HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 53 APPL U/S 482 No.31750/2015 Applicant :- Smt. Heerawati Opposite Party :- State of U.P. and another Counsel for Applicant :- Amit Kumar Srivastava, Ashish Kumar Gupta Counsel for Opposite Party :- Govt. Advocate, D.K. Singh, P.K. Singh, Sudist Hon'ble Pankaj Naqvi,J.
Heard Sri Amit Kumar Srivastava, learned counsel for the applicant, Sri D.K. Singh/P.K. Singh, learned counsel's for O.P. No.2 and Sri N.K.S Yadav, the learned A.G.A.
The applicant challenges an order dated 13.10.2015, passed by the Sessions Judge, Varanasi in S.T. No. 55-A/1987 (State vs. Brijesh Kumar Singh), refusing to permit the counsel for the applicant/informant to cross-examine the defence witness on juvenility.
1. Background:
An FIR came to be filed by the applicant as Case Crime No. 28/1986, under Sections 146/149/302/307/120-B IPC at P.S. Ballua, Varanasi on 9/10.4.1986 against O.P. No.2 and other accused persons, involving a murder of 7 persons belonging to the family of the applicant, i.e., of her husband, 4 children and 2 nephews. After investigation, a charge-sheet was laid against 7 accused persons including O.P. No.2. Subsequently, case was committed, charges framed against O.P. No.2 and other accused persons in S.T. No.55/87, but as O.P. No.2 remained absconding for more than 15 years, his trial, i.e., S.T. N.55A/87 was separated on 26.4.2002. The O.P. No.2 came to be arrested in 2008 in Orissa, was brought to Vararnasi where he is languishing in jail but as he was not put on trial in terms of the order dated 26.4.2002, the applicant filed Crl. Misc. Writ Petition No.1666/2015, which came to be disposed of on 14.7.2015, directing the Sessions Judge, Varanasi to ensure compliance of the order dated 26.4.2002 within a year. The O.P. No.2 was produced before the trial court and warrants under Sections 302/307/147/148/149/120-B IPC and Section 25 of the Arms Act prepared. The O.P. No.2 filed an application dated 6.8.2015 under Section 7-A of the Juvenile Justice (Care & Protection of Children) Act, 2000 (for short "the J.J. Act"), claiming juvenility on the date of occurrence, on the strength of duplicate copies of the High School mark-sheets and a tabulation register. Objections dated 12.8.2015/23.9.2015 were filed on behalf of the applicant annexing the passport, driving licence, PAN Card and the annual returns of the company of O.P. No.2, alleging his date of birth as 9.11.1964 and not 1.7.1968 as alleged in the application, including a dossier of 41 heinous cases pending against him.
2. On 13.10.2015, one Sadanand Pandey, claiming himself to be the Principal of Laxmi Shanker Inter College, Rajwadi, appeared as A.P.W.-1 in an inquiry under Section 7-A of the Act.
3. It is submitted that neither the Public Prosecutor nor the applicant had any knowledge of the summoning of any witness in an inquiry under Section 7-A of the Act. Subsequently, O.P. No.2/the accused filed an application for summoning three witnesses in support of alleged juvenility of which neither any notice was given to the Public Prosecutor or to the counsel for the applicant, even though the applicant had filed his objections/supplementary objections in response to the application, claiming juvenility on 12.8.2015/23.9.2015. After examination-in-chief of Sadanand Pandey (A.P.W.-1) on the alleged juvenility on 13.10.2015 was over, the Public Prosecutor initiated cross-examination of A.P.W.-1 and during the process, a question was put by the counsel for the applicant which was objected to by counsel for O.P. No.2 that the informant has no right to cross-examine a witness under Section 301 Cr.P.C, which objection is upheld under the order impugned.
4. It is submitted by learned counsel for the applicant that considering the strong criminal history of O.P. No.2, a hardened criminal, facing as many as 41 heinous offences as per the dossier attached, the case involved a brutal murder of seven-family-member's of the applicant; O.P. No.2 remained absconding for almost 15 years, a plea of alleged juvenility is fake and manipulative which stands negated by public documents, such as, passport, driving licence, PAN Card, etc. of O.P. No.2, the applicant, a victim and a widow had a vital stake in proceedings under Section 7-A of the Act for which cross-examination of O.P. No.2 and his witnesses by the counsel for the applicant in the court below, in view of Section 301 r/w Section 24(8) of the Code and Section 7-A of the Act, was imperative to expose a bogus plea of juvenility.
5. Learned counsel for the informant defended the impugned order on the strength of the judgment of the Apex Court in Shiv Kumar vs. Hukum Chand, 1999 (7) SCC 467 and that of this Court in Lokesh Singh and Others vs. State of U.P. and others, 2013 (83) All Cri C 379, that it is the Public Prosecutor alone who is entitled to conduct the prosecution.
However, the learned A.G.A fairly conceded that he is not in a position to defend the impugned order on available materials.
6. The issue which falls for consideration is as to whether on the facts and circumstances of the case, the applicant / informant could have any right to cross-examine the defence witnesses on the alleged juvenility of O.P. No.2 / accused.
7. A crime, save a complaint case, is committed against the state. It is thus the state which acts as a Prosecutor to bring guilty to the book. Prior to 31.12.2009, under the Code, ordinarily the victim was not given any statutory right to lead prosecution as it was expected that whatever the victim has to say, must be submitted through the Public Prosecutor. The Parliament, for the first time, by Act No. 5 of 2009, sought to recognize the right of a victim in a criminal prosecution and once such manifestation came with the insertion of Clause "wa" to Section 2 of the Code which defines victim as under:-
"victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir'.
Similarly, under the same amendment, the victim was also conferred with a statutory right to prefer an appeal under Section 372 Cr.P.C, which reads as under:
372- No appeal to lie unless otherwise provided:- No appeal shall lie from any judgment or order of a criminal court except as provided for by this Code or by any other law for the time being in force:
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court].
8. A bare reading of the proviso would indicate that the victim was given a right to prefer an appeal against an order of acquittal, conviction for lesser offences or imposing inadequate compensation which otherwise was not available prior to 31.12.2009. Similarly, a provision for victim's compensation scheme was also statutorily effected under the said amendment with the introduction of Section 357-A and 357-B of the Code. Likewise under the same amendment, a proviso was appended to Section 24(8) of the Code which reads as under:
24- Public Prosecutors:
(1)..........
(2)..........
(3)..........
(4)..........
(5)..........
(6)..........
(7)..........
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
Section 301 of the Code reads as under:
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 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.
9. A conjoint reading of the above provisions manifest that the Public Prosecutor is the overall in-charge of the prosecution of a case and the pleader so instructed would act under the directions of the Public Prosecutor and, he may with the permission of the Court, file his written arguments. The role assigned to the advocate of the victim under the proviso appended to sub-section 8 of Section 24 is to "assist" the prosecution. The word "assist" with its grammatical connotation would include all that is required to facilitate prosecution. The role of such an advocate is not to assist the "Prosecutor", but to assist the "prosecution". No doubt by assisting the prosecution in a given case, he may be indirectly assisting the Prosecutor, but that is only incidental and consequential to the main role which is to assist the prosecution.
10. Section 53 of the J.J. Act is one such manifestation, as the proviso appended thereto provides that the High Court in exercise of revisional jurisdiction shall not pass an order prejudicial to any person without giving him any reasonable opportunity of being heard.
11. Thus, if the aforesaid provisions are cumulatively examined, they nowhere seem to be denying the participation of the informant completely, rather the informant, considering the facts and circumstances of the case, can be permitted to participate and not to be a mute spectator to the ongoing trial, which obviously, considering the background and the circumstances of the case, would also include a right to cross-examine a defence witness, if any. This certainly should not be construed that the victim has an indefeasible right to cross-examine a defence witness in all circumstances. There may or may not be cases where such a right can be granted or refused depending on the facts and circumstances of each case, especially after the amendment of the Code vide Act No. 5 of 2009, participation of a victim in a criminal prosecution is not alien to law. The Court while considering the facts and circumstances of each case, would have to take a call as to how far and to what extent the said right is to be conferred upon the informant so as to ensure that under the garb of said right, it does not become an instrument of harassment of the accused or an abuse of the process of the court.
12. Distinguishing features of this case which ought to have persuaded the learned Judge to grant permission to the applicant to cross-examine the defence witnesses on the alleged juvenility are as under:
13. O.P. No.2, i.e., the accused was absconding for almost 15 years and thereafter while facing trial, raised a plea of juvenility, which was challenged by the informant as fraudulent and manipulative on the strength of passport, driving licence, PAN Card, and other credible proof of the acused to demonstrate that the alleged plea of juvenility is false and bogus. The victim is none other than the widow of the deceased who not only lost her husband in the alleged murder but also her four children and two nephews in the same occurrence. Thus, to contend that such a person should not be permitted to cross-examine a defence witness on alleged juvenility, would be against the spirit of fair trial and the legislative mandate effected by Act No.5 of 2009.
14. It is also alleged in paragraph 14 of the instant application that copy of an application filed by O.P. No.2 / accused to summon 3 witnesses in an inquiry under Section 7-A of the Act, was neither given to the Public Prosecutor nor to the counsel for the applicant in the court below, even though the applicant had filed his supplementary objections to the application filed by O.P. No.2.
15. As this application is being disposed of finally without calling for any counter affidavit, the Court cannot dwelve on this aspect, unless the facts are either admitted or controverted which they are not. It is noteworthy that no objection whatsoever has been raised by Public Prosecutor rather the objection is coming from an accused, who has no locus or right to raise the said objection.
16. The Court has perused the judgment in the case of Lokesh Singh (supra) wherein it has been held that after insertion of proviso to Section 24(8) of the Code, if the Court permits the victim to engage an advocate of choice, the Court cannot deprive the advocate to address the Court in addition to his right to file the written arguments as contained in Section 301 of the Code. Advancement of oral arguments will not cause any prejudice to the accused. On the same analogy, it can be said that if the informant, on the facts and circumstances of the case, makes out a case for cross-examination of the defence witness, then the court must consider the request objectively instead of shutting the doors only on the ground that cross-examination can be conducted by a Public Prosecutor. Thus, the decision in Lokesh Singh (supra) lends support to the contention of the applicant. The decision in Shiv Kumar (supra) is distinguishable on the ground that it is prior to the amendment effected in the Code vide Act No. 5 of 2009 and also on the ground that there were no special features as in the instant case, which ought to have persuaded the court below to permit the counsel for the applicant to cross-examine the defence witness. Learned counsel for O.P. No.2/accused could not demonstrate as to how and in what manner would the accused be prejudiced if his witnesses are cross-examined by the counsel for the informant.
17. In view of the aforesaid discussion, the order dated 13.10.2015, passed by the Sessions Judge, Varanasi in S.T. No. 55-A/1987 (State vs. Brijesh Kumar Singh), cannot be sustained and is liable to be set aside.
18. The application is allowed. The order dated 13.10.2015 is set aside. Consequently, the learned court below shall permit the counsel for the applicant to cross-examine the defence witnesses.
19. However, considering the facts and circumstances of the case, it is provided that the pending trial shall be concluded to its logical conclusion, as expeditiously as possible, preferably within 6 months, on a day-to-day basis.
Compliance report be placed in the Chambers on 30.7.2016 at 4.00 PM.
Order Date:- 18.11.2015
Chandra (Pankaj Naqvi,J)