1. This case illustrates how the complaint himself is responsible for prosecuting his own complaint in a dilatory manner causing sufficient delay in the progress of the trial. It also smacks of abuse of process, in that, many adjournment applications have been given and Judicial charity has been abused for the appeared ends of justice.
2. One Anthony D'Souza is the original complainant, who filed a complaint bearing no. 15/S of 1982 in the Court of Metropolitan Magistrate, 14th Court, Girgaon, Bombay, charging the four accused for the commission of offence of wrongful restraint under section 341, criminal intimidation under section 506(2) and abuses under section 504 of the Indian Penal Code read with section 114. A similar complaint by another person is also field before the learned Magistrate bearing No. 14/S of 1982. These complaints were filed on or about 30th March, 1982.
3. The complainant alleges that the four accused are the owners of Madhurima sweet Meat a shop situate at 77, Napean Sea Road, Bombay. The complainant is a lawful tenant of a portion of the said shop consisting of 150 sq. area is in independent occupation. He claims to be a tenant of the accused and alleges that he is paying Rs. 400/- per month as rent to the accused. It is said that is conducting a business in the name and style of 'A. D'Souza Gents Tailoring' in the said premises at 77, Napean Sea Road, Bombay. He claims to be in exclusive possession of the said shop, which was let out to him by the accused No. 1 with the knowledge of accused No. 2.
4. Accused No. 1 is the wife, accused No. 2 is her husband and accused Nos. 3 and 4 are sons.
5. It is alleged in the complaint on 25th March, 1982 of 6.30 p.m. accused Nos. 3 and 4 at the instance and instigation of accused No. 2 along with their hirelings and goondas came to the shop all of a sudden and threatened the complainant and his workers to vacate the said shop immediately otherwise they will be dispossessed. The complaint warned that this was an illegal act and he was a lawful tenant of the said shop carrying on business for the last 11 years and asked them to desist from such illegal acts and giving threats. After closing the shop the complainant went away from that place.
6. On 26th March, 1982, as usual, at 10 a.m. at the opening time of the shop, the complainant says, that he found his workers standing outside the shop and it was not opened and he learned that accused Nos. 1 and 2 had changed the locks and thus prevented him and his workers from rightful entry. He attempted to contact the accused but without any success.
7. Charging the accused with the said offences on the basis of the above allegations, the complainant attempted to contact the police. However, the police did not take note of it. It is further alleged that his goods worth approximately Rs. 20,000/- are in the said shop and on account of the obstruction to the lawful entry, he is put to immense loss. Accused abetted each other in committing all these acts. So he requested issue of process against the accused and instituted a private complaint on 30th March, 1982. He also gave a list of witnesses.
8. It appears that he also informed the Gamdevi Police Station by a complaint which was recorded by the Police as F.I.R. in Crime No 332 of 1982. Information to the police seems to have been given on 1st April, 1982. The police have independently started investigation from a panchanama on 3rd April, 1982 and filed police Case No. 1555/P of 1982. Both these cases relate to the similar incident. It may be that the police complaint is restricted to only section 341 of the Indian Penal Code and only one accused is mentioned therein. All the facts given to the police are similar to the private complaint filed before the Magistrate.
9. On the basis of the private complaint, the learned magistrate issued the process and summonses were issued to the accused and they appeared. The police completed the investigation on the basis of the information given by the complainant and filed a charge sheet in the Court. When the police were investigating the case an application was made on behalf of the accused under section 210 of the Criminal Procedure Code, informing the Magistrate that the investigation is in progress in regard to the same incident which is under investigation in the complaint against the accused. This application was given on 21st June, 1982. The purpose of this application was to stay the proceeding before the Magistrate under the provisions of section 210 the Criminal Procedure Code as the facts relating to the same complaint and the police case were similar. This application was opposed by the complainant stating that the application is wholly untenable. After this application was made by the accused, in continuation of the same, further application was made on 16th July, 1982 by the accused requesting the Magistrate that the charge-sheet has already been filed and the case arising out of the said charge-sheet and the case arising out of the private complaint will have to be tried together as provided by provisions of section 210 of the Criminal Procedure Code.
10. These applications dated 21st June, 1982 and 16th July, 1982, after hearing the say of the complainant, were heard by the learned Magistrate and on 31st August, 1982 he passed the following order :
"The present complaint being C.C. No. 15/S/82 and the case arising out of the police report of C.R. No. 332 of 1982 being Cri. Case No. 1555/P/82 are hereby ordered to be tried together as if both the cases have been instituted on a police report."
11. From the tenor of the order it appears that the case must have been argued at length and all the points involved in the submissions for granting or rejecting the application had been gone into by the Court.
12. The complainant, being dissatisfied with the order dated 31st August, 1982 referred to above, filed two revision applications Nos. 520 of 1982 and 521 of 1982. It may be stated here that the complainant has instituted a complaint which is numbered as 15/S of 1982 and another complaint on similar facts was instituted which is numbered as 14/S of 1982. It is in these two complaints which were to be tried jointly along with the police case, that the learned Magistrate passed the aforesaid order dated 31st August, 1982. Two Revision applications challenging the said order dated 31st August, 1982, were based on identical grounds. These revision applications were summarily rejected by the High Court on 4-11-1982 and the matter went back to the Magistrate's Court and were posted for hearing on 7th January, 1983.
13. The complainant had a design to conduct the prosecution himself or in the alternative with the help of an Advocate of his own choice. He was desirous of engaging an Advocate. With this object in mind, from 14th January, 1983, the complainant attempted to postpone the hearing of this case by making applications for adjournment. The first application was made on 20th January, 1983, praying that the complainant's Advocate himself is seeking appointment from the State Government as a Special Public Prosecutor to conduct the prosecution of the present case. This application was opposed by the accused. However, subject to payment of cost of Rs. 100/- to be paid to the other side (accused), the case was adjourned to 14th February, 1983. Again an application with the same prayer awaiting appointment as Special Public Prosecutor was made before the Court and two weeks time was granted by the Court. The third application was made on 28th February, 1983 repeating the same prayer and the case was fixed for 10th March, 1983. By all these applications, the learned Magistrate was asked to await appointment of the Complainant's Advocate as Special Public Prosecutor to conduct the case.
14. On 10th March, 1983, an application without mentioning section and without making proper prayer was presented to the magistrate on behalf of the complainant. This application, is on record. By this application the complainant requested that his case may be allowed to be prosecuted with the help of an Advocate of his choice. In the first paragraph of the said application the complainant states :
"The above Case No. 15/S of 1982 on a private complaint filed by me has been ordered to be tried together with Case No. 1555/P of 1982 arising out of the police report as per order dated 31-8-1982 of this Hon'ble Court."
Then the complainant quoted certain observation in the earlier order dated 31-8-1982 made by the Magistrate. This application further states that in this case the accused have been charged under section 341 which is a cognizable offence and it is common to both the cases, to police case as well as private complaint and other offences are non-cognizable. Then the application further states that the accused have been charged under section 114 of the Indian Penal Code by the complainant, but no such charge is made in the police case. It is also stated that the complaint filed by the complainant involves four accused persons whereas police case involves only one accused. It is also stated that there are six witnesses mentioned in the private complaint, but none of them has been mentioned in the police case and statements of none of them had been recorded by the police case and hence they cannot be examined in police case. It is also stated by the complainant in his application that in view of the above conflicting interests, it may be that his application to the State Government for appointment of Shri Gandhi, Advocate, Supreme Court as Special Public Prosecutor in Case No. 1555/P of 1982 has not yet been considered, especially in view of certain uncalled for representations made by the accused opposing the said appointment. In view of the above facts and circumstances, the complainant prayed that it is absolutely necessary and in the interest of justice and fair of the cases, that the said Advocate already engaged by him in Case No. 15/S of 1982 be permitted to conduct the prosecution in the said case while the Police Prosecutor conducts the prosecution in Case No. 1555/P of 1982.
15. The application does not show that it is given by an Advocate and, therefore, I have not taken serious view of the contents. However, from the contents it appears that it must have been drafted by the Advocate. I have quoted this because such argument was advanced before me on the basis of the application.
16. The said application was heard by the learned Magistrate and the Magistrate by the order dated 8-7-1983 observed as follows :
"I do not think that it will be desirable to grant permission to the complainant to appoint the Advocate of his own choice for conducting the Case No. 15/S/82 and hence, I hereby reject the application of the complainant for appointment of Advocate of his choice for conducting Case No. 15/S/82. The application is rejected."
17. It is against this order that the present revision application has been filed by the petitioner in this case. I must mention that ignoring the rules to this Court in regard to preparation of Paper Books, the paper book in this case is hopelessly inadequate and does not contain all the papers, although the learned Advocate for the petitioner chose to argue the case at length referring to several things. It may be observed that this fault could have been tolerated if the arguments of the learned Advocate are confined to strictly relevant submissions to be advanced. But when the petitioner desires the Court to go into several contentions, it is necessary that such submissions are made with relevant material on record. Apart from waste of time, it involves difficulty in appreciating the true controversy, causing prejudice not to the Advocate but to the parties concerned and objection always remains that some material was not supplied. However, the learned Counsel for the respondents cured this defect by presenting a paper book in Court from which I have gathered the true facts.
18. Although the learned Counsel for the petitioner referred to six contentions repeating the grounds mentioned in his petition and similar to one raised in the memo of revision at (e) to (h). I must say that the main contention of the learned Counsel for the petitioner is that the complainant has got a right to appear and conduct the prosecution in a case which is merged under section 210 of the Criminal Procedure Code. Private complaint was already pending in this case and on similar facts contained in complaint, police report was also received as a result of which the accused made an application as provided by section 210. The principal contention of the learned Counsel for the petitioner is that the complainant's right to conduct his own complaint, although merges in the police case, is unaffected and his right to conduct the case with the help of the Advocate of his own choice is absolute and cannot be impaired.
19. It was contended by the learned Counsel for the petitioner that trial before the Magistrate is governed as well as appearance of lawyers is concerned under sections 301 and 302 of the Code and trial before the Sessions Judge is governed by provisions of section 225. It was the contention of the learned Counsel for the petitioner that section 225 gives special power while under sections 301 and 302 a right is given to the Court to grant permission to conduct the prosecution even in State prosecution.
20. It was contended by the learned Counsel for the petitioner that permission to conduct the prosecution as provided under section 301(2) of the Criminal Procedure Code is so comprehensive that the pleader concerned who is permitted under that section, is entitled to act and also to plead. I have not referred to the elaboration of the learned Counsel, but I have summarised because I thought that the elaboration was without any substance whatsoever.
21. Before I proceed to deal with these contentions of the learned Counsel for the petitioner, I will refer to a preliminary point which was raised by Mr. Vakil, the learned Counsel for the respondents in this case. Mr. Vakil contended that the revision application is barred under section 397(2) of the Criminal Procedure Code as the impugned order is of interlocutory character. I will first take up this contention and I would have restricted my decision only on this point, but since I spent more than one day for such a simple matter, I chose to decide other points also argued by the learned Counsel for the petitioner.
22. Taking the preliminary point first, I asked the learned Counsel for the petitioner to argue about the maintainability of the revision. The learned Counsel stated that the order not allowing the Advocate or the pleader to conduct the prosecution is a final order and he further stated that the judgment of the Supreme Court , has no application to the present case. Except this bare statement, there is no further reference by way of explanation as to how and in what way the judgment of the Supreme Court can be ignored in such a casual manner while deciding this point which relates to the controversy decided by the Supreme Court. It is obvious that the order which is passed by the learned Magistrate cannot be said to be the order in controversy in the context of the case at on. Mr. Vakil rightly submitted that the principal laid down by the Supreme Court in Madhu Limaye v. State of Maharashtra, lays down that the impugned order must put an end to the controversy or that it may have character of final order and not as an interlocutory order passed during the progress of the trial. The learned Counsel for the petitioner only stated that as far as appearance is concerned, it finally decides the point, so it is a final order. This contention is without any substance. The order passed by the learned Magistrate purporting to act under section 301, does not decide the vital point in controversy as such. It only relates to the conduct of the case, at the hands of the Pleader or Public Prosecutor. In my opinion, granting permission or rejecting the same to conduct the prosecution when the case is instituted on police report, is adjudication which is of interlocutory nature and it does end the case or proceeding or terminate the controversy in the case. In view of the ratio laid down by the Supreme Court, it does appear that the present order which is passed by the learned Magistrate can be said to be final order as decided by the Supreme Court in the above case. The order does not have co-relation with the controversy in the complaint which is to be decided by the Court. The order, therefore, cannot be said to be final order at all. The preliminary objection is , therefore, well-founded and revision application is liable to be dismissed on that ground.
23. Coming to the contention relating to the application of sections 301 and 302 of the Criminal Procedure Code I may turn to Chapter 24 of the Code which is headed as "General provisions as to inquiries and trials". Section 301 and section 302 read as follows :
"301 (1) : The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which the case is under inquiry, trial or appeal."
"301 (2) : If in any such case any private person instructs a pleader to persecute any person in any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case."
"302 (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a Police Officer below the rank of Inspector : but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission ;
Provided that no Police Officer shall be permitted to conduct the prosecution if he has taken part in the investigation in the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader."
Coming to section 301 of the Criminal Procedure Code, it is clear that it deals with the Public Prosecutor. There are two parts of sub-section (1) of section 301. The first sub-section gives absolute power to the Public Prosecutor or Assistant Public Prosecutor in charge of the case to appear and plead without any written authority before any Court in any inquiry, trial or appeal. Sub-sections (2) provides that if in such case, means in a case which is under inquiry, trial or appeal in any Court, any private person instructs a pleader to prosecute any person, the Public Prosecutor or the Assistant Public Prosecutor in charge of the case shall conduct the prosecution and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor. Pausing for a while here, the above provisions clearly do not indicate that any permission as such is required from the Court for any private person to instruct a pleader to prosecute any person in any Court along with the Public Prosecutor. It clearly shows that the Public Prosecutor or the Assistant Public Prosecutor is in charge of the case and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor. The words " under the directions of the Public Prosecutor or Assistant Public Prosecutor" are significant. They expressly indicate that the private pleader so instructed to act in a case pending before any Court is permitted to act "under the directions of the Public Prosecutor" i.e. to say if the Public Prosecutor is otherwise willing to accept such instructions from private pleader, he can authorise such pleader to act in the case. The question of granting permission by the Court does not arise at all, in view of the clear provisions of the section. But the learned Counsel for the petitioner contended that this section authorises the Court to give permission to conduct the prosecution. I am afraid, that this contention is without any substance. In my opinion, the words used in this section "under the directions of the Public Prosecutor" will have to be construed in the ordinary meaning i.e. to say" under the guidance and control of the Public Prosecutor or Assistant Public Prosecutor as the case may be."
24. Having provided that the pleader so instructed shall, act "under the directions of the Public Prosecutor or Assistant Public Prosecutor", section 301(2) further provides that with permission of the Court such pleader may submit written arguments after evidence is closed in the case. The word 'permission' used in section is restricted only to grant permission in regard to written arguments. This stage is also provided after the evidence is closed in the case. Seeking of permission to conduct prosecution under sub-section (2) of section 301 and asking the Court to give permission likewise, seems to have been based under misappreciation of law in this case. The learned Counsel for the petitioner never suggested that he wanted to submit written arguments. He strongly contended, although this section is very clear, that sub-section (2) of section 301 authorises the Court to grant permission to conduct the prosecution. The is argument does not have any force. On the plain reading of this section, it is difficult to accept any such contention. Section 301 is an enabling section. Private complaint filed earlier is being tried along with the subsequent prosecution filed in respect of the same offence against the same accused before the Magistrate. In such a case, the application of section 301(2) cannot be attracted at all. The argument of the learned Counsel for the petitioner odes not have any force and will have to be rejected.
25. Then the learned Counsel for the petitioner contended that section 302(1) provides for permission to conduct the prosecution. It was sought to be argued that the present petitioner. i.e. the complainant can engage Advocate of his choice and the Court is under obligation to grant such permission in view of the provisions of section 302(1) of the Criminal Procedure Code. Section 302(1) provides for grant of permission to any person other than Police Officer below the rank of Inspector. This is an exceptional section. This power is undoubtedly vested in the Court to authorise conduct of prosecution by private person. This power cannot be used by the Court expect 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 trying Magistrate. This section 302(1) corresponds to old section 495 sub-sections (1) and (4) of the old Criminal Procedure Code and sub-section (2) of section 302 corresponds to old section 495(3). It appears that the provisions of the old section have been redrafted. Until the repeal of the old Code, subordinate Police Officers were conducting the prosecution. Under the present Criminal Procedure Code, no Police Officer below the rank of Inspector and no person other than Advocate-General or Government Advocate or a Public Prosecutor or Assistant Government Pleader shall be entitled to do so without such permission of the Court. Power to grant permission is preserved only for meeting exigency such as, non-availability of the Advocate or any other good reason. In a case where Public Prosecutors or Assistant Public Prosecutors are available on record and they act and appear, recourse to section 302 seems to be justified.
26. The learned Counsel for the petitioner in this connection invited my attention to a judgment of the Supreme Court in the case of Ashwin v. State of Maharashtra, . In paragraph 7 of the judgment the Supreme Court has observed :
".....This power was undoubtedly possessed by the Presidency Magistrate because of section 495 of the Code by which the Court are empowered (with some exceptions) to authorise the conduct of prosecution by any person."
In the said case, the complainant had died and her mother was substituted in her place and in that connection, substitution was allowed by the Supreme Court although bar of section 198 was raised. The absence of the complainant in the said case was caused by her death and in that context the Supreme Court has observed that the Presidency Magistrate in that case was right in allowing other person i.e. mother of the complainant to conduct the prosecution by permitting the mother to carry on the prosecution under section 495 of the said Code (corresponding to section 302(1) of the present Criminal Procedure Code). The observation of the Supreme Court in the said judgment do not assist the petitioner to obtain permission to conduct prosecution.
27. The learned Counsel for the petitioner invited my attention to the following authorities:
(1) Roop K. Shorey v. State, :
(2) Anurupa Debi v. Ramlal Rajghoria, 55 Calcutta Weekly Notes 160 :
(3) (In re Narayan M. Pendse), 11 Bombay High Court Case Reports 102.
(4) Badrinarayan v. State, 52 Cri.L.J. 509.
(5) Kabul v. Emperor, 35 Cri.L.J. 320.
I am mentioning these authorities to show that they contain general proposition and do not directly deal with the question in issue, Suffice it to say that they only lay down that the Public Prosecutor can always avail of the assistance and instructions of any other pleader appointed by private complaint. However, he cannot deprive himself of the management of the case. The effect of these authorities again is that the Public Prosecutor or Assistant Public Prosecutor as the case may be , is 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 instructing him has to act under the directions of the Public Prosecutor. In view of this principle no assistance can be derived from these authorities also.
28. The learned Counsel for the petitioner Shri Gandhi then contended that even if the order is passed by the learned Magistrate under section 210 for joint trial of cases, proceedings having been initiated by him earlier on a private complainant's right continue the proceeding is not taken away. It is this contention which I have to examine in this case. It will be useful to refer to section 210 of the Criminal Procedure Code, which reads as follows :---
"210. (1) when in a case instituted otherwise them on a police report (hereinafter referred to as a complaint case, it is made to appear to the Magistrate, during the course of inquiry or trial held by him, that investigation by the police is in progress in relating to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceeding of such inquiry or trial and call for a report on the matter from the Police Officer conducting the investigation.
(2) If a report is made by the investigation Police officer under section 173 and on such report cognizance of any Offences is taken by the Magistrate against any person who is accused in the complaint case, the Magistrate shall inquiry into or try together the complaint case and the case arising out of the Police report as a both the cases were instituted on a Police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
The effect of this section is that the private complaint and the subsequent proceedings initiated by the Police are to be tried together by the Magistrate in view of provisions of section 210, as if both the cases are instituted on police report. This section intended to stop overlapping of the cases i.e., the complaint case and the police case. Under the old Code, sometimes difficulty arose in regard to the situation created by initiation of the proceedings by the private complaint and the subsequent investigation by the police in the matter of common incident and common accused. There was uncertainty in regard to the provisions to be followed and controversy had arisen In order to remove this uncertainty, the legislature has introduced this section. Except as stated in sub-section (3) proceedings on private complaint and on police report are to be relied together. The section also provides for merger of the two cases i.e. complaint case and the police case.
29. Against this background the word used in section 301 are useful. The words in section 301 are "Public Prosecutor or Assistant Public Prosecutor". These words emphasize that the Public Prosecutor or Assistant Public Prosecutor can appear in any trial before any Court. Terms "Public Prosecutor or Assistant Public Prosecutor" are defined in the Code. I may refer to section 2 of the Criminal Procedure Code. In Clause (u), Public Prosecutor means any person appointed under section 24 and includes any person acting under the directions of the Public Prosecutor. Assistant Public Prosecutors are appointed under section 25 of the Criminal Procedure Code. That section so far as it is relevant reads as follow :
"25(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the courts of Magistrate."
Sub-section (3) reads as follows :
"(3) Where no Assistant Public Prosecutor is available for the purpose of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case :
Provided that a Police officer shall not be so appointed :---
(a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or
(b) if he is below the rank of inspector."
Section 24 provides for Public Prosecutor. Sub-section (3) provides :
"For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutor for the district."
I have referred to these provisions only to show that the intention of the legislature seems to be that the Public Prosecutor or Assistant Public Prosecutor as the case may be, will remain in charge of the conduct of the prosecution and any person who is instructed will act under his directions. The purpose of this section is that the Public Prosecutor or Assistant Public Prosecutors are appointed to conduct the prosecutions on behalf of the State. Public Prosecutor holds public office. He does not represent any particular client, but he represents the State. The same status is given to the Assistant Public Prosecutor also, inasmuch as both of them represent administration of justice. Public Prosecutor being officer holding public office, is responsible to conduct the case. He acts as machinery to assist the Court in deciding the guilt or innocence of the person concerned it will be incongruous and absurd to suggest that any other person should be allowed to interfere with the case and should be allowed to conduct, the prosecution with the permission of the Court in disregard to the position and functioning assigned to the Public Prosecutor.
30. In the present case, it is curious to note that application was made to the Court for permission and I hasten to add that the same is restricted to a prayer that the private complaint which is filed by the petition should he allowed to be conducted by the complainant's Advocate and the prosecution should be conducted by the Public Prosecutor. In my opinion, it is total misconception of law as provisions of section 301 or 302 do not provide for any such contingency at all. Section 301(2) as I have shown above, contemplates grant of permission only after certain stages i.e. submission of written arguments evidence is closed in the case. On the plain wording of this section, it is not possible to accept the contention that a private person can independently conduct the prosecution or he has any right to conduct the prosecution at all. The permission mentioned in sub-section (2) of section 301 relates to specific act of submission of written arguments and this stage of submitting written arguments is also indicated by using the words" after the evidence is closed in the case." In this view of the matter the present application made by the complainant inviting the Court to exercise the powers under section 301(2) of the Code, seems to be not justified at all. I fail to understand how this prayer for conducting independently, separate parallel proceedings in regard to private complaint can be allowed by any Court whatsoever. The specific prayer made in the application made by the complainant's's Advocate that the should be allowed to conduct case No. 1555 which case relates to joint trial of the private complaint as well as police report submitted in this case. Apart from the clear prayer made in the application, the arguments which were advanced in the courts below as well as well as in this Court seem to have been based on misconception of law. I, therefore reject the same.
31. As I have shown above, the contention raised by the learned Counsel for the petitioner is that the Magistrate should have considered the provisions of sections 301 and 302 of the Criminal Procedure Code. I am afraid that such a contention is not warranted. I have stated above these sections. I wish to indicate here again that taking a most charitable view, on the prayer made or set out in the arguments before me, to allow the complainant to conduct the prosecution under section 301(2). I do not think that the complainant has any right except of bare acting. The words used section 301(2) are "pleaders so instructed shall act therein under the directions of the Public Prosecutor". I am referring to this again only to show that the learned Counsel for the petitioner relied on the judgment of the Punjab High Court in cited above in support of his contention that the word "act" used in this section should be understood to mean "conducting prosecution itself". The Punjab High Court in the said judgment was dealing with section 493 of old Criminal Procedure Code, which now stands redrafted as section 301 in the present Code. The Punjab High Court while dealing with section 493 interpreted the word "act" to mean power to examine or cross-examine the witnesses and to address the Court. I am afraid that the reasoning of the Punjab High Court in this regard does not advance the object of the legislature underlying section 301(2). The word "act" dependent on the words "under directions of the Public Prosecutor.". If the word "act" used in section 301(2) shall include examination or cross-examination of the witnesses, the words "Under the directions of the Public prosecutor" used in this section will be meaningless. Such wider interpretation of the word "act" is not warranted by the provisions of this section. The word "act" has been interpreted by the Supreme Court in the case of Aswini Kumar Ghosh v. Arabindo Bose, reported in 1953 Supreme Court Report page 1, wherein the Supreme Court has said that the word "act" strictly speaking means taking of substantial steps in the course of proceeding in the Court, while pleading means oral submissions. I think, though written submission of the argument is provided in this section, with permission of the Court, the legislature has intended to restrict the pleading to the extent of submitting written arguments after a certain stage, by using the word "act" restricted to intend only to show that something is to be done by a person in the course of the trial. The word "act" used with reference to steps to be taken in the trial can only mean to take steps to adduce evidence to examine or cross-examine or cross-examine the witnesses. This word "act" if it is interpreted to mean to imply power to examine or cross-examine the witnesses independently, it will defeat the provisions of section 301(2) which clearly directs that the prosecution will be conducted by the Public Prosecutor who is in charge of the case. This will involve duplication of the procedure. If the Public Prosecutor examines one witness, the pleader instructed may choose to examine him again or even conduct the cross-examination which is practically interference with the examination or cross-examination of witnesses during the trial. This difficulty is obvious if such joint functioning is allowed. The words "under directions of the Public Prosecutor" must be construed in their ordinary meaning i.e. to say that the Public Prosecutor will guide and control the conduct of the prosecution before the Court. The word "act" must be given a limited meaning i.e. to take some steps only under the directions of the Public Prosecutor. The Public Prosecutor alone is the sole officer to decide general policy of the trial. In view of this interpretation of the words used in section 301(2), I think there is no right to ask for permission whatsoever to conduct the prosecution independently ignoring the directions of the Public Prosecutor.
32. Mr. Vakil, the learned Counsel for the respondent invited my attention to few judgments which I purpose to rely in support of the contention raised, that no such permission can be granted which will lead to an impression as if joint trial is conducted by two separate Counsel functioning independently, in a particular case. He cited the following authorities :
(1) Emperor v. Janke Gopal, A.I.R. 1936 Bom. 35.
(2) Atmaram v. State, .
(3) Ahmed Mahomed v. Emperor, A.I.R. 1940 Sind 220.
In A.I.R. 1936 Bom. 35, a Division Bench of this Court dealt with a question whether the Court Jamadar who is empowered to conduct the prosecution by the Local Government was entitled to conduct the prosecution without the permission of the Magistrate or not. It was held by this Court that where there is an officer who has power, present in Court, it cannot be open to the Magistrate to give permission to some other person to conduct the prosecution either instead of or along with him without his consent.
33. In which is also a Division Bench Judgment of this Court, it is laid down that since all the prosecutions are really prosecutions on behalf of the State, it is not possible to accept the arguments that the prosecutions which are intended by the legislature to be covered by section 161 of the Bombay Police Act, are prosecutions initiated on private complaints and not prosecutions initiated on police reports. The use of the words "prosecution section 161(1) necessary implies that the State is referred to in that provision, and it must therefore, follows that every prosecution for an offence specified in section 161(1) will come under the mischief of that provision irrespective of whether it is initiated on a private complaint or a police report.
34. This interpretation of section 301(2) is in accordance with the policy of the legislature expressed by introducing new section 210 of the Criminal Procedure Code. This is an additional reason to reject the argument that the private complainant can engage Advocate of his own choice to conduct the prosecution initiated on private complaint if subsequent prosecution is also filed on police report and the case is allowed to be tried jointly under the provisions of section 210 of the Code. Section 210 was introduced by new Code. The joint Select Committee which enacting this section stated that this section is provided to secure that the private complainants do not interfere with the course of justice. According to the Joint Select Committee, when a police report is received in a case filed before the Magistrate on private complaint, the two cases should be tried together. It is only in such cases where accused are different or same accused is not facing trial on police report, that the powers of the Magistrate to deal with the complaint is retained under sub-section (3) of section 210. Under the old Code, there was sufficient uncertainty about the procedure to be followed in such cases. In order to remove this anomoly this section is enacted. Being in mind the purpose of section 210 with which we are directly concerned in this case, I find it difficult to accept the submissions made by the learned Counsel for the petitioner.
35. In this case it is curious to note that even memo of revision application in its prayer clause also to a certain extent does not clearly state that permission is sought under section 301(2). What is stated in the memo of provision does show how ill-drafting and improper drafting of the prayers can lead to miscarriage of justice before the courts. The prayer (a) read as follows :
"That the records and proceedings in Case No. 15/S of 1982 and in case No. 1555/P of 1982 be called for and after examining the same the order dated 8-7-1983 passed by the learned Magistrate be quashed and set aside and he be directed to permit the prosecution in Case No. 15/S of 1982 to be conducted by the Advocate engaged by the applicant."
This prayer shows that the complainant never intended to approach the Magistrate within the meaning of sub-section (2) of section 301, asking him to exercise power and to permit him to act under directions of the Public Prosecutor. I am only saying this because unnecessary lengthy hearing was given in this case in which the vague controversy was raised before me and it was merely contended that the learned Magistrate ignored the provision of section 301(2), which was brought to his notice, in order to show that such case was made before the learned Magistrate. I have examined the above prayer and also the earlier prayers made before the Magistrate. This again indicates the manner in which the contentions are raised in the courts below. This would result in unnecessary protraction of simple issue and involve delay in criminal trial which is contrary to spirit of rules of law.
36. Turning to the other aspect of the case, it is desirable to notice that the complainant in this case has also filed civil suit. It appears that the complainant moved the learned Magistrate on 30th March, 1982 stating that on 25th or 26th March, 1982 he was prevented from entering the suit premises. It appears that on 30th March, 1982 he also made a grievance that from 25th or 26th March, 1982 he also made a grievance that from 25th or 26th March, 1982 he was trying to approach the police but the police had not given any assistance to him. It appears that on 1st April, 1982 the complainant filed a suit bearing No. 2075 of 1982 in the Small Causes Court at Bombay and obtained interim injunction restraining the accused, their servants and agents from dispossessing or from interfering with his possession and enjoyment of the suit premises. I fail to understand if the grievance of the petitioner in the complaint was that the locks of the shutters were changed and he was forcibly dispossessed and wrongfully restrained on that day, if the limited inference is taken at this stage, how such a prayer can be made by him in the suit, while he was in the possession on 1st April, 1982. This aspect does not concern in this case, but I have referred to that aspect since the matter was argued before me quoting several matters together and it appears that adjournments were sought in this case. The procedure adopted by the complainant was to delay his own complaint. It is surprising that the complainant in such a case was not keen and anxious to proceed with the case. This observation will not affect his case while determining the whole controversy or in the civil suit.
37. Mr. Vakil, the learned Counsel for the respondents pointed out that by an earlier order dated 31st August, 1982, the learned Magistrate has preserved the right of the complainant to act in this case. The said extract of the judgment of the learned Magistrate dated 31st August, 1982 is quoted at page 15 of the paper book, it is as follows :
"In my opinion, the fears of Mr. Gandhi are not well-founded. If a joint trial is ordered that does not mean that the present complainant has been asked to close his mouth and not to make any submission. He will be having every right to make request to the Court to examine the witnesses mentioned by him in his complaint. As matter of fact, the present complaint filed by Anthony D'Souza will be treated as a part and parcel of the police report and the trial shall proceed on the basis of the private complaint and the police report."
It was contended by the learned Counsel for the respondents that relying on the said observations of the learned Magistrate, who had permitted joint trial, the Advocate for the complainant attempted to interfere with the conduct of the prosecution. The above extract will show that the learned Magistrate has used the expression. If a joint trial is ordered that does not mean that the present complainant has been asked to close his mouth and not to make any submission." He will be having every right to make request to the make the Court to examine the witnesses mentioned by him in his complaint." These observations perhaps, were made by the learned Magistrate because, it appears that long arguments must have been advanced before him which is disclosed by the grounds of this revision set out at (e) to (h) in the petition. The Magistrate has taken a very liberal and charitable view and permitted this liberty. The learned Counsel for the petitioner contended before me that the Magistrate did not hear the arguments in this behalf. This grievance does not appear to be correct. I have gone through the record and after hearing the arguments at length, I do not find any substance in this grievance. In fact, because of such lengthy arguments before him as indicated by the grounds set out in this petition, in my opinion, those observations of the learned Magistrate must have been prompted. However, as I have held that section 301(2) does not empower the Magistrate to grant such permission to appoint independent Advocate to conduct the prosecution such observations need some explanation. Whole proceedings in regard to the permission and in regard to the way in which the arguments were advanced before the Magistrate seem to a certain extent misleading and misconceived.
38. The learned Counsel for the respondents drew my attention to certain facts. It was submitted by him that the observations of the learned Magistrate as extracted above, have been relied on by the learned Counsel for the petitioner to meddle with the trial. At one stage, accused Nos. 3 and 4 remained absent without the permission of the Court and at that time, Advocate for the complainant made submission and insisted the Magistrate to take a note of the same. It was stated by the learned Counsel for the respondents that application for exemption of certain accused was made on the ground that he had suffered a fracture and he was actually brought in Court on a stretcher. Under these circumstances, when the application for exemption was being pressed by the prosecution, the learned Counsel for the complaint vehemently opposed the same, and therefore, he was told by the Magistrate that he has no say in the matter. The above extracts which are quoted, was cited by him along with his submissions. The learned Counsel for the petitioner frankly admitted this position and he stated that he has made a grievance in the revision application itself. He also explained by saying that he was entitled to bring to the notice of the Magistrate that certain accused were absent without the permission of the Court. It is precisely such sort of interference which would not only protract the trial but even obstruct true progress of the trial in the Court . Against this background, the learned Counsel for the respondents contended that this observation should be explained by this Court.
39. The apprehension expressed by the learned Counsel for the respondents seems to be justified. I, therefore, feel that said observation of the learned Magistrate saying that" even if joint trial is ordered that does not mean that the present complainant has been asked to close his mouth and not to make any submission", cannot authorise the petitioner to have independent choice of separate hearing at different stages of the trial for different purposes. The liberty given to the complainant is in accordance with the solitary principle of fairness, i.e. to avoid serious prejudice to the complainant. If the Public Prosecutor or any one else who is in charge of the case is otherwise not conducting the prosecution or otherwise failing in his duty or commits any lapse, it may be open for the Advocate for the complainant in such a case to bring this fact to the notice of the Court for the ends of justice. This observation of the learned Magistrate will not authorise the complainant's Advocate to interfere or participate in the trial except under the directions of the Public Prosecutor. It must be made clear that this permission will have to be given by the Public Prosecutor and if the Public Prosecutor does not grant such permission and does not require assistance of the private complainant's Advocate, the complainant or his Advocate will not be entitled to appear at all.
40. In the result, the revision application is liable to be dismissed. Rule is discharged. Mr. Gandhi, the learned Counsel for the petitioner made oral application for leave to appear to the Supreme Court. Leave refused.
41. As the complaint filed by the complainant is pending for a long time, I think that the Magistrate will take up this complaint as early as possible and after giving a reasonable opportunity to lead evidence, will decide the matter at the earliest.
42. Application for stay made by Mr. Gandhi is refused.