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TMI Blog2012 (9) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is alleged that one HC Omprakash instead impersonated himself as the complainant/first informant, and describing the incident as an accident, got a false FIR No. 198/2011 registered at P.S. Jyoti Nagar, and recorded that he could not find the petitioner or any other eye witness, despite the fact that the petitioner gave H.C. Omprakash a detailed account of the incident, told him about the incident and also disclosed the whereabouts and names of some of the offenders, at the hospital. The IO/SHO forged the petitioner's signature on a paper to frame his false statement describing the incident as a mere quarrel. This denied the petitioner the right to receive a copy of the FIR under section 154(2), Cr. P.C. as well as to receive a communication u/s 173(2)(ii), Cr. P.C. as to the action taken by the police. The IO/SHO further gave a press release mentioning the incident as only a case of road rage. Moreover, he also deliberately framed a false site map of the crime scene, omitted to find the owner of the motor cycle involved, omitted to find the nexus between ASI Satbir with the accused, and also failed to take on record even the record of the PCR van's report to PCR dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity before law. vi. An appropriate writ, order and/or directions commanding the learned ASJ to permit the petitioner to conduct prosecution by the pleader of his choice. vii. A direction to respondent no 2 to improve the law and order and to provide police protection to the petitioner and his family. Arguments of parties 3. To show that that the writ petition is maintainable, learned counsel placed reliance on K.T. Plantation v. State of Karnataka, 2011 (8) SCALE 583 where it was held that the rule of law is a basic feature of our Constitution. It was also submitted that the Supreme Court had in Tashi Delek Gaming Solutions Ltd. v. State of Karnataka and others, MANU/SC/2391/2005 : (2006) 1 SCC 442 held that access to justice is a human right. 4. As regards prayer (i), learned counsel for the petitioner placed reliance on the ratio of the decision reported as Kashmiri Devi v. Delhi Administration and Anr. MANU/SC/0237/1988 : AIR 1988 SC 1323 to contend that as there were two rival versions in respect of the same episode there should have been two different FIRs, and the investigation for those could have been carried out by the same investigating agency. Counsel also placed relian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to the accused. Lastly, it was contended that as in India criminal justice is administered through an adversarial system, the complainant/victim ought to have a right similar to that of the accused under section 303, Cr. P.C. 7. Alternatively, it was urged that since the present case involved collusion of police officials with the accused, to ensure fairness of trial the counsel for the complainant be allowed to conduct prosecution by extending the scope of section 302, Cr. P.C. to include even a trial before a court of session. 8. Counsel for the State defended the order of the Additional Sessions Judge, stating that he had rightly denied the application for direction for further prosecution as after commencement of trial the same function can be taken care of by the trial judge in accordance with Section 311, Cr. P.C. Counsel stated that no fault could be found in Court's observation that it is well settled that the police is not de-barred from proceeding with further investigation into the matter if some incriminating evidence or material is subsequently discovered. 9. Counsel for the State, in response to the challenge to the constitutionality of section 225 and 301, Cr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence of any witness left out by the parties is essential or not (Ram Bali v. State AIR 1952 All 289). The court may summon witnesses, and if the prosecution declines to examine them, the court may thereupon, acting on its own initiative, cause them to be produced (Satyendra v. Emperor MANU/WB/0225/1922 : A.I.R. 1923 Cal. 463). The power of the court to examine a witness as conferred by section 311, cannot be curtailed in any manner or beyond any stage, so long as the court remains seized of the matter [Gurdev Singh v. State, 1982 Cr LJ 2211 (P H)]. 11. It is also pertinent to recollect Section 165, Evidence Act, 1872 which reads as follows: 165. Judge's power to put questions or order production.- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing: and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross- examine any witness upon any answer given in reply to any su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the accused do not apply for examination or re-examination, as the case may be, the Trial Court would still be competent to do so on its own motion by virtue of both section 311, Cr. P.C. and section 165, Evidence Act. 14. The Court's notice was brought to the decisions of the Supreme Court in Azija Begum (supra) and the Kashmiri Devi (supra) case. In this Court's opinion, both cases can be distinguished from the present case because in those, instead of arresting/implicating the alleged culprit, the police had in both cases arrested someone else. In the present case, we note that the accused have already been charged under section 302/34, IPC. The offence they have not been charged under and with which the petitioner is aggrieved is Section- 397, IPC. Moreover, the accused as per the police version and as per the petitioner's account are the same based on the petitioner's allegations, the FIR in this case was filed against the same accused. It is not the prosecution case that there were any persons who should have been arraigned as accused. The decisions of the Supreme Court in Kari Choudhary v. Most. Sita Devi and Ors. MANU/SC/0781/2001 : 2002 Cri LJ 923 and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is violation of Article-14 under the Constitution. It was argued that it is discriminatory to give accused the right to instruct a pleader of his choice, but not give the same entitlement to the complainant/victim. The question is not as simple as it is stated. In a criminal trial, the accusations are made by the investigating agencies, based on which the person is charged with an offence; such accusations are sought to be proved by way of evidence by the prosecution. The purpose of a criminal trial is not to convict the person charged. Instead, it is a process of finding the truth of the allegations made against the person at trial and fixing responsibility. Thus, at trial, the case is prosecuted by a Public Prosecutor (PP), on behalf of the State. The PP is expected to assist the court in arriving at the truth, and by now it is well settled that he has an independent role. 17. In this regard, the Karnataka High Court in K.V. Shiva Reddy v. State of Karnataka and Ors., MANU/KA/0204/2005 : 2005 Cri. LJ 3000, discussed the status and responsibilities of a Public Prosecutor. Some extracts of the judgment are as follows:- 14. The Delhi High Court in the case of Ajay Kumar v. State a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hirst to reach the case in the 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 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 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. 20. In Medichetty Ramakistiah v. State, of Andhra Pradesh MANU/AP/0266/1959 : AIR 1959 AP 659 the Andhra Pradesh High Court held as under: The principle that the Public Prosecut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upright Public Prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest. He has no client or constituency apart from the State. He is above the personal loyalty. He does not have a dual capacity. He has to safeguard public interest in prosecuting the case. Public interest also demands that the trial should be conducted in a fair manner, heedful of the rights granted to the accused under the laws of the country including code. It is no part of his obligation to secure conviction of an accused in any event or at all costs. Nor is he intended to play a partisan role or become party to the prosecution of the accused or lend support, directly or indirectly to a denial of justice or of fair trial to the accused. 20. This Court fully concurs with the above views. They highlight the strong and cogent reason behind treating differently the accused and the complainant in a criminal trial by allowing the defence to be conducted by the counsel of the choice of the accused, but the prosecution to be compulsorily conducted by the Public Prosecutor. Serious crimes in respect of which the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor. 10. In the magistrate's court anybody (except a police officer below the rank of Inspector) can conduct prosecution, if the magistrate permits him to do so. Once the permission is granted the person concerned can appoint any counsel to conduct the prosecution on his behalf in the magistrate's court. 11. But the above laxity is not extended to other courts. A reference to Section 225 of the Code is necessary in this context. 22. Petitioner has not made any specific allegations about the existence of any threat or danger to him or his family. In his application to the DCP (Annexure 8), he stated that he was informed about accused and others beating up his brother by a tea stall owner. He further stated therein that the tea stall owner has disappeared, and thus the threats are not empty ones, but serious in nature. In this context, the Court is of opinion that such a request can be made to the court concerned if any threat exists. The court would consider the application on its merits. In view of the above discussion and findings, this Court is of the opinion that the petition lacks in merits and is dismissed, but subject to the liberty granted in Para-23. No costs. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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