Cri. Appln No. 4820/13
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4820 OF 2013
IN
CRIMINAL APPLICATION NO. 4556 OF 2013
Gajanan Babanrao Jadhav,
Age 30 years, Occu. Sarpanch & Agri.,
R/o. Nalni (Bk), Tal. Bhokardan,
Dist. Jalna. ....Applicant.
Versus
1. The State of Maharashtra
Through Police Inspector,
Bhokardan Police Station,
Dist. Jalna.
2. Satyanarayan Shriram Lohiya,
Age 73 years, Occu. Agri.,
3. Jayprkash Satyanarayan Lohiya,
Age 40 years, Occu. Service,
4. Vijayprakash Satyanarayan Lohiya,
Age 37 years, Occu. Business,
All R/o. Nalni (Bk), Tal. Bhokardan,
Dist. Jalna. ....Respondents.
Mr. Jiwan J. Patil, Advocate for applicant.
Mrs. V.A. Shinde, APP for State.
Mr. S.J. Salunke, Advocate for respondent Nos. 2 to 4.
Mr. V.J. Dixit, Senior Counsel, Mr. N.B. Suryawanshi & Mr. V.D.
Sapkal, Advocates, appointed by Court as Amicus Curie.
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Cri. Appln No. 4820/13
2
CORAM : T. V. NALAWADE, J.
DATE : 11th December, 2013.
ORDER :
1. The application is filed for permission to intervene in the proceeding filed for relief of anticipatory bail. The learned counsel Shri. Jeevan Patil appointed by the original complainant wants to even address the Court to oppose the application. This Court had expressed that he can assist the learned A.P.P. and he can file documents and written arguments.
2. This Court, the undersigned, has held in Criminal Application No. 2458/2011 (from Aurangabad Bench) [Annasaheb Vs. Dr. Patil] that such counsel cannot be allowed to address the Court and at the most, he can assist the learned Public Prosecutor/Assistant Public Prosecutor appointed by the State and who is incharge of the case. It is also held by this Court that the original complainant can file written arguments and this is possible both in a proceeding filed for bail and anticipatory bail.
In the case reported as 2009 ALL M.R. 687 (Vinay Poddar Vs. State) one Hon'ble Judge of this Court has held that in a proceeding filed for relief of anticipatory bail, the victim/original complainant has right to intervene, right to address the Court to oppose the application. However, in this reported case, the ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 3 Hon'ble Single Judge has observed that the position of victim in a proceeding filed for relief of bail will be different and in that case, he may not be allowed to intervene.
3. In the past, in another case reported as 2007 (1) Crimes 222 (Ravindra Vs. State) another Hon'ble Single Judge of this Court had observed that the intervention needs to be allowed and that can be done even in application filed for relief of bail. In the case reported as 2013 ALL M.R. (Cri.) 861 [Kashinath Jairam Shetye Vs. Ramakant Mahadev Sawant & Ors.] the Division Bench of Panji Bench of this Court has referred Poddar's case cited supra. The Division Bench was considering the application filed for cancellation of anticipatory bail. The Division Bench has made following observations :-
"21. In the course of hearing, Mr. Pangam submitted that at times the disposal of anticipatory bail applications are delayed on account of prolix and/or irrelevant lengthy submissions made by the first informant/complainant appearing in person who is not well versed with the legal provisions, which also ultimately delay disposal of such applications. In our view, although the complainant/first informant is entitled to be ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 4 heard in an anticipatory bail application filed by the accused his rights are not unfettered and cannot be construed as giving him liberty to make submissions for any length of time. In our view, the interest of justice would be served if the complainant/first informant is called upon to file his say, in writing containing facts and legal submissions pointing out as to why the anticipatory bail should not be granted to the accused. If such a course is adopted, the same would save valuable time of the Court. No doubt, the complainant/first informant is entitled to make oral submissions, but in the event the complainant/first informant files his say pointing out the material available with him against the accused/the applicant seeking relief, the Sessions Judge would be in a position to restrict the oral hearing to be given to the applicant/intervenor, having regard to the material placed by the investigating agency against the accused. Moreover, the accused would also be in a position to meet the case set up by the complainant/first informant.
Therefore, although we are in respectful agreement with the view taken by the learned Single Judge in the case of Vinay Poddar (supra), that the complainant/first informant is entitled to be heard in an application for anticipatory bail filed by the accused, the same has to be understood in the light of the ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 5 observations made above, so that the disposal of the anticipatory bail application is not delayed, thereby causing no prejudice either to the applicant or to the investigating agency. "
4. In Criminal Application No. 2458/2011 cited supra, this Court has held that in view of wordings of section 439 (2) and 437 (5) of Cr.P.C., the victim/complainant can file application for cancellation of order of bail or anticipatory bail granted by Sessions Court. Though Hon'ble Division Bench of this Court was deciding the application filed for cancellation of anticipatory bail, the aforesaid reported cases show that there are two different views on the point of right of victim/complainant to intervene, address the Court in a matter filed for relief of bail and anticipatory bail. In view of this position, this Court requested all the counsels appearing in this Court to make submissions on aforesaid point. No case of Hon'ble Apex Court squarely on the point involved is brought to the notice of this Court. In this matter, the learned Senior Counsel Shri. Dixit, learned counsels Shri. Sapkal, Shri. Suryawanshi and others assisted the Court. The learned counsel appointed by the complainant was given exhaustive hearing. Mrs. V. A. Shinde, learned Additional Public Prosecutor representating State, assisted the Court. Some points were framed. However, only one point needs to be referred as ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 6 other points are part of main point.
5. The learned Senior Counsel and the learned counsels, who assisted the Court made submissions that if this Court has formed different view, than the view taken in the aforesaid two cases cited supra like Poddar's case and Ravindra's case, in view of the provisions of Rule 7 of Chapter I of High Court Appellate Sides Rules, this Court presided over by Single Judge can make request to Hon'ble Chief Justice of Bombay High Court to refer the matter to larger bench. Rule 7 is as under :-
" 7. Reference to two or more Judges - If it shall appear to any Judge, either on the application of a party or otherwise, that an appeal or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice who shall make such order thereon as he shall think fit."
6. In Criminal Application No. 2458/2011 the undersigned has given some reasons for not allowing the complainant/victim to address the Court and conduct a matter.
Some of the reasons/propositions for the same can be stated as follows :-
(i) The criminal law, even the procedural law, giving the ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 7 rights to the accused needs strict interpretation so that rights given for compliance of Article 21 of Constitution of India are effectively protected (the case law in this regard is discussed in Criminal Application No. 2458/2011).
(ii) The rights of victim/complainant get automatically protected in such a proceeding as interest of society are to be protected not only by the Court, but by the prosecuting agency and investigating agency, who are involved in criminal justice system [referred the case reported as AIR 1966 SUPREME COURT 911 [Tukaram Vs. State of Bihar].)
(iii) When on a point Cr.P.C. is exhaustive, no Court is permitted to invoke extraordinary powers like inherent powers given under section 482 of Cr.P.C. as that will be defeating the provisions of Cr.P.C. and the scheme prepared by legislature.
(iv) In criminal matters, it is the State, which is expected to take care of public interest. If some restricted rights are given to individuals like complainant/victim, it needs to be presumed that only limited right, power of the State is ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 8 delegated to private individual. In criminal justice system such rights in favour of private individual can come only from the State/Crown/Legislature and Courts cannot confer such rights.
(v) If there are no provisions on a point in legislation and the Court thinks it necessary to fill the vacuum, the provision to be made by the Court must be in public interest and not in the interest of one individual and provision must be such that it is practical to enforce it. The provision proposed by the Court/made by the Court must strike balance between the interest of accused and public interest.
(vi) A decision/proposition ought to be overruled in relation to important issue or principle, if it is not just or it is not keeping with policy of legislature or contemporary social conditions.
(vii) In view of nature of jurisdiction of Hon'ble Apex Court under Article 136 of Constitution of India, even when there is no provision in Cr.P.C. on a particular point like filing of appeal to Supreme Court, it has no relevance to the question of powers of Supreme Court under Article 136. The ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 9 appellate powers of the Hon'ble Apex Court under this Article are not to be confused with ordinary appellate powers exercised by other appellate Courts even High Court as those powers are under the procedural code like Cr.P.C.
or special statutes. The High Court has the power under section 482 of Cr.P.C., but that power is also of limited nature and the limits are mentioned in section 482 of Cr.P.C.
When the power under section 482 of Cr.P.C. is a statutory power, the power of Hon'ble Apex Court under Article 136 is constitutional power and so, they can never be equated.
Even Hon'ble Apex Court invokes the power under Article 136 only in exceptional circumstances. (referred the cases reported as 1990 CRI.L.J. 2184 DELHI HIGH COURT [Praveen Malhotra Vs. State] and 1979 SCC (Cri) 454 [Arunachaam Vs. State]).
(viii) Kerala High Court, Punjab and Haryana High Court, Madras High Court, Delhi High Court and Gujrat High Court have held that there is no right to private party/complainant to intervene in such a proceeding and they can only assist Prosecutor appointed by the State. Most of these High Courts have discussed the relevant provisions. As provisions are discussed by the other High Courts, they need to be ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 10 considered while deciding the point by this Court. (The reported cases and unreported cases are 1984 Cri.L.J. 499 [Babu Vs. State], 1980 Cri.L.J. 1159 [Kuldipsingh Vs. State of Haryana], 1986 Cri.L.J. 1540 [Saravanabhavan and Anr. Vs. S. Murugaiyyan], 1990 Cri.L.J. 2184 [Praveen Malhotra Vs. State], 1991 Cri.L.J. 1774 [Indu Bala Vs. Delhi Admn.] and one unreported order of Gujrat High Court in Cri. Revn.
Appln. No. 543/2011 dated 26.12.2011
7. In view of the propositions mentioned above, it becomes necessary first to find out as to whether there are provisions on the aforesaid point in Cr.P.C. The main provisions regarding the rights given to private party/complainant are sections 24, 301 and 302 of Cr.P.C. This Court is quoting the relevant portions of these provisions :-
"24. Public Prosecutors.- (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) ................
(4) The District Magistrate shall, in
consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 11 opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
(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.
Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.
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.
::: Downloaded on - 23/12/2013 20:34:25 :::Cri. Appln No. 4820/13 12 (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.
::: Downloaded on - 23/12/2013 20:34:25 :::Cri. Appln No. 4820/13 13 2 (u) "Public Prosecutor" means any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor; "
8. Sections 301 and 302 of Cr.P.C. are part of Chapter XXIV which make general provisions as to the inquiries and trials.
In sections 301 and 302, it is mentioned that when the prosecutor appointed by the State is incharge of the matter, he shall conduct the prosecution. Any Magistrate may permit prosecution to be conducted by any person mentioned in section 302. Thus, no right as such is given to private party/complainant to conduct prosecution when the State wants to prosecute or defend the matter. In this regard, section 210 of Cr.P.C. needs to be kept in kind which runs as follows :-
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.- (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject- matter of the inquiry or trial held by him, the ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 14 Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code. "
9. It is provided that the counsel instructed by private person shall act under the directions of public prosecutor appointed by the State and the Court may permit the victim/private party to engage an advocate of his choice to assist the Public Prosecutor. Thus, even when the permission is granted, ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 15 the Court is expected to give reasons for the same. These provisions show that the private person may with the permission of the Court submit the written argument after the evidence is closed in the case. (underline added).
10. In section 24 (1) of Cr.P.C., it is mentioned that public prosecutor can be appointed by State for conducting in such Court any prosecution, appeal or other proceedings on behalf of State.
In section 301, it is mentioned that the public prosecutor incharge of a case may appear and plead before any Court in which that case is under inquiry, trial or appeal. The underlined words of these provisions show that Public Prosecutor can be appointed for a State in any criminal Court and for all kinds of proceedings. In section 24 (1) the word 'other proceedings' is used and section 301, the term 'inquiry' is used. These words/terms show that nothing is left out.
11. In the Code of 1872, there were separate definitions of terms like 'inquiry' and 'trial', but in the Code of 1882 and Code of 1973, the definition of only 'inquiry' is given. The definition of separate term 'trial' is omitted. The definition of 'inquiry' is given in section 2 (g) of Cr.P.C. which runs as under :-
::: Downloaded on - 23/12/2013 20:34:25 :::Cri. Appln No. 4820/13 16 "(g) "inquiry" means every inquiry, other than trial conducted under this Code by a Magistrate or Court;"
12. In warrant case, trial starts with framing of charge.
'Inquiry" has wide connotation and it includes every inquiry other than trial. (referred the cases reported as AIR 1979 SUPREME COURT 94 [Ratilal Vs. State] and 1987 CRI.L.J. 1061 SUPREME COURT [Mohanlal Vs. State])
13. In a crime, the accused comes before the Court under section 436, 437 and 438 of Cr.P.C. and he is brought before the Court for remand purpose under section 167 of Cr.P.C. We are concerned with sections 167, 437, 438 and 439 of Cr.P.C. Section 167 falls under Chapter XII which gives power to police to investigate the crime. As the use of power by Court under section 438 of Cr.P.C. is likely to interfere in the statutory powers/duties of police to investigate, this possibility is required to be considered by the Court while considering the application filed for relief of anticipatory bail. The Court is further required to consider, whether it is a fit case to grant bail as after grant of relief of anticipatory bail, no new application is required to be filed either under section 437 or under section 439 of Cr.P.C. After the arrest, as per the order made in anticipatory bail application, if the ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 17 accused gives surety, the arresting agency is bound to release him after taking the bonds. Thus, section 167 needs to be considered by the Courts when the Courts are deciding the applications filed under section 437, 438 and 439 of Cr.P.C. From this angle and as it is a part of proceeding filed in the some crime, such proceeding falls under 'inquiry'. It needs to be kept in mind that the terms 'inquiry' and 'trial' need to be used with regard to particular context in view of interpretation done by Hon'ble Apex Court.
14. The term 'judicial proceeding' is defined in section 2
(i) of Cr.P.C. which runs as under :-
"(i) "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath ;
The proceedings filed under sections 437, 438 and 439 of Cr.P.C.
are judicial proceedings. It is already observed that in section 24 (1) of Cr.P.C., the term 'other proceedings' is used and so when the State takes over the matter, the limitation mentioned on the rights of private party become applicable to the proceedings filed under section 437, 438 and 439 of Cr.P.C.
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15. Sections 24 and 25 of Cr.P.C. show that for conducting the cases for the State in High Court, Sessions Court and the Court of Magistrate, the State is required to appoint Public Prosecutor/Additional Public Prosecutor and Assistant Public Prosecutor. If a party wants appointment of Special Prosecutor, for that, procedure already quoted is provided. If the private party wants to appoint counsel, the counsel can be allowed only to assist the Public Prosecutor or Assistant Public Prosecutor appointed by the State for the matter.
16. The 4th proviso of section 437 of Cr.P.C. runs as under :-
"Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-
section without giving an opportunity of hearing to the Public Prosecutor."
The provision of section 438 (1A) runs as under :-
"(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days, notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 19 Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court."
The proviso of section 439 of Cr.P.C. runs as under :-
"Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. "
Thus, the law provides for issuing notice to Public Prosecutor in the proceedings filed for relief of bail and anticipatory bail. The Court is expected to give hearing to Public Prosecutor in such proceedings. No scope is left to private party or his counsel to intervene in such a proceeding and so, if they want to assist the Court, they can do it only through the Public Prosecutor appointed by the State.
17. The provision of section 209 (d) runs as under :-
"209.Commitment of case to Court of ::: Downloaded on - 23/12/2013 20:34:25 ::: Cri. Appln No. 4820/13 20 Session when offence is triable exclusively by it.- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall- [(a)...............
(d) notify the Public Prosecutor of the
commitment of the case to the Court of
Session. "
Section 225 of Cr.P.C. runs as under :-
"225. Trial to be conducted by Public
Prosecutor.- In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. "
These provisions show that no scope to conduct prosecution of a case triable by Sessions Court is given to private counsel or his counsel. (referred case reported as 1999 (7) SCC 467 [Shivkumar Vs. Hukumchand]).
18. The aforesaid provisions also show that before appointment of Public Prosecutor, Additional Public Prosecutor or Assistant Public Prosecutor, scrutiny is expected by the authority and after the scrutiny, panel of counsels, who can be appointed as ::: Downloaded on - 23/12/2013 20:34:26 ::: Cri. Appln No. 4820/13 21 Prosecutors for the State is required to be prepared. Minimum experience which a counsel needs to have for getting his name entered in the panel is also mentioned in the provision. These provisions cannot be given go-bye. If other person is allowed to conduct the prosecution on behalf of State, it will be giving go-bye to these provisions. Only exception is made and that can be found in section 302 of Cr.P.C. already quoted and for that also, the Court of Magistrate is expected to give reasons.
19. The role of Special Prosecutor/Public Prosecutor is to safeguard interest of both, complainant and accused. He represents both the State and the complainant. In discharged of duties, he is bound by law and professional ethics. He is officer of the Court and he is expected to employ only such means as are fair and legitimate. He is expected to apply mind independently.
Such fairness cannot be expected from the counsel appointed by the private party. (referred case reported as AIR 1957 SUPREME COURT 389 [State of Bihar Vs. Ram Pandey] and 1988 (1) Bom.C.R. 77 [Vijay Vs. State of Maharashtra].)
20. Criminal law is not to be used as an instrument of wrecking private vengeance by aggrieved party against a person who, according to private party, had caused injury to him. Barring ::: Downloaded on - 23/12/2013 20:34:26 ::: Cri. Appln No. 4820/13 22 few exceptions in criminal matters, the party who is treated as aggrieved, is the State, which is the custodian of social interests of community at large. From this angle also, no intervention is allowed. (referred the case reported as AIR 1966 SUPREME COURT 911 (Tukaram Vs. State of Bihar].)
21. The investigating agency is expected to be fair to both accused and complainant and it is the duty of the investigating agency to find out the truth. It has statutory duty/power to investigate. Even the Courts are not expected to interfere in these statutory powers. The Court is expected to presume that the investigating agency is acting fairly. Allowing intervention is one way allowing influencing investigating agency by private party/complainant. From this angle also, intervention cannot be allowed. (referred the provisions of sections 41, 156, 157 and 167 of Cr.P.C. and the cases reported as AIR 1993 SUPREME COURT 44 [State Vs. S.N. Bhaskaran) and (2000) 12 SCC 421 [Sasi Thomas Vs. State].)
22. There are stages like section 159, 169 or 170 of Cr.P.C.
when the Court can take action and give directions to investigating agency for making investigation. So there are safeguards. The Court can take care of interests of private party ::: Downloaded on - 23/12/2013 20:34:26 ::: Cri. Appln No. 4820/13 23 and also public interest. Even after filing of the chargesheet, the investigation is possible in view of the provision of section 173 (8) of Cr.P.C. The Court can use powers given under section 311 and 319 of Cr.P.C. The Court safeguards interest of both accused and complainant. The Court is not silent spectator and it is expected from Court to actively participate in the proceeding. Thus, the fear about not brining relevant material on record by the investigating agency is unfounded. The Court is expected to act even at the stage of investigation as already observed. But, for that the stages mentioned in Cr.P.C. need to be reached. If the Court does not adhere to the procedure, the possibility of interfering in statutory powers of investigating agency is created.
23. So far as the other rights given to private party/complainant in Cr.P.C. are concerned, they can be found in sections 157 (1), (2) and section 173 (2) (ii) of Cr.P.C. They run as under :-
"157. Procedure for investigation.-
(1)..............
Provided that-
(a) when information as to the commission of
any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate ::: Downloaded on - 23/12/2013 20:34:26 ::: Cri. Appln No. 4820/13 24 officer to make an investigation on the spot ;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case :
(2) In each of the cases mentioned in clauses
(a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated. (underline added).
"173. Report of police officer on completion of investigation.- (1)...........
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) ........... ::: Downloaded on - 23/12/2013 20:34:26 ::: Cri. Appln No. 4820/13 25
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. "
The aforesaid provisions show that the aggrieved party, complainant gets information as a matter of right when the investigating agency takes a decision not to proceed further. If the private party is aggrieved due to inaction or unfairness on the part of investigating agency, the party can use the recourses like filing complaint and requesting the Magistrate to use the powers given under section 156 (3) or section 202 of Cr.P.C. It is open to the private party to produce the relevant material before J.M.F.C., independently and can make out case, for taking cognizance of the offence, for issuing process and for trial of the offender.
24. There are landmark cases of Hon'ble Apex Court on the rights of aggrieved person. In the case reported as 2001 Cri.L.J. 1264 [J.K. international Vs. State], the Apex Court has discussed the provisions of sections 301, 302 and 325 of Cr.P.C.
These provisions are discussed in relation to the rights of private party when final report of police is submitted and it is to the effect ::: Downloaded on - 23/12/2013 20:34:26 ::: Cri. Appln No. 4820/13 26 that the investigating agency is not filing report under section 170 of Cr.P.C. and the chargesheet. The Apex Court has observed that in such cases, the private party needs to be heard. Similar right is given to the private party when proceeding is filed by the accused for quashing of criminal case or F.I.R./complaint. In the case reported as (1991) 4 Supreme Court Cases 584 [Union Carbide Corporation and Ors. Vs. Union of India and others] the Bench of five Judges of the Apex Court has observed that when the offence is committed against the society and it is not individual wrong, any member of the society must have locus standi to initiate prosecution, as also to resist the withdrawal of such prosecution if initiated.
25. The aforesaid provisions and the observations made by the Apex Court show that the private party's right to know the result of investigation is recognized. The private party has right to initiate proceeding and also act when the investigating agency does not take action against the accused due to aforesaid provisions. The provisions giving power to Court viz. sections 159, 169, 170, 311, 319 and 321 of Cr.P.C. make it possible to protect the interest of public including a private party. These provisions cannot be mixed with the provisions regarding the right given to private party to conduct any prosecution, appeal or other ::: Downloaded on - 23/12/2013 20:34:26 ::: Cri. Appln No. 4820/13 27 proceedings. The two sets of provisions are in different context and for different purposes.
26. The provisions of section 437 (5) and 439 (2) of Cr.P.C.
run as under :-
"437. (5) Any Court which has released a person on bail under sub- section (1) or sub-
section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
439. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. "
The wordings of these two sections show that there is power to the Court to cancel the order of bail or anticipatory bail made by the subordinate Court and also the same Court can cancel the order of bail, if the breach of conditions etc. is brought to the notice of the Court. In view of the object behind the aforesaid two provisions, any person including complainant can request to the Court for taking action in the interest of justice like cancelling the relief granted in favour of the accused. The cases like (2000) 2 SCC 391 [R. Rathinam Vs. State] and 2001 SUPREME ::: Downloaded on - 23/12/2013 20:34:26 ::: Cri. Appln No. 4820/13 28 COURT 2023 (1) [Pooran Vs. Rambilas and Another] can be referred on this point. It is needless to refer the cases in which law is laid down that the criteria for granting, refusing and cancelling bail are different. Thus, the law developed on section 437 (5) and 439 (2) of Cr.P.C. also cannot be mixed with the points involved in the present proceedings.
27. In Criminal Application No. 2458/2011 decided by the undersigned, this Court has discussed the rights of accused and the provisions made to comply Article 21 of Constitution of India.
Intervenors may be many in most of the cases and so the disposal of the proceeding filed for bail or anticipatory bail will be unnecessarily delayed due to intervenors. If the aforesaid provisions are interpreted to hold that private party has right to intervene, such interpretation will be against the spirit of Article 21 of Constitution of India. The proposition that first, interim relief can be given and the intervenors can be given hearing is also not acceptable. In many cases, the evidence gets destroyed or is destroyed due to delay. Thus, by making such orders, the Court is likely to help the accused and interfere in the statutory power of police to investigate. It is needless to say that the interrogation of a person, who has protection of relief of anticipatory bail, even of interim nature, is never effective.
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28. The aforesaid discussion shows that there are provisions in Cr.P.C. on the points involved in the present matter.
The provisions are made to give statutory power to the investigating agency. Peculiar role is given to Public Prosecutor.
The Court is given power to protect the interests of all. For protecting the rights of accused, provisions are made and scheme is prepared. The rights of private party are mentioned with limits thereon. In view of aforesaid provisions and other provisions, it needs to be presumed that the scheme is exhaustive and there is no scope for use of section 482 of Cr.P.C. The aforesaid provisions show that legislature has stuck balance between public interest and private interest and the interest of private party like the complainant are included in public interest.
28. There are different propositions made by different Hon'ble Judges of this Court on the rights of private party to intervene in proceeding filed for bail and anticipatory bail. For the reasons already given in Criminal Application No. 2458/2011 and aforesaid reasons, this Court is of the view that the matter needs to be decided by larger bench, preferably consisting of three Hon'ble Judges of this Court. In the case reported as AIR 2005 SUPREME COURT 752 (Central Board of Dawoodi Bohra Vs. ::: Downloaded on - 23/12/2013 20:34:26 ::: Cri. Appln No. 4820/13 30 State] and 2010 AIR (SCW) 7191 [Sandeep Vs. State of Uttaranchal], the Hon'ble Apex Court has given procedure, which is required to be followed by Single Judge, when such a situation arises. This Court is following the said procedure. Rule 7 of Chapter I of Bombay Appellate Side Rules is already quoted by this Court. In the case reported as 1999 ALL MR (Cri) 1939 (Aurangabad Bench of Bombay High Court) [Shaikh Baboo Vs. Sayeda Begum], Rule 7 is discussed and the procedure which needs to be followed is also mentioned.
30. For the reasons already given, this Court has decided to request the Hon'ble Chief Justice of Bombay High Court to refer the matter to larger bench, preferably consisting of three Hon'ble Judges of this Court. In the result, following order is made ;
ORDER (1) Registry is hereby directed to place the matter before the Hon'ble Chief Justice of Bombay High Court with a request made by this Court to decide, whether following points need to be referred to the larger bench.
"(i) Whether private party/complainant can be allowed to intervene/address in bail/anticipatory bail ::: Downloaded on - 23/12/2013 20:34:26 ::: Cri. Appln No. 4820/13 31 proceeding in which the State has given charge of matter to Public Prosecutor/Additional Public Prosecutor/Special Public Prosecutor.
(ii) Whether such permission in bail application can be given when the matter is taken over by the State and Assistant Public Prosecutor is representating the State in the Court of Magistrate.
[ T. V. NALAWADE, J. ] ssc/ ::: Downloaded on - 23/12/2013 20:34:26 :::