Nemi Chand Vs. State of Rajasthan and ors. - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 3 as public prosecutor does not suffer from any infirmity of illegality as it is very well established that an advocate should not appear for two parties whose interests are adverse to each other as that would prejudice their cause.misra, j.1. the petitioner is an accused in a case registered under section 302 ipc alongwith some other sections which is pending for trial. it is his grievance that respondent no. 3 mani ram sharma had appeared as an advocate on behalf of the informant/complainant-party against him and hence he should not have been appointed as a public prosecutor to conduct the trial. it has further been stated that at some point of time his appointment as a public prosecutor had been cancelled and thereafter he has been re-appointed as a public prosecutor in the same case. according to the accused-petitioner this action of the state is illegal and the respondent no. 3 should not be allowed to conduct the trial on behalf of the state.(2). mr. jain has vehemently argued on behalf of the petitioner that respondent no. 3 the public prosecutor would not be acting fairly in the trial of the case pending against the petitioner and he has also relied upon certain authorities in order to emphasises that a public prosecutor is expected to be fair not only to the court and the complainant, but he should also be fair to the accused.(3). in my opinion the appointment of respondent no. 3 as public prosecutor does not suffer from any infirmity of illegality as it is very well established that an advocate should not appear for two parties whose interests are adverse to each other as that would prejudice their cause. while there can be no quarrel about the proposition that a public prosecutor should act fairly not merely to the court and the complainant, but also to the accused, it is difficult to infer that merely because the respondent no. 3 might have appeared for the complainant at some point of time and has thereafter been appointed as public prosecutor, he would not act fairly. acting as a public prosecutor and having acted earlier as a complainant's lawyer would not give rise to a cause which would result in prejudicing the cause of the accused because the complainant's advocate and the public prosecutor would both be acting in the same direction which is to prove the charge levelled against the accused.(4). i find no substance in the argument that merely because the respondent no. 3 had acted as a complainant's lawyer at some point of time he cannot act fairly as a public prosecutor during the trial of the case pending against the accused-petitioner. it is obvious that the interest of the complainant and the prosecution is not adverse to each other and hence i find no merit in this writ petition. accordingly, it stands dismissed.