can engage a counsel to do the needful in the Court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against any one in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. It is open to the Court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the Courts would generally grant such permission. Of course, this wider amplitude is limited to Magistrate's Courts, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them."

6. Coming to the judicial pronouncement, the decisions relied upon on behalf of respondent no.2, on recognising right of hearing to the first informant in different stages of criminal proceedings are as follows :

(i) Bhagwant Singh's case (supra).

(ii) J.K. International's case (supra)

(iii) Vinay Poddar V/s. State of Maharashtra & anr. reported in 2009 ALL M.R. (Cri.) page 687.

7. In Bhagwant Singh's case, the question considered by the Apex Court was whether in a case where the First Information Report is lodged and after completion of investigation initiated on the basis of the First Information Report, the police submits a report that no offence appears to have been committed, the Magistrate can accept the report and drop the proceedings without issuing notice to the first informant or to the injured or in case the incident has resulted in death, to the relatives of the deceased. The Apex Court held that if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceedings or takes a view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against those mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. It opined that if the interest of the first informant in prompt and effective action being taken on the First Information Report lodged by him is recognised by the provisions contained in Section 154(2), Section 156(2) and Section 173(2)(ii), it must be presumed that he would be equally interested in seeing that the Magistrate takes cognizance of the offence and issues process. Therefore, it held that in a case where the Magistrate to whom a report is forwarded under Section 173(2)(i) decides not to take cognizance of the offence and to drop the proceedings or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. The Apex Court, however, treated the injured or in case of the incident resulting into death, the relatives of the deceased differently. It held that they were not entitled to any notice from the Magistrate, however, if they chose to remain present before the Court and desired to make submissions, the Magistrate is bound to hear him.

8. The question in the case of J.K. International (supra) related to hearing of the first informant in the petition filed under Article 226 of the Constitution of India praying for quashing of the criminal proceedings pending before the Magistrate's Court pursuant to the chargesheet filed by the police. In the petition, the first informant was not made a party. He had therefore applied for impleading himself to the petition. That application came to be dismissed on the ground that in a case proceeding on a police report, a private party has no locusstandi. For deciding that application, the High Court had placed reliance on the decision of the Apex Court in the case of Thakur Ram V/s. State of Bihar reported in A.I.R. 1966 SC page 911. The Apex Court opined that reliance upon the decision in Thakur Ram's case by the High Court was not correct as the situations in the two cases were different. In Thakur Ram's case, the complainant had sought to challenge the order of the trial Court rejecting prosecution application for amending the charge and committing the case to the Court of Sessions. The Apex Court in that case, had disapproved a private person trying to interject in the case to rechannelise the course of the prosecution when the Public Prosecutor was in management of the prosecution case. The situation in J.K. International's case was found to be different, where the accused had approached the High Court for quashing of the criminal proceedings initiated by the appellant. The Apex Court held that in case of a petition for quashing of criminal proceedings, it would be a negation of justice to the complainant, if he is foreclosed from being heard.

9. The stage of hearing in the third case i.e. Vinay Poddar (supra) was completely different. The first informant had sought hearing in an application for anticipatory bail. While allowing the application, what had weighed with the Court was that when an application for anticipatory bail is considered, the police may not place all factual details before the Court as the investigation in most of such cases, is at a preliminary stage. Therefore, some role can be played by the complainant by pointing out the factual aspects. The other factor that had weighed with the Court was recognition of right of the first informant by the Apex Court to challenge the order granting bail.

10. Thus, it can be seen that the different stages of criminal proceedings in which participation of the first informant was allowed by judicial pronouncements, in the absence of specific provision in Criminal Procedure Code are (i) dropping of the proceedings by the Magistrate on receiving report under Section 173 Criminal Procedure Code from police, (ii) quashing of the criminal proceedings on the petition made by the accused and (iii) hearing of an application for anticipatory bail. The third stage is an entirely different stage, unconnected to the first two stages where one of the outcome of the application was the criminal complaint initiated by the first informant coming to an end.

11. The above is the background against which the question arising in the present petition is required to be considered.

12. Mr. Mahesh Jethmalani, the learned Senior Counsel appearing for the petitioners submits that Sections 238 and 239 of Code of Criminal Procedure are a complete code in themselves in the matter of procedure to be followed for the purpose of discharging the accused or for framing of charge in any warrant case instituted on a police report. He points out that Section 239 makes provision for every aspect of hearing of the application for discharge. It provides for the parties to be heard, documents to be considered, the test to be applied and the order to be passed. He refers to the principle of "Expressio unis est exclusio alterius" in the matter of statutory construction to submit that express mention of one or more persons of a particular class has to be regarded as by implication exclusion of all others of that class. According to Mr. Jethmalani, since Section 239 enumerates class of persons to be heard i.e. Prosecutor and the accused, by implication, it would exclude any other person from the hearing. Mr. Jethmalani relies upon decision of Kerala High Court in R. Balakrishna Pillai Vs. State of Kerala, reported in 1995 Criminal Law Journal, 1244 in the connection. In the proceeding before the Kerala High Court, a third party i.e. the Leader of Opposition in Kerala Legislative Assembly had filed an objection to the discharge application filed by the accused. The Kerala High Court held that Sections " 238 and 239 being a complete code in the matter of procedure to be followed for the purpose of discharging the accused, a third party cannot have any say in the matter". In my opinion, the facts of the present case are different from the facts before the Kerala High Court. The person making an application before the Kerala High Court for hearing was an altogether a third person, whereas the applicant herein is the first informant. He cannot be said to be a third person. As regards Section 239 of Cr.P.C. being a complete code by itself for the procedure to be followed for the purpose of discharging the accused, that by itself need not deter the court in considering the question in view of the expanded scope given to the first informant in the matter of hearing to him.

13. Mr. Jethmalani next emphasises the role of a public prosecutor. By referring to Sections 24 and 25 Cr.P.C., he submits that prosecutions in the Court of Magistrates and the Court of Sessions are conducted by the Assistant Public Prosecutor and Public Prosecutor/Additional Public Prosecutor respectively appointed by the State Government. An advocate privately engaged is not permitted to conduct prosecution. He submits that there is a sound reason for the criminal prosecutions to be conducted by public prosecutors appointed by the State Government. The State is the custodian of social interest of the community at large. Therefore though all the offences relate to public as well as the individual, in all the prosecutions, the State is the Prosecutor and the Public Prosecutor appointed by the State acts only in the interest of administration of justice. He is not a protagonist of any party. He stands for justice. Mr. Jethmalani draws support for his submission from following observations of Sind High Court in the case of Ahmed Mahomed Ismail vs. Emperor, reported in A.I.R. 1940 Sind 220.

"........ an advocate privately engaged " to represent the complainant should have no other place than that of one strictly subordinate to the officer who prosecutes on behalf of the Crown, for, as I have already said, the Crown stands not necessarily for a conviction but for justice. It also does not stand for the acquittal of one accused represented by a particular advocate at the cost of others and at the cost of justice"

14. Mr. Jethmalani submits that because the function of a Public Prosecutor relates to a public purpose, he is incharge of the prosecution all the time. For the very reason, the private counsel engaged by the first informant is given the limited role of assisting the Public Prosecutor under Section 301 and 302 Cr.P.C. Mr. Jethmalani relies upon decision of a Single Judge of this Court in Anthony D'Souza vs. Mrs. Radhabai Brij Ratan Mohatta and Others, reported in 1984(1) Bombay C.R. page 157, wherein Sections 301 and 302 of Cr.P.C. were interpreted. The decision holds that the first subsection of 301 gives absolute power to the Public Prosecutor or Assistant Public Prosecutor to appear and plead without written authority before any court in any inquiry trial or appeal Sub-Section (2) provides that if in such a case any private person instructs a pleader to prosecute any person, the pleader so instructed shall act under the directions of the Public Prosecutor or Assistant Public Prosecutor-in-charge of the case. This would mean that the Public Prosecutor or Assistant Public Prosecutor as the case may be, is the sole master of the prosecution and conduct of the prosecution is solely governed by his decision as to the policy to be adopted during the course of the trial and another pleader instructed has to act under the directions of the Public Prosecutor. No permission of the court is required for a private person to instruct a Pleader under Sub-section (2). Permission is required for submitting written arguments after the evidence is closed in the case. As regards Section 302(1), the court observed the power is undoubtedly vested " in the court to authorise conduct of prosecution by a private person. This power cannot be used by the court except on special grounds. It must not be the intention of the legislature that any other pleader or advocate be permitted to conduct the prosecution before a trying Magistrate". (emphasis supplied).

15. Mr. Amit Desai, the learned Senior Counsel appearing for respondent No. 2 seeks to distinguish Anthony D'Souza's case with the submission that it deals with a different stage of criminal proceedings and that the decision is of a period prior to Bhagwant's case. The submissions of Mr. Desai are self destructive. The fact that the decision is of a period prior to Bhagwant's case becomes irrelevant because the two cases deal with different situations. The stage in Bhagwant's case is a preliminary stage of consideration of Police report filed under Section 173(2) Cr.P.C. for which, there is no statutory provision for hearing to the first informant. The stage in Anthony D'Souza's case is of recording of evidence in the criminal trial for which there are specific provisions of Sections 301 and 302 Cr.P.C. Therefore merely because the first informant is recognised at the preliminary stage of hearing, the decision cited does not lose it's significance.

16. Mr. Desai submits that the impugned order should be sustained since it is in keeping with the evolvement of law in giving increased participation to the first informant in the matter of prosecution. Undoubtedly the first informant now enjoys a role higher than earlier as already seen in the preceding paragraphs. In fact perusal of the petition shows that the petitioners also not wish to deny participation of the first informant altogether. They only want his role to be limited as under Section 301 Cr.P.C. An application for discharge can result into putting an end to the prosecution either partly or fully. This stage is in that respect similar to the stage of consideration of the police report by the Magistrate under Section 173(2) Cr.P.C and the proceedings for quashing of the complaint filed by the accused person. The first informant, therefore, is likely to be interested in seeing that the matter reaches the stage of trial and is disposed off after recording of evidence. If by judicial pronouncements, he is now granted hearing at the earlier two stages, he can be granted hearing at the stage of discharge also, though the Criminal Procedure Code does not make provision for hearing to him at that stage. If the first informant appears before the Court and desires to participate in the application, opportunity cannot be refused to him. Now the next question would be about the nature of the hearing to be given to the first informant. Should the hearing be independent to the hearing to the Public Prosecutor or it be through the Public Prosecutor. In my opinion, his role will have to be limited as under Section 301 Cr.P.C. for the same reasons, as given in Anthony D'Souza's case and keeping in focus the role of the Public Prosecutor. He, cannot be allowed to take over the control of prosecution by allowing to address the court directly. In this connection, the decisions in Bhagwant Singh's case and J.K. International's case will have no bearing since the situations considered in the two proceedings were different. In one case, it was a very preliminary stage and in the other, it was invocation of inherent powers of the High Court. Therefore, the petition is partly allowed. The impugned order is modified to the extent that the Counsel engaged by respondent no. 2 shall act under the directions of the Assistant Public Prosecutor-in-charge of the case.

Ordered accordingly.