Rakesh Kainthla, J
1. The present petition has been filed against the order dated 06.07.2023, passed by the learned Additional Chief Judicial Magistrate, Nadaun, Hamirpur, District Hamirpur, H.P. vide which the application filed under Section 311 of Cr.P.C. by the petitioner (complainant before the learned Trial Court) was dismissed. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present application are that the police filed a Challan against the respondent-accused for the commission of offences punishable under Sections 451, 323, 341, 504, 506 and 325 read with Section 34 of IPC in an FIR registered by the petitioner-complainant. The petitioner-complainant filed an application under Section 311 of Cr.P.C. asserting that he had produced blood-stained clothes before the police but the police did not seize them, however, the police told him to produce them at the time of his examination. Radha Rani, daughter of the complainant, had recorded the incident on her mobile. The video recording was transferred to a pen drive and the same was also handed over to the police but it was not taken by the police; rather she was advised to produce it at the time of her examination. The police had not properly investigated the matter and the complainant reported this fact to the Superintendent of Police, Hamirpur but no action was taken. The production of the material objects was necessary. Hence, it was prayed that the application be allowed.
3. The application was opposed by the respondent-accused by filing a reply.
4. The learned Trial Court held that Radha Rani had not stated anything about the video recording of the incident. No letter was placed on record to show that the matter was brought into the notice of the Superintendent of Police. The existence of blood-stained clothes and a pen drive was brought to the notice of the Court for the first time by filing the application. Hence, the application was dismissed.
5. Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed asserting that the learned Trial Court had failed to properly appreciate the provisions of Section 91 of Cr.P.C., which empowers the Court to take on record the material, which was not earlier seized during the investigation. The material is relevant for the adjudication of the dispute. The petitioner-complainant had given sufficient reasons for not producing the material earlier. The learned Trial Court failed to appreciate that the complainant could not be penalized for the acts of the Investigating Officer. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
6. The State-respondent filed a reply by taking preliminary objections regarding lack of locus standi and maintainability. The contents of the petition were denied on merits. It was asserted that no material objects mentioned in the application were disclosed to the Investigating Officer during the investigation. The material was being placed on the record after a long time. The complainant has moved another application for re-investigation. The complainant had no locus standi to file the application. Therefore, it was prayed that the present petition be dismissed.
7. Respondent No. 2/accused also opposed the petition by filing a separate reply taking preliminary objection regarding lack of maintainability. The contents of the petition were denied on merits. It was asserted that the petitioner had filed the present petition just to harass the accused. The document/material object intended to be brought on record was within their knowledge of the complainant at the time of investigation and presentation of the challan before the Court. The application has been filed after the lapse of two years without any justification. The document and material objections are not necessary for the just decision of the case. Therefore, it was, prayed that the present petition be dismissed.
8. I have heard Mr Maan Singh, learned counsel for the petitioner/complainant and Mr Ajit Sharma, learned Deputy Advocate General for respondent No.1/State and Ms Aanchal Sharma, learned counsel for respondent No.2/accused.
9. Mr. Maan Singh, learned counsel for the petitioner/complainant submitted that the objects are essential for the just decision of the case. These were produced before the Investigating Officer, who had failed to seize them and the complainant should not be penalized for the fault of the Investigating Officer. He prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
10. Mr. Ajit Sharma, learned Deputy Advocate General submitted that the complainant has no locus standi to file the application in a prosecution being conducted by the State without seeking permission of the Court. The learned Trial Court had rightly dismissed the application; therefore, he prayed that the present petition be dismissed.
11. Ms. Anchal Sharma, learned counsel for respondent No.2/accused adopted the submissions advanced by the learned Deputy Advocate General.
12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
13. Section 301 of Cr.P.C. provides for the appearance by the Public Prosecutor or Assistant Public Prosecutor in charge to appear and plead the case without any written authority.
14. Section 301(2) of Cr.P.C. provides that if a private person instructs a Pleader to prosecute in any person or any Court, the Public Prosecutor or Assistant Public Prosecutor shall conduct the prosecution and the Pleader so instructed shall act under the direction of Public Prosecutor or Assistant Public Prosecutor.
15. Section 302 of Cr.P.C. provides that any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than the Police Officer below the rank of Inspector and any such person conducting the prosecution may do so personally or by a Pleader.
16. It is apparent from the combined reading of these two provisions that the Public Prosecutor or the Assistant Public Prosecutor are authorized to conduct a criminal case before the Criminal Court and any pleader instructed by any person can act under the directions of the Public Prosecutor. Therefore, it is apparent that the complainant could not have filed the application through counsel without permission of the Assistant Public Prosecutor, who was conducting the prosecution in the present case. Such an application was not maintainable and could not have been allowed by the learned Trial Court. It was laid down by the Hon’ble Supreme Court in Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467: 1999 SCC (Cri) 1277: 1999 SCC OnLine SC 824 that the pleader appointed by the complainant can act under the directions of the learned public prosecutor just like his junior. It was observed at page 471:
“11. The old Criminal Procedure Code (1898) contained an identical provision in Section 270 thereof. A Public Prosecutor means “any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor” [vide Section 2(u) of the Code].
12. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined to Magistrate Courts, this particular section is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from the employment of the words “any court” in Section 301. In view of the provision made in the succeeding section as for Magistrate Courts, the insistence contained in Section 301(2) must be understood as applicable to all other courts without any exception. The first sub-section empowers the Public Prosecutor to plead in the court without any written authority, provided he is in charge of the case. The second sub-section, which is sought to be invoked by the appellant, imposes the curb on a counsel engaged by any private party. It limits his role to act in the court during such prosecution “under the directions of the Public Prosecutor”. The only other liberty which he can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the court permits him to do so.
13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.
14. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter.” (emphasis supplied)
17. It was laid down by this Court in Sateesh Chander Kuthiala v. State of H.P.:2017 Cr.L.J.97: 2016 SCC OnLine HP 3787, that it is impermissible for a private person to file an application without seeking permission from the Court. It was observed: -
“20. Once the respondent had specifically sought permission that his counsel be permitted to assist the prosecution, he cannot turn around to contend that such permission included a right to conduct the trial. Therefore, the petitioner at this stage has every right to object against the filing of the application directly by the counsel engaged by the respondent, instead of the same having been filed by the Public Prosecutor.
21. Adverting to the facts, it would be noticed that the application filed by the complainant/respondent under Sections 294 and 311 Cr.P.C. was opposed by the petitioner by filing a reply wherein a number of preliminary objections had been raised including the maintainability of the application on the ground that the complainant was granted permission to assist the Public Prosecutor but he was overstepping his limits by moving the application directly through his counsel.
22. Strangely enough, the learned trial Magistrate somehow assumed that the application had been filed by the complainant/State which finding is contrary to the record. Before allowing the application, it was obligatory for the Magistrate to have first gone into the question of maintainability of the application and only thereafter could the same have been allowed, more particularly, when the petitioner had questioned the locus standi of the complainant/respondent. Having failed to take into consideration all these facts and law on the subject, the order passed by the learned Magistrate cannot be sustained.”
18. In the present case, no permission was sought by the complainant from the learned Trial Court to conduct the prosecution. Thus, the objection of the State that the complainant had no locus standi to file the application has to be upheld.
19. Reliance was placed upon the judgment of Punjab and Haryana High Court in Sanjay Goyal vs. State of Haryana CRM-M-8808 of 2013 decided on 28.10.2013, however, it was noticed in para-7 of the judgment that the application was forwarded by the Public Prosecutor and the State had supported the order passed by the learned Trial Court. In the present case, the application is not forwarded by the Public Prosecutor and the State is opposing the application by filing a reply before this Court. Therefore, this judgment cannot assist the petitioner in any manner.
20. Consequently, the petition cannot be allowed and the same is dismissed, so are the pending miscellaneous applications, if any.
