Praveen Malhotra vs State
1990 Latest Caselaw 91 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) The petitioner, his father, mother and sister arc being prosecuted for offences under sections 498A/302/201/120B IPC. The wife of the petitioner succumbed to burn injuries on April 28, 1989. The father and the mother of the petitioner have been released on bail pursuant to orders 'made by Duggal J. on October 4, 1989 in Cr. M. (M) 1368/89. The sister of the petitioner was enlarged on bail pursuant to the orders of Additional Sessions Judge made on 17th October 1989. The bail application of the petitioner was, however, rejected by the Additional Sessions Judge on 4th January 1990. Therefore, the petitioner filed Cr. M. (Main) 161/90 seeking bail. The application of the petitioner came up for hearing on 25th January 1990 when notice was directed to be issued to the State for 8th February 1990. On 8th February 1990, it was directed that the record of the trial court be summoned and the case was adjourned to today.

(2) The present application (Cr. Misc. 309/90) we failed on February 19, 1990 by Sh. Darsban Singh Chhabra father of the deceased Smt. Shalini. Mahila Daksbata Samaj, Shakti Shalini, Saheli. Joint Women's Programme, National Federation of Indian Women and Janwadi Mahila Samiti seeking permission to intervene in the aforesaid Criminal Misc. (Main) 161/90 and make oral arguments in opposition to the application for grant of bail filed by the petitioner. The father of the deceased and the six women organisations referred to above are joint applicants of Cr. Misc. 309/90. The application is being seriously opposed on behalf of the petitioners as also the State.

(3) The question for determination is whether applicants have a right to intervene and be heard in opposition to the bail application.

(4) Ms. Rani Jethmalani, learned counsel for the applicants, in support of the application relies on two decisions of the Supreme Court. The first decision relied on is Arunachaiam Psr Sadhanantham and another, 1979 Scc (Criminal) 454. In the cited case the Supreme Court was considering the nature and scope of jurisdiction under Article 136 of the Constitution of India. The Supreme Court held :- "The Supreme Court under Article 136 can entertain appeals against judgments of acquittal by the High Court at the instance of private parties also. Article 136 of the Constitution neither confers on any one the right to invoke the jurisdiction of the Supreme Court nor inhibits anyone from invoking the Coun's jurisdiction. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice, the Supreme Court cannot refrain from doing its duty and abstain from interfering on the ground that a private party and not the State has invoked the Court's jurisdiction."

Ms. Jethmalani submits that in view of the pronouncement of the Supreme Court, the applicants have a right in law to intervene and make submissions in reply to the bail application. The Supreme Court has also expressed the opinion that the circumstance that the Criminal Procedure Code does not provide for an appeal to the High Court against an order of acquittal by a subordinate court at the instance of a private party, has no relevance to the question of the powers of Supreme Court under Article 136. Arunachaiam the brother of the deceased bad filed the appeal, before Supreme Court against the judgment of High Court whereby all the accused had been acquitted. The State did not file any appeal. The Supreme Court said that appellate powers vested in Supreme Court under Article 136 is not to be confused with ordinary appellate powers exercised by appellate courts and Appellate Tribunals under specific Statutes. The Supreme Court opined that the appellate power under Article 136 is plenary and the Supreme Court has itself set the limits by permitting invocation of this power in very exceptional circumstances. The observations made by the Supreme Court while considering the nature and scope of power under Article 136, cannot be used in support of the contention that a private person can approach High Court under Section 482 of the Criminal Procedure Code and seek intervention in the bail application filed by the accused under Section 439 of the Code. The observations of the Supreme Court are to be understood in the context in which they are made. The powers of this Court, in these proceedings, are circumscribed by the statutory provisions of Code of Criminal Procedure.

(5) The second decision relied on by learned counsel for the petitioner is of the Constitution Bench of the Supreme Court in P.S R. Sadhantham v. Arunachalam and mother, reported in 1980 Scc (Criminal) 649. In a way this case arose out of Arunachalam's case (supra). The result of allowing Arnnach lam's appeal was that Sadhanantham was convicted and sentenced to undergo life imprisonment. Sadbanantham filed a petition before Supreme Court under Article 32 of the Constitution. Justice Krishna lyer speaking for himself. Justice Fazal Ali and Justice D.A. Desai while examining the scope of Article 136 vis-a-vis Article 21, said :- "ARTICLE 21, in its sublime brevity, guardians human liberty by insisting on the prescription of procedure established by law, not fiat as sine qua non for deprivation of personal freedom. And those procedures so established must be fair, not fanciful, nor formal nor flimsy, as laid down in Maneka Gandhi case. So, it is axiomatic that our constitutional jurisprudence mandates the State not to deprive a person of his personal liberty without adherence to fair procedure laid down by law. The question is whether there is any procedure, fair or otherwise, which enables a kindly, neighbour who is not a complainant or first informant, to appeal to the Supreme Court against an allegedly erroneous acquittal by the High Court The corpus Jurisdiction contains no black-letter law arming any such purely compassionate soul to approach this Court, argues Sri Mridul, and so, his client's liberty have been deprived by a proceeding initiated by someone without any procedure established by law. We see the dexterity in the advocacy but reject its efficacy. Nor are we impressed with the submission that the brother of the deceased in the case, or any other high minded citizen is an officious meddler who has no business nor grievance when the commission of grievous crime is going unpunished. There is a spiritual sensitivity for our criminal justice system which approves of the view that a wrong done to anyone is a wrong done to oneself, although for pragmatic considerations the law leashes the right to initiate proceedings in some situations. Again, justice is functionally outraged not only when an innocent person is punished but also when a guilty criminal gets away with it stultifying the legal system. The deep concern of the law is to track down, try and punish the culprit, and if found not guilty, to acquit the accused."

 Learned Judge further said :-    "We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article 136 is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the writ petitioner and dismiss the petition."  

 (6) Drawing support From the aforequoted passages, learned counsel contended that it is the duty of the Court to see that a guilty criminal does not get the bail and the petitioner and the respondent should not be permitted to defeat the prayer made in the application by raising the bogey that the applicants are busy bodies.  

 (7) The aforesaid observations, again, were made in relation to powers of Supreme Court under Article 136. In any case, at this stage, this Court has not to consider the question of conviction or acquittal of the petitioner.  

(8) For the present the question to be considered is about the right of a complainant or a third party to intervene at the stage of consideration of the application of bail of one of the accused in the case. The powers of the High Court to grant bail to the accused are prescribed under Section 439 of the Code. The inherent powers of the High Court under Section 482 of the Code arc circumscribed by the limitations provided in the section itself. The inherent powers can be exercised to (1) give effect to any order made under the Code; (2) or to prevent abuse of the process of any court; (3) or otherwise to secure the ends of justice. The High Court has to exercise powers within the limitations provided in the Code of Criminal Procedure.

(9) The question whether a third party or a complainant has a right to be heard or not at the stage of hearing of bail application of the accused, came up for consideration recently before a learned Single Judge of this Court in Indu Bala and others, v. Delhi Administration, Cr. M.(M) 1143/89 decided on January 9, 1990. Bahri J. on consideration of three single Bench judgments, one of the Madras High Court and two of the Punjab and Haryana High Court and the provisions of Section 301 of the Code of Criminal, Procedure, came to the conclusion that :- "As far as the application for grant of bail is concerned, there is no provision made in the Code of Criminal Procedure that a complainant or a third party can intervene and make any submissions independently in opposing the application for grant of bail or anticipatory bail."

(10) Justice Bahri held that counsel for the complainant had no right to be heard on the bail applications. Counsel for complainant can brief the State Counsel and it is only the State counsel who can be heard in opposition to bail applications. Learned counsel for the applicants contended that the decision in Indu Bala's case is per incuriam. Counsel submitted that Justice Bahri had not considered the aforesaid two decisions of the Supreme Court which lays down the law with regard to the locus standi of the third parties to approach the courts. It was further submitted that Indu Bala's case is not applicable to the facts and circumstances of present case. The decisions of the Supreme Court relied on by the learned counsel for the applicants, as observed earlier were primarily concerned with the scope and ambit of power of the Supreme Court under Article 136 of the Constitution. In the said decision neither the scope and power of the High Court while considering bail applications under Criminal Procedure Code nor the scope and interpretation of Section 301 of the Code, came up for consideration. The principles laid down in the said decisions have no relevance for considering the question involved in the present application. I fail to see how decision in Indu Bala's case is not applicable to the present case.

(11) Before considering the submissions made by Mr. Mathur, learned counsel for the petitioner, contending that the applicants have no right to intervene in these proceedings, it would be appropriate to notice the stand of the Stale, 3h. P.P. Lao, learned Public Prosecutor on being asked about the stand of the State on the question, submitted that the Public Prosecutor alone is the sole in charge of the prosecution. He alone in these matters had the right to make submissions before the court. Pleaders of private parties can make submissions only under directions of Public Prosecutor as contemplated by Section 301 of the Code. Mr. Lao further submitted that the opinion expressed in Indu Bala's case represents the correct position in law. Learned counsel further submitted that in case such an intervention is permitted it will shake the confidence of the public in prosecuting agency and if any assistance is to be afforded by the third party it has to be afforded through the Public Prosecutor. Mr. Lao further submitted that there is nothing peculiar in this case which warrants grant of permission to the applicants to intervene in the application for the bail which, learned Public Prosecutor submits, is being strenuously opposed by the State.

(12) "PUBLIC Prosecutor" within the meaning of Section 2(u) of the Code is any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor. For every High Court, the Central Government or the State Government has to appoint a Public Prosecutor after consultation with the High Court. The provisions of the Code also provides for the necessary qualifications which are essential before a person can be appointed either as a Public Prosecutor or as an Additional Public Prosecutor. Under Section 301 of the Code, the Public Prosecutor in charge of case can appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. Section 301 of the Code reads as under :- "301.Appearance by Public Prosecutor-(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. (2) If in any such case any private person instructs a pleader to prosecute any person in any court, the public prospector 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."

Under Sub-section (2) of Section 301, the pleader instructed by any private person has to act under the directions of the Public Prosecutor or the Assistant Public Prosecutor. Thus it is clear that pleader of a private party can only assist the Public Prosecutor when proceedings are at the stage of inquiry, trial or appeal. After close of evidence such pleader with permission of court, can submit written arguments. The scheme of the Code is that when a case is at the stage, of enquiry, trial or appeal, the Public Prosecutor is in charge of the case. He represents the prosecuting agency before the court. Even in cases where a pleader has been instructed by a private person, such pleader has to act under the directions of the Public Prosecutor and such a pleader is included in the definition of "Public Prosecutor" as provided in Section 2(u). Thus it is evident that no pleader can be permitted to intervene or act except in the manner provided under Section 301(2) of the Code. The combine effect of Section 2(u), 24 and 301 of the Code is that a pleader engaged by a private party cannot plead though he can act and that too under the directions of the Public Prosecutor.

(13) Ms. Jethmalani, learned counsel for the applicants, submitted that Section 301 or for that matter any other provision of the Code does not prohibit any private party or the pleader of any private party to appear and assist the court by intervening in such proceedings. Learned counsel submits that the High Court has wide powers under Section 482 of the Code to permit such intervention. To my mind, the prohibition is implicit in Section 301. The only manner in which a pleader instructed by a private party is permitted to act has been provided in Section 301. No other provision of the Code permits a pleader instructed by a private party to act. Insofar as Section 482 is concerned, as observed earlier, the powers therein are to be exercised in the manner provided in the said section. The statutory powers conferred on High Courts by section 482 of the Code are not akin to constitutional power of Supreme Court under Article 136.

(14) There can be no doubt that to secure the ends of justice the High Court in exercise of power under Section 482 can take assistance from any person. But it does not mean that any such third person has a right to intervene in the manner claimed in this application.

(15) This aims and objects of the applicants-organizations may be very laudable and indeed they arc, but that does not help in resolving the question in favor the said organisations. The question is to be resolved bearing in mind the statutory provisions of the Code. Likewise, the other co-applicant, namely, the father of the deceased may be interested in the result of the proceedings but that by itself does not give him any right to intervene in these proceedings.

(16) Mr. Mathur contended that the question under consideration stands concluded by Indu Bala's case. Learned counsel further contended that howsoever laudable the aims and objects of these organisations may be. the applicants have no right To intervene at the stage of consideration of bail application of the petitioner. Counsel further contended sentiments or emotions have no part to play in judicial considerations. The sentiments and emotions may creep in, according to Mr. Mathur, in case the applicants are allowed to intervene and thus serious prejudice will be caused to the petitioner. In support, Mr. Mathur. relies on the decision of a Division Bench of this Court in Shakuntala & Ors. v. State reported in Vol. 25, 1984 Delhi Law Times 33. The Bench said : "Before we take of the leave of case we may notice that Miss Pani Jethmalani moved an application for permission to intervene on behalf of Mahila Dakshta Smiti. We find no sufficient reason to allow a private party to intervene in these proceedings. The state is represented by Standing Counsel Shri Teja Singh Sodi. The Standing Counsel has addressed us at length and fully assisted the Court. However, looking to the keen interest shown by Miss, Jethisalani we permitted her to address the Court. Mr. Teja Singh stated that it may be taken that Miss. Jethmalani has assisted him in the case. We appreciate the anxiety displayed by some of the women organisations in causes of wife burning-a crime to be condemned by one and all if proved deserving the severest sentence. The evil of dowry is equally a matter Of concern for the society as a whole and should be looked upon contemptuously both on (be giver and. the taker. This evil is in vogue in our society since time immortal and shall take time to be curbed. The social and economic condition are the main enemy of woman desperation sometime compelling her to commit suicide. These evils prevailing in our society have to be fought at different levels. Once economic independence comes in women the evil of dowry will die a natural death. Without education economic independence cannot be achieved and, therefore, education at all levels of the society-upper class, middle class lower class, is a must. We hear of no wife burning case in western countries, obviously because woman there are economically independent. The Courts cannot allow emotional and sentimental feelings to come into the Judicial pronouncements. Once sentimental and emotional feelings are allowed to enter judicial mind the judge is bound to view the evidence with a bias and in that case the conclusion may also be biased resulting in some cases in great injustice. The cases have to be decided strictly on evidence howsoever cruel or horrifying the crime may be. All possible chance of innocent men being convicted have to be ruled out. There should be no hostile atmosphere against an accused in Court. A hostile atmosphere is bound to interfere in an unbiased approach as well as a decision. This has to be avoided at all costs. We arc sorry for the above diversion but it has become necessary in this case."

(17) Though the judgment in Shakuntala Devi's case was reversed by the Supreme Court and the High Court's order of acquittal was reversed but the aforequoted observations were affirmed by the Supreme Court in the case State v. Laxman Kumar & Ors . It is not necessary to refer to other judgments retied on by learned counsel for the petitioner as the same have been considered by Bahri J. in Indu Bala's case. I agree with the opinion expressed in the said case. In my opinion the grant of permission to the applicants to intervene as claimed by them, would amount to extending the creed of populism in the realm of judicial action. Justice Anand in Brij Lal & another v. State of Delhi, 1985 Delhi Reported Judgments 322, said :- "Extension of the creed of populism in the realm of executive, legislative or judicial action must be discouraged in any system based on the concept of rule of law, even though one may have no control over it in a purely political field."

(18) It may also be noticed that the applicants have not alleged in the application that the State is not doing its duty properly in any manner. The applicants have also not sought leave to assist the State. The contention of the applicants was also not .that the Public Prosecutor has abdicated his functions. The main thrust of the argument of learned counsel for the applicant has been that the applicants have a right to intervene and make oral arguments in the bail application filed by the petitioner. For the reasons aforesaid my answer to the question is that the applicants have no right to intervene and be heard in opposition to the bail application (Cr. M. (M) 161/90).

(19) There is no substance in the application which is, accordingly, dismissed.