Bombay High Court
Gajanan Babanrao Jadhav vs The State Of Maharashtra on 11 December, 2013
Bench: T.V. Nalawade
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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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(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.
Cri. Appln No. 4820/13
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
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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,
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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 :-
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"(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
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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
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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
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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
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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
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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
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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
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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) ...........
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(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
Cri. Appln No. 4820/13
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
Cri. Appln No. 4820/13
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
Cri. Appln No. 4820/13
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.
Cri. Appln No. 4820/13
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.
Cri. Appln No. 4820/13
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
Cri. Appln No. 4820/13
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/
