1. A short question raised for consideration is as to "Whether a lawyer engaged by the first informant has a right of audience while opposing a bail application filed under Section 438 of the Code of Criminal Procedure ?
2. The brief facts are that apprehending arrest in connection with Crime No. 16/2006, registered at Police Station Telibandha, Raipur (C.G.) for commission of the offence punishable under Section 409 of the IPC, the applicant has field this application Under Section 438 of the Code of Criminal Procedure (hereinafter referred to as Cr. P.C. or Code) for grant of anticipatory bail. It is stated that the first informant is Indira Gandhi Agricultural University, Raipur. After filing of this application, the first informant, by M.Cr. P. No. 566/2006 is seeking permission to assist prosecution and to make objection to the bail application. A reply to the said application has been filed by the applicant and the same is opposed. During the course of arguments on 2-5-2006, learned Counsel for the applicant raised serious objections contending that the counsel engaged by the first informant has no locus standi to independently advance oral arguments and oppose the bail application. A joint prayer was made at the Bar to decide this point first and then to decide the bail application on merits. It is in this manner, the matter has cropped up for hearing on a short point referred to above.
3. Referring to the provisions of Section 301, Cr. P.C. learned Senior Counsel for the applicant argued that on the analogy of the limited right under the aforesaid section, the role of the private counsel engaged by the first informant in a matter under Section 438, Cr. P.C. must also be limited to act under the directions of the public prosecutor and the counsel so engaged has no right of audience and he cannot advance oral arguments independently. He also referred to the decision rendered by the Apex Court in the matter of Shiv Kumar v. Hukum Chand . He further argued that looking to the language of Section 301(2) Cr. P.C., about assisting the public prosecutor and also about submission of the written arguments, there is hardly any scope to hold that the lawyer so engaged has a right of audience or has a right to address the Court orally at the time of hearing of the case on merits. He referred to the decision rendered by the Division Bench of the Calcutta High Court in the matter of In Re, Rakhan Ojha alias Rakhal Chandra Ojha reported in 1988 Cri LJ 278. Supporting his above contention, learned Counsel also referred to a decision rendered by the single Bench of the Delhi High Court in the matter of Smt. Indu Bala v. Delhi Administration 1991 Cri LJ 1774. He further referred to the decision of the single Bench of the Madras High Court rendered in the matter of P.S. Saravana-bhavanandam v. S. Murugaiyyan 1996 Cri LJ 1540. Lastly, he also relied on the judgment of the Punjab and Haryana High Court in the matter of Kuldip Singh v. State of Haryana 1980 Cri LJ 1159.
4. Per contra, learned Counsel for the first informant, referring to the decision rendered in the case of Bhagwant Singh v. Commissioner of Police argued that on the analogy of given opportunity to the first informant to hear him at the time of Magistrate deciding not to take cognizance of the offence under Sub-section (2) of Section 173, the first informant, must be given an opportunity of hearing in a matter Under Section 438, Cr. P.C. Learned Counsel further tried to develop his arguments referring to para 13 of the decision rendered in the matter of Puran v. Rambilas that when a petition Under Section 439(2) of Cr. P.C. can be entertained at the instance of the father of the deceased and he, while dealing such an application is heard, then the first informant of the crime must also be heard while dealing with a petition Under Section 438, Cr. P.C. He also referred to the, decision rendered in the matter of J.K. International v. State (Govt. of NCT of Delhi) and submitted that when a complainant can be allowed to be heard in a matter of quashing of criminal proceedings initiated by him, then, the first informant of the case may also be allowed to be heard at the time of hearing of an application filed Under Section 438, Cr. P.C. by the accused. He also referred to the decision rendered in the matter of Medichetti Ramakistiah v. The State of Andhra Pradesh . His last submission was that an effort to bring more facts on record should be encouraged with a view to give an adequate decision in the case.
5. I have heard learned Counsel for the parties at length.
6. In Shiv Kumar's case (supra), while dealing with the matter Under Section 301, Cr. P.C. the Apex Court held that it is as well for the protection of the accused persons in Sessions trials (in India) that provision is made to have the case against him prosecuted only by a Public Prosecutor and not by any counsel engaged by any aggrieved private party. Fairness to the accused who faces prosecution is the raison d'etre of the legislative insistence on that score. Defining the underlying principles, the Apex Court held that the Legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involed in the case, the expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to 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 to to the notice of the Court if it comes to his knowledge. The Apex Court lastly said that a private counsel, if allowed a free hand to conduct prosecution would focus on bringing the base 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. The Apex Court expressed agreement with the observations of the Division Bench of the High Court of Andhra Pradesh in the matter of Medichetti Ramakistiah's case (supra) that "a prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such Courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that Courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party." These observations of the Andhra Pradesh High Court have also been relied upon by learned Counsel for the first informant.
7. The Division Bench of the Calcutta High Court also held in the matter of In Re, Rakhal Ojha alias Rakhal Chandra Ojha 1988 Cri LJ 278 (supra) that a plain reading of Sub-sections (1) & (2) of Section 301 Cr. P.C. makes it clear that if in a case which is in charge of a Public Prosecutor or Asstt. Public Prosecutor, a private person engages a lawyer, then, notwithstanding such engagement, the Public Prosecutor or Asstt. Public Prosecutor, who is in charge of the case, shall conduct the prosecution and the lawyer engaged by the private person shall act therein under the direction of the Public Prosecutor or Asst. Public Prosecutor and he can only submit written arguments and that too with the permission of the Court. It was held vide para 8 that the lawyer so engaged by a private person has no right of audience in a case which is in charge of a Public Prosecutor. This analogy derived by the Calcutta High Court appears to be based upon the language of Section 301(2) Cr. P.C. It is held that when the section Itself says that the lawyers engaged may with the permission of the Court, submit written arguments after the evidence is closed, is clear and unambiguous and there is no scope for going behind the letters of the law to hold that such a lawyer can address the Court orally also.
8. In the matter of Smt. Indu Bala (1991 Cri LJ 1774 (Del) (supra), a single Judge 6f Delhi High Court, while dealing with the similar question held that the counsel for the complainant, has no right to be heard in a petition filed Under Section 438, Cr. P.C. It was also held that in view of the scheme of the Code of Criminal Procedure, he can only brief the State Counsel and it is only the State Counsel who can be heard in opposing an application seeking anticipatory bail. This order refers to the decision rendered in the matter of Kuldeep Singh v. State of Haryana (supra) 1980 Cri LJ 1159 and is based upon the analogy that there is no provisions made in the Code that a complainant or a third party can intervene and make any submission independently in pressing the application for frant of bail or anticipatory bail.
9. In the matter of P. S. Saravana-bhavanandam (1986 Cri LJ 1540) (Mad), (supra), the single Bench of Madras High Court also considered the question as to whether private parties can be allowed to intervene in the anticipatory bail petition with a view to represent the matter before the Court, when there is no provision for intervention in the Criminal Procedure Code. The said Court held that by intervention, it is understood that a party who is in possession of facts may appear before the Court as an intervener and make his submissions oh the matter in issue. In such cases, such a party is shown as intervener in the proceedings before the Court. When a party cannot be impleaded in a criminal proceeding, he cannot be permitted to come in under the guise of an intervener. However, the Court held that at the same time, bearing in mind the wholesome observations of the Supreme Court (referred to in the said case), the right of a party to represent the matters before the Court cannot whittled down into a strait jacket formula of locus standi, which is unknown to the criminal jurisprudence. It is open to any party to make his representations in the bail proceedings pending before the High Court before the enquiry or trial starts.
10. Admittedly, there is no provision made in the Code that a complainant or a third party can intervene and make any submissions independently in opposing the application for grant of anticipatory bail. Whatever is there, is in Section 301(2) of the Code. They are the provisions which are covered under Chapter XXTV which deals with the general provisions as to enquiries and trials. Sub-section (1) of Section 301 provides that the Public Prosecutor or Asstt. Public Prosecutor who is in charge of a case may appear and plead without any written authority before any Court in which that case is under enquiry, trial or appeal. Sub-section (2) of Section 301 further provides that if in any such case, a private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Asstt. 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 Asstt. Public Prosecutor, and may with the permission of the Court submit written arguments after the evidence is closed in the case. This makes abundantly clear that there is no prohibition of law in permitting a private counsel engaged by the complainant to prosecute any person, but the area of his functioning has been limited by the mandate of law that is to say he may assist the Public Prosecutor in prosecuting a person, accused of a case, but he shall work and function under the directions of the Public Prosecutor and if so required, he may file written arguments with the permission of the Court, after the evidence is closed in the case. This all makes it very clear that the provisions of the aforesaid sections are that the complete charge of a criminal case cannot be handed over to the hands and entrustment of the private counsel engaged by a private party or the first informant of the case. The underlying principle appears to be embodied in the concept of a fair trial to the accused. As held by the Apex Court, in the matter of Shiv Kumar's case (supra), a private counsel engaged by a party, if allowed a free hand to conduct prosecution would focus to bring the case to conviction even if it is not a fit case to be so convicted, but a Public Prosecutor is not expected to show a thirst to reach the case to the conviction somehow of the other irrespective of the true facts involved in the case. If we apply the similar analogy in a case filed Under Section 438, Cr. P.C. the result comes that the private counsel engaged by the complainant or the aggrieved party can appear in such a case and the party can always make his representation, but the counsel so engaged would not be the complete in charge of the case and he would only work therein under the directions of the Public Prosecutor and shall assist the Public Prosecutor by providing more and more facts to him and at the most, he may with the permission of the Court, submit written arguments at the time of closure of hearing. I am in respectful agreement with the view taken by the single Judge of Delhi High Court in Smt. Indu Bala's case 1991 Cri LJ 1774 (supra) that the counsel for the complainant or the first informant has no right to be heard in a petition filed Under Section 438, Cr. P.C. and he can brief the State Counsel and it is only the State Counsel who can be heard in opposing the bail application.
11. The arguments of the Sr. Counsel for the first informant regarding application of analogy of Section 173(2) Cr. P.C. in a proceeding Under Section 438 Cr. P.C. cannot be accepted. In case of a Magistrate deciding that there is no sufficient ground for proceeding further and dropping a proceeding or taking the view that the proceedings would continue against some of the accused persons for the reason that there is no sufficient ground for proceeding against others mentioned in the first information report, the first informant would certainly be prejudiced because the FIR lodged by him would have failed of its purpose wholly or in part. Since the interest of the first informant is going to be prejudiced it was held in Bhagwant Singh's case that the first informant must be given an Opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cogniazance of the offence and issue process. Indeed, the aforesaid situation is of end of the matter forever and in the said circumstances only, an opportunity of being heard to the first informant has been recognized. However, in a petition Under Section 438 Cr. P.C. for grant of anticipatory bail, there is no question of any prejudice caused to the first informant, even if the applicant is granted anticipatory bail as no right or interest of the first informant is going to frustrate forever.
12. The other argument advanced, on behalf of the first informant, on the provisions of Section 439(2) Cr. P.C. can also not be accepted. The power Under Section 439(2) Cr. P.C. is a power possessed with the Courts mentioned under the said provisions. For settling at motion, the exercise of such a power, any person can invoke jurisdiction of the Court concerned and while doing so, that person would be entitled for hearing to convince the concerned Court, regarding the need to exercise such powers. This is one of the ratio laid down by the Apex Court in the matter of Puran v. Rambilas 2001 Cri LJ 2566 (supra). This power vested with the High Court or the Court of sessions Under Section 439(2) Cr. P.C. cannot be equated with the power and jurisdiction Under Section 438. The powers for cancellation of bail may be invoked by the first informant or the other aggrieved party, and in that situation, he or she would be entitled for audience under the aforesaid provisions, but in Section 438 the first informant or the aggrieved party has no role to invoke jurisdiction because in any case, in such a petition they may not be classified as an applicant. There is no force in this argument and the same is also turned down.
13. The next argument advanced by learned Counsel for the first informant, based upon the principles laid down by the Apex Court in the Matter of J.K. International's case 2001 Cri LJ 1264 is also misconceived. In the said case, the accused approached the High Court for quashing the criminal proceedings initiated by the complainant. The Apex Court held that it may not be that the complainant should have been made a party by the accused himself in the petition for quashing of the criminal proceedings as the accused has no such obligation when the case was charge sheeted by the Police. It is predominantly concern of the State to continue the prosecution, but when the complainant wishes to be heard when the criminal proceedings are sought to be quashed, it would be negatilon of justice to him if he is foreclosed from being heard even after he makes a request to the Court in that behalf. Here the case is not for quashing the complaint or the first information report and in fact, nothing is going to attain finality, so far as the criminal prosecution is concerned and in the said situation, on the basis of the law laid down in the said matter, the first informant cannot be awarded right of audience in this matter.
14. The last argument advanced by the Sr. counsel for the first informant was about the encouragement to an effort to bring more facts on record with a view to give adequate decision in the case. The general rule about the right of audience cannot be befitted in the procedural frame work of the Cr. P.C. This argument advanced on the concept of natural justice can possibly be made applicable, if we bent upon to apply, to an area not covered by any law validly made. In fact, they do not and they cannot substitute the law. If the statutory provisions are clear and unambiguous and the field, for example the field of procedure as in this case, is already occupied by a procedural law, the general rule or prayer permitting hearing with an intention to bring more and more facts on record cannot be permitted. Here, whatever is to be done, is to be done in accordance with the Code of Criminal Procedure and once Code does not permit a right of audience to the complainant while hearing a case for grant of anticipatory bail to the applicant/accused that cannot be transplanted by making necessary implications based on principles of natural justice etc. there is no force in this argument advanced by learned Counsel for the objector and the same can also not be accepted.
15. In the result, I hold that the counsel for the complainant or the first Informant has no right of audience in a petition filed Under Section 438, Cr. P.C. for grant of anticipatory bail. He cannot be permitted to orally address the Court. It is only the State Counsel who can be heard in opposing the bail application. However, the counsel so engaged by the first informant or the complainant can brief the State Counsel and can also make a representation on behalf of the complainant or the first informant, and can assist the State Counsel while opposing the ball application. The objection raised by the counsel for the applicant is upheld. However, in the present facts and circumstances of this particular case, it is observed that if so desired, counsel for the first informant, may file written argument at the time of hearing concluded by the counsel for the State.