Awadhesh Singh Son of Late Hardeo Singh Vs. the State of Bihar - Court Judgment

Excerpt:
criminal procedure code, 1973—sections 301 and 302—locus standi to plead a case—every person who is entitled to set machinery in motion for prosecution of any offence which is an offence against the society and such citizen has a locus standi to put objection to attempt of withdrawal of case—when in such a case when any citizen who has a right to set the law in motion for the prosecution, on same analogy appellant has no right to oppose the prayer of deceased’s father—prayer of deceased’s father cannot be objected to on the ground that he has no locus standi in this case for appearing and arguing this appeal in assistance of public prosecutor and also particularly in a situation when public prosecutor has no objection to such prayer—capacity of deceased’s father cannot be questioned on the ground that he has no locus standi for making prayer for appearing and arguing this appeal in aid and in assistance of additional public prosecutor—vakalatnama filed by deceased’s father to be accepted. - - 509, para 6) 'punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi. heard.1. the point which arises for an order of this court is that satish prasad singh, the father of the deceased, has filed a vakalatnama of his counsel with a view to permit him to appear and plead this appeal in assistance of the respondent-state of bihar. practically, we did not find any obstruction in granting such permission but since such move, as made by the father of the deceased, was opposed by the counsel for the appellants and a previous order of this court dated 22.12.2008 passed in another cr. appeal bearing no. 190 of 2008 did not stand in favour of the deceased's father, inasmuch as, such prayer of deceased's father was refused there on the sole ground that submissions of the counsel in that regard did not carry any weight though in that case we do not find any specific submission made by the counsel in that regard.2. learned counsel for the appellant mr. markandeya singh opposed the prayer of the deceased's father and he submitted that the deceased's father has no locus standi to appear before this appellate court and seek any permission for making submission in this appeal, either in assistance or for the aid of the public prosecutor who will conduct the hearing on behalf of the respondent-state of bihar.3. mr. ashwani kumar sinha, learned additional public prosecutor has not made any objection to the prayer of the deceased's father in assisting him or making any submission in his assistance during the hearing of this appeal. the deceased's father has filed vakalatnama for his participation in the hearing of this appeal through his counsel on the ground that the informant who was a chowkidar had no interest in the prosecution during trial and that he being the father of the deceased is interested to see that this appeal is heard with all his assistance so that the cause of justice is not frustrated.4. since the order of this court dated 22.12.2008 passed in the said cr. appeal no. 190 of 2008 did not stand in favour of the deceased's father and his prayer has been opposed by the appellant on the ground that deceased's father has no locus standi to appear in this case and make his submissions in the aid of the public prosecutor conducting this appeal for the respondent-state of bihar, we feel to make a discussion for deciding this point.5. for deciding the aforesaid point we would take assistance from the ratio in the case of sheonandan paswan v. state of bihar and ors. reported in : 1987crilj793 wherein at paragraph 14 of the decision the apex court held as follows:.it is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. it is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. it is for this reason that in a.r. antulay v. r.s. nayak : 1984crilj647 , this court pointed out that (scc p. 509, para 6) 'punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi....'. this court observed that locus standi of the complainant is a concept foreign to criminal jurisprudence. now if any citizen can lodge a first information report or file a complaint and set the machinery of the criminal law in motion and his locus standi to do so cannot be questioned, we do not see why a citizen who finds that a prosecution for an offence against the society is being wrongly withdrawn, cannot oppose such withdrawal. if he can be a complainant or initiator of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. if the offence for which a prosecution is being launched is an offence against the society and not merely an individual wrong, any member of the society must have locus to initiate a prosecution as also to resist withdrawal of such prosecution, if initiated. 6. thus, in a case where a withdrawal of prosecution was sought by the state which was prosecuting the case and when a private person objected to such withdrawal which was resisted by the accused in that case the apex court held that every person who is entitled to set the machinery in motion for prosecution of any offence which is an offence against the society any such citizen has a locus standi to put objection to the attempt of withdrawal of the case. when in such a case when any citizen who has a right to set the law in motion for the prosecution, we feel that on the same analogy there is reason to think that the appellant has a right to oppose the prayer of the deceased's father because he had every right to set the law in motion for the prosecution of the appellant and hence, the prayer of the deceased's father cannot be objected to on the ground that he has no locus standi in this case for appearing and arguing this appeal in the assistance of the public prosecutor and also particularly in a situation when the public prosecutor has no objection to such prayer. in the fitness of things and fair dispensation of justice also we find it justified to exercise our discretion to allow the deceased's father to appear through counsel for the assistance of the public prosecutor.7. learned counsel for the appellant cited a decision in the case of shiv kumar v. hukam chand and anr. reported in (1999) 7 supreme court cases 467. in the cited case the trial court had permitted the lawyer appointed by the complainant to act under the directions of the public prosecutor and he was also permitted to submit written argument after prosecution evidence was closed. that order of the trial court was challenged before the high court which was affirmed by the high court. the matter went up to the apex court which also affirmed that order and the counsel appointed by the private complainant was permitted to help the conducting of the prosecution under the directions of the public prosecutor. these orders were passed under sections 301 and 302 of the code of criminal procedure. during hearing, the learned counsel for the appellant led us to the provisions of sections 301 and 302 of the code of criminal procedure which reads as follows:301. 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 appeal.(2). if in 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 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. permission 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. (2). any person conducting the prosecution may do so personally or by a pleader.referring the provisions under sections 301 and 302 of the code of criminal procedure learned counsel for the appellant submitted that there is no provision enabling this court to exercise its discretion by way of directing any counsel appointed by a private person for conducting the hearing before this appellate court on behalf of the respondent-state of bihar who conducted the prosecution during trial. we have already considered the aspect of the locus standi for the purpose of considering the question of permitting the deceased's father and we have found that in view of the ratio as propounded by the apex court in the case of sheonandan paswan (supra) the capacity of the deceased's father cannot be questioned on the ground that he has no locus standi for making the prayer for appearing and arguing this appeal in the aid and in assistance of the additional public prosecutor representing the respondent-state of bihar. we also do not find any legal impediment prohibiting exercise of the discretion of this court, under the provisions of sections 301 and 302 of the code of criminal procedure in according the permission as sought by the deceased's father. therefore, we allow the prayer of the deceased's father and hereby direct that the vakalatnama filed by the deceased's father be accepted.

Judgment:

Heard.

1. The point which arises for an order of this Court is that Satish Prasad Singh, the father of the deceased, has filed a Vakalatnama of his counsel with a view to permit him to appear and plead this appeal in assistance of the respondent-State of Bihar. Practically, we did not find any obstruction in granting such permission but since such move, as made by the father of the deceased, was opposed by the counsel for the appellants and a previous order of this Court dated 22.12.2008 passed in another Cr. Appeal bearing No. 190 of 2008 did not stand in favour of the deceased's father, inasmuch as, such prayer of deceased's father was refused there on the sole ground that submissions of the counsel in that regard did not carry any weight though in that case we do not find any specific submission made by the counsel in that regard.

2. Learned Counsel for the appellant Mr. Markandeya Singh opposed the prayer of the deceased's father and he submitted that the deceased's father has no locus standi to appear before this Appellate Court and seek any permission for making submission in this appeal, either in assistance or for the aid of the Public Prosecutor who will conduct the hearing on behalf of the respondent-State of Bihar.

3. Mr. Ashwani Kumar Sinha, learned Additional Public Prosecutor has not made any objection to the prayer of the deceased's father in assisting him or making any submission in his assistance during the hearing of this appeal. The deceased's father has filed Vakalatnama for his participation in the hearing of this appeal through his counsel on the ground that the informant who was a Chowkidar had no interest in the prosecution during trial and that he being the father of the deceased is interested to see that this appeal is heard with all his assistance so that the cause of justice is not frustrated.

4. Since the order of this Court dated 22.12.2008 passed in the said Cr. Appeal No. 190 of 2008 did not stand in favour of the deceased's father and his prayer has been opposed by the appellant on the ground that deceased's father has no locus standi to appear in this case and make his submissions in the aid of the Public Prosecutor conducting this appeal for the respondent-State of Bihar, we feel to make a discussion for deciding this point.

5. For deciding the aforesaid point we would take assistance from the ratio in the case of Sheonandan Paswan v. State of Bihar and Ors. reported in : 1987CriLJ793 wherein at paragraph 14 of the decision the Apex Court held as follows:.It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay v. R.S. Nayak : 1984CriLJ647 , this Court pointed out that (SCC p. 509, para 6) 'punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi....'. This Court observed that locus standi of the complainant is a concept foreign to criminal jurisprudence. Now if any citizen can lodge a first information report or file a complaint and set the machinery of the criminal law in motion and his locus standi to do so cannot be questioned, we do not see why a citizen who finds that a prosecution for an offence against the society is being wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiator of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. If the offence for which a prosecution is being launched is an offence against the society and not merely an individual wrong, any member of the society must have locus to initiate a prosecution as also to resist withdrawal of such prosecution, if initiated.

6. Thus, in a case where a withdrawal of prosecution was sought by the State which was prosecuting the case and when a private person objected to such withdrawal which was resisted by the accused in that case the Apex Court held that every person who is entitled to set the machinery in motion for prosecution of any offence which is an offence against the society any such citizen has a locus standi to put objection to the attempt of withdrawal of the case. When in such a case when any citizen who has a right to set the law in motion for the prosecution, we feel that on the same analogy there is reason to think that the appellant has a right to oppose the prayer of the deceased's father because he had every right to set the law in motion for the prosecution of the appellant and hence, the prayer of the deceased's father cannot be objected to on the ground that he has no locus standi in this case for appearing and arguing this appeal in the assistance of the Public Prosecutor and also particularly in a situation when the Public Prosecutor has no objection to such prayer. In the fitness of things and fair dispensation of justice also we find it justified to exercise our discretion to allow the deceased's father to appear through counsel for the assistance of the Public Prosecutor.

7. Learned Counsel for the appellant cited a decision in the case of Shiv Kumar v. Hukam Chand and Anr. reported in (1999) 7 Supreme Court Cases 467. In the cited case the trial court had permitted the lawyer appointed by the complainant to act under the directions of the Public Prosecutor and he was also permitted to submit written argument after prosecution evidence was closed. That order of the trial court was challenged before the High Court which was affirmed by the High Court. The matter went up to the Apex Court which also affirmed that order and the counsel appointed by the private complainant was permitted to help the conducting of the prosecution under the directions of the Public Prosecutor. These orders were passed under Sections 301 and 302 of the Code of Criminal Procedure. During hearing, the learned Counsel for the appellant led us to the provisions of Sections 301 and 302 of the Code of Criminal Procedure which reads as follows:

301. 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 appeal.

(2). If in 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 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. Permission 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.

(2). Any person conducting the prosecution may do so personally or by a pleader.

Referring the provisions under Sections 301 and 302 of the Code of Criminal Procedure learned Counsel for the appellant submitted that there is no provision enabling this Court to exercise its discretion by way of directing any counsel appointed by a private person for conducting the hearing before this appellate court on behalf of the respondent-State of Bihar who conducted the prosecution during trial. We have already considered the aspect of the locus standi for the purpose of considering the question of permitting the deceased's father and we have found that in view of the ratio as propounded by the Apex Court in the case of Sheonandan Paswan (Supra) the capacity of the deceased's father cannot be questioned on the ground that he has no locus standi for making the prayer for appearing and arguing this appeal in the aid and in assistance of the Additional Public Prosecutor representing the respondent-State of Bihar. We also do not find any legal impediment prohibiting exercise of the discretion of this Court, under the provisions of Sections 301 and 302 of the Code of Criminal Procedure in according the permission as sought by the deceased's father. Therefore, we allow the prayer of the deceased's father and hereby direct that the Vakalatnama filed by the deceased's father be accepted.