Kumar Vs. Hukam Chand & ANR INSC 307 (30 August 1999)
K.T.Thomas, N.Santosh Hegde
It is as well for the protection of 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 the aggrieved private
party. Fairness to the accused who faces prosecution is the raison detre of the
legislative insistence on that score.
this case, appellant is aggrieved because a counsel engaged by him was not
allowed by the High Court to conduct prosecution in spite of obtaining a
consent from the Public Prosecutor concerned. First respondent was the accused
in the sessions trial wherein appellant wanted his counsels active role to be
played. Appellant and respondent are advocates practicing at the same station.
The grievance of the appellant developed in the following fact situation:
is the brother of five sisters, and the youngest among them, Suman, had secured
creditable academic laurels. She was given in marriage to Dr.Dinesh Kumar Gupta
(the son of the respondent). But about 4 months after her marriage she met with
a tragic death by burns. On a complaint lodged by the appellant, FIR under
Section 302 and 120-B of the Indian Penal Code (IPC) was registered by the
local police against the respondent. But after completion of the investigation
a charge-sheet was laid against him for the offence under Section 304-B of the
Indian Penal Code.
on his part, engaged Shri R.C. Gugnani, advocate, to appear for him in the sessions
court during trial of the case. On 1.7.1996 when appellant was to be examined
as a witness for prosecution, Shri R.C. Gugnani, advocate ventured to conduct
the chief examination of that witness. It was objected to by the counsel for
the accused on the premise that a private counsel cannot conduct prosecution in
a sessions trial. Appellant then moved an application on the same day, the
relevant portion of which reads thus:
the Public Prosecutor has no objection if the case is conducted by Shri R.C. Gugnani,
advocate. That as per the prevailing practice being followed by this Honble Court and as per provisions of section
301(2) Cr.P.C. my counsel has a right to conduct the case under the directions
of the Public Prosecutor. It is, therefore, prayed that in view of the facts
stated above, necessary permission may please be given to the applicant for
conducting the case under the directions of the Public Prosecutor.
seems, the Public Prosecutor in the trial court endorsed the said application.
The trial court passed an order thereon, the material portion of which reads
thus: I accept the application and allow Shri R.C. Gugnani, advocate of the
complainant to conduct under the supervision, guidance and control of the
public prosecutor, while conducting the same case and the public prosecutor
shall retain with himself the control over the proceedings.
was not prepared to have his case prosecuted by the complainants counsel and
hence he approached the High Court in revision. The impugned order of the High
Court was passed by a Single Judge. The operative portion of the said order
allow this revision and direct that the lawyer appointed by the complainant or
private person in this case shall act under the directions from the Public
Prosecutor and may with the permission of the court submit written arguments
after evidence is closed in the case. I further direct that the Public
Prosecutor in charge of the case shall conduct the prosecution. Revision
petition is disposed of accordingly.
counsel for the appellant informed us that trial in the case is over by now.
Nonetheless he pleaded for consideration of the issue as he feels that a
decision thereon by this Court is necessary for future guidance also.
contended that Section 302(2) of the Code of Criminal Procedure (for short the
Code) must be so construed as to enable the pleader of an aggrieved private
person to conduct the prosecution in as best a manner as he deems fit.
301 of the Code reads thus:
Appearance by public prosecutors.- (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 that case is under inquiry, trial or
any such case any private person instructs a pleader to prosecute 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 he 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 of the Code has also some significance in this context and hence that is
also extracted below: 302.
to conduct prosecution.- (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 into the offence with respect to which the
accused is being prosecuted.
Any person conducting the prosecution may do so personally or by a pleader.
must be noted that the latter provision is intended only for magistrate courts.
It enables the magistrate to permit any person to conduct the prosecution. The
only rider is that magistrate cannot give such permission to a police officer
below the rank of Inspector. Such person need not necessarily be a Public Prosecutor.
magistrates 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 magistrates court.
the above laxity is not extended to other courts.
reference to Section 225 of the Code is necessary in this context. It reads
thus: 225. Trial to be conducted by Public Prosecutor.-
every trial before a Court of Session, the prosecution shall be conducted by a
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 the Public
Prosecutor,(vide Section 2(u) of the Code).
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 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.
limits his role to act in the court during such prosecution under the directions
of the Public Prosecutor.
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.
the scheme of the Code the legislative intention is manifestly clear that
prosecution in a sessions court cannot be conducted by any one 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 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, 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 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.
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 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.
early decision of a Full Bench of the Allahabad High Court in Queen-Empress v. Durga
(ILR 1894 Allahabad 84) has pinpointed the role of a Public Prosecutor as
follows: It is the duty of a Public Prosecutor to conduct the case for the
Crown fairly. His object should be, not to obtain an unrighteous conviction,
but, as representing the Crown, to see that justice is vindicated: and, in
exercising his discretion as to the witnesses whom he should or should not
call, he should bear that in mind. In our opinion, a Public Prosecutor should
not refuse to call or put into the witness-box for cross-examination a truthful
witness returned in the calendar as a witness for the Crown, merely because the
evidence of such witness might in some respects be favorable to the defence. If
a Public Prosecutor is of opinion that a witness is a false witness or is
likely to give false testimony if put into the witness-box, he is not bound, in
our opinion, to call that witness or to tender him for cross- examination.
are in complete agreement with the observation of a Division Bench of the High
Court of Andhra Pradesh in Medichetty Ramakistiah & ors. v. The State of
Andhra Pradesh (AIR 1959 A.P. 659) we deem it fit to extract the said
observation: 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.
Division Bench of the same High Court in re Bhupalli Malliah & ors. (AIR
1959 A.P. 477) had in fact deprecated the practice of Public Prosecutors
sitting back and permitting private counsel to conduct prosecution, in the
following terms: We would like to make it very clear that it is extremely
undesirable and quite improper that a Public Prosecutor should be allowed to
sit back, handing over the conduct of the case to a counsel, however eminent he
may be, briefed by the complainant in the case.
forceful is the observation of Bhimasankaram, J. for the Division Bench in Medichetty
Ramakistiah (cited supra) which is worthy of quotation here: Unless, therefore,
the control of the Public Prosecutor is there, the prosecution by a pleader for
a private party may degenerate into a legalized means for wreaking private
vengeance. The prosecution instead of being a fair and dispassionate
presentation of the facts of the case for the determination of the Court, would
be transformed into a battle between two parties in which one was trying to get
better of the other, by whatever means available. It is true that in every case
there is the overall control of the court in regard to the conduct of the case
by either party.
cannot extend to the point of ensuring that in all matters one party is fair to
therefore, conclude that the High Court in the impugned order has correctly
approached the issue and it does not warrant any interference. We, therefore,
dismiss this criminal appeal.