IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 1445 of 2003()
1. SHANTHAKUMARI AMMA,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. SUKUMARAN NAIR, AAGED 58,
3. SREEKUMAR, AGED 27,
For Petitioner :SRI.VARGHESE C.KURIAKOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :09/08/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 1445 of 2003
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Dated this the 9th day of August, 2006
O R D E R
This revision petition is directed against an order passed by the
Magistrate refusing permission to the victim/defacto complainant to
conduct the prosecution under Section 302 Cr.P.C.
2. The prosecution is for the offences punishable under
Sections 341, 323 and 354 r/w. 34 I.P.C. The petitioner is a woman
aged about 57 years now. It is her grievance that right from the
beginning, the investigation was not conducted properly by the
Investigating Officers. She had occasion to raise complaints earlier
about the conduct of the investigation. Superior officials of the
police directed investigation by a different police officer than the one
who was conducting the investigation and it was thus that ultimately
the final report/charge sheet was filed in the case.
3. The petitioner raised a grievance before the learned
Magistrate that she apprehends that the prosecution may not be
Crl.R.P.No. 1445 of 2003 2
conducted properly. Even in the final report there are certain observations
against a police officer, who conducted the investigation earlier. The other
police officers are likely to support the said police officer resulting in
improper conduct of the case and thus prejudice to the petitioner. It is in
these circumstances that the petitioner filed a petition under Section 302
Cr.P.C. to permit her to conduct the prosecution under Section 302 Cr.P.C.
by engaging her own private counsel.
4. Evidently the application was opposed. The accused raised an
objection that the sublime presecution by the Public Prosecutor may
degenerate into private prosecution by a counsel engaged by the petitioner
herein. This may not be conducive to the interests of justice and in these
circumstances permission sought may not be granted, it was contended.
5. The learned Magistrate, by the impugned order, refused to grant
permission on the ground that sufficient grounds are not shown. The
learned Magistrate took note of the fact that no specific allegations were
raised against the Prosecutor and in these circumstances the mere fact that
allegations are raised against the Investigating Officer, who conducted the
investigation earlier, is not sufficient to exclude the Prosecutor from the
Crl.R.P.No. 1445 of 2003 3
conduct of the case and leave such prosecution in the hands of a private
counsel of the choice of the petitioner. The court appears to have accepted
the said objection and proceeded to pass the impugned order.
6. The learned counsel for the petitioner submits that the course
adopted by the learned Magistrate is not correct. The counsel relies on the
observations of the Supreme Court in J.K. International v. State Govt.
of N.C.T., Delhi (2001 (1) KLT 870 (SC). The learned counsel for the
petitioner relies also on the observations of this Court in Hamsa v. Asst.
Public Prosecutor (1978 KLT 816). The learned counsel for the petitioner
submits that it will be harsh and unjust to deprive the petitioner of an
opportunity to participate in the proceedings and bring the offender to book.
In these circumstances it is prayed that the revision petition may be allowed
and the impugned order may be set aside granting permission to the
petitioner under Section 302 Cr.P.C. to participate in the prosecution
before the learned Magistrate.
7. The learned counsel for the respondent/accused opposed the
prayer for grant of permission under Section 302 Cr.P.C. The learned
counsel for the respondent relies on the observations of the three Judges
Crl.R.P.No. 1445 of 2003 4
Bench of the Supreme Court in Shiv Kumar v. Hukam Chand & anr.
((1999) 7 SCC 467). The counsel submits that the sublimity with which a
Public Prosecutor/Asst. Public Prosecutor may approach the case may not
be available when a private individual is permitted to prosecute the case
through counsel appointed by her. The learned counsel for the petitioner
submits that the allegations of offence punishable under Section 354 I.P.C.
against the petitioner, a person aged more than 50 years, must convey to the
court that the allegations are not raised bonafide. As a matter of fact, there
is a private dispute between the parties and the alleged incident is the off
shoot of such private dispute. In these circumstances permission may not
be granted and this revision petition may be dismissed, it is prayed.
8. I have considered all the relevant inputs and the submissions by
the counsel. The role of a private individual in a prosecution by the State is
certainly limited. Normally prosecutions have to be conducted by Public
Prosecutors/Asst. Public Prosecutors. The rule admits exceptions in
appropriate cases. Under Section 302 Cr.P.C. the Magistrate is given the
discretion to decide whether a private individual can be permitted to
prosecute an accused in proceedings pending before the court. Sufficient
Crl.R.P.No. 1445 of 2003 5
reasons must be shown to exist to persuade the court to grant such
permission. As observed by the Supreme Court, there is an ocean of
difference between the role of a private counsel permitted to assist the
Prosecutor under Section 301(2) Cr.P.C. and a person permitted to conduct
the prosecution under Section 302 Cr.P.C.
9. A court considering the exercise of the discretion under Section
301(2) vis-a-vis Section 302 must always be alertly conscious of the fact
that private vengeance is not expected to have any role in the prosecution
undertaken by the State. Sections 301 and 302 Cr.P.C. may have
overlapping areas. But Section 302 Cr.P.C. can have no application to
sessions case. The court will always have to ensure that in prosecutions
before courts only sublime interest to ensure public justice survives and not
interest of private vengeance and retalliation.
10. In the facts of the case, I note that the petitioner’s apprehension
of interest against her by police officers is absolutely justified. At the same
time, I am not persuaded to agree that blanket permission under Section 302
Cr.P.C. deserves to be granted to the petitioner. I am satisfied considering
all the relevant inputs that it will be an ideally fit case where the petitioner
Crl.R.P.No. 1445 of 2003 6
can be granted permission to engage a private counsel to assist the Asst.
Public Prosecutor under Section 301(2) Cr.P.C. If the petitioner feels that
the Asst. Public Prosecutor is not properly conducting the case, the
petitioner shall be at liberty to renew the request before the learned
Magistrate for permission under Section 302 Cr.P.C. If such a request is
made, the learned Magistrate must consider such request in the light of the
specific complaint, if any, about inadequate prosecution by the Asst. Public
Prosecutor and then pass appropriate orders as to whether the petitioner is
entitled for permission under Section 302 Cr.P.C. In coming to this
conclusion I take particular note of the fact that before the learned
Magistrate no specific allegation is seen raised against the Asst. Public
Prosecutor. Even in this revision petition allegations are raised not against
the Asst. Public Prosecutor in charge of the case, but against a Prosecutor
who was temporarily placed in charge of the prosecution in the absence of
the regular Prosecutor. Needless to say, I expect the Asst. Public
Prosecutor to imbibe the sublimity which is expected of an Asst. Public
Prosecutor in the conduct of the case. The learned Magistrate shall monitor
such conduct and consider any renewed request by the petitioner for
Crl.R.P.No. 1445 of 2003 7
permission under Section 302 Cr.P.C.
11. The learned counsel for the petitioner submits that the alleged
incident had taken place as early as on 7.12.2000. The trial has not
commenced yet. The learned Magistrate shall ensure that the trial is
undertaken and completed as expeditiously as possible, at any rate, within a
period of four months from the date on which a copy of this order is placed
before the learned Magistrate.
12. With the above observations, this revision petition is dismissed.
It is made clear that the petitioner shall be entitled to engage a private
counsel to act under the directions of the Asst. Public Prosecutor under
Section 301(2) Cr.P.C.
13. Issue a copy of the order free of cost to the counsel for the
petitioner for production before the learned Magistrate.
(R. BASANT)
Judge
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R. BASANT, J.
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Crl.R.P.No. 1445 of 2003
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O R D E R
Crl.R.P.No. 1445 of 2003 9
9th August, 2006
Crl.R.P.No. 1445 of 2003 10