VERY IMPORTANT POINTS
1. Prosecution in a sessions court cannot be conducted by any one other than the Public Prosecutor. Private counsel cannot act otherwise than under the directions of the Public Prosecutor. He may only may submit written argument, with the permission of the Court, after evidence is closed.
2. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused.

Headnote:(i) Code of Criminal Procedure, 1973 - Section 301 r/w Section 225-Prosecution of Sessions case by private counsel-Permissibility-Prosecution in a Sessions Court cannot be conducted by any one other than Public Prosecutor-Private counsel can act only under directions of public prosecutor-Lawyer appointed by complainant or private person with permission of Court may only submit written arguments, with permission of Court, after evidence is closed.
       Held : Unlike its succeeding provision in the Code, the application of which is confined to magistrate courts, Section 225 is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from employment of the words "any court" in Section 301. In view of the provision made in the succeeding section as for magistrate courts the insistence contained in Section 301(2) must be understood as applicable to all other courts without any exception. The first sub-section empowers the Public Prosecutor to plead in the court without any written authority, provided he is in charge of the case. The second sub-section, which is sought to be invoked by the appellant, imposes the curb on a counsel engaged by any private party. It limits his role to act in the court during such prosecution "under the directions of the Public Prosecutor". The only other liberty which he can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the court permits him to do so. (Para 9)
       From the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by any one other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Publie Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor. (Para 10)
       It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter. (Para 11)
       (ii) Criminal Procedure Code, 1973-Criminal trial-Prosecution case by Public Prosecutor-Public Prosecutor is not expected to show a thirst to reach the case in the conviction of accused somehow or other irrespective of true facts involved in the case-If an accused is entitled to any legitimate benefit during trial Public Prosecutor should not scuttle/conceal it-It is duty of public prosecutor to winch it to fore and make it available to accused. (Para 10)

JUDGMENT

Thomas, J.-It is as well for the protection of accused persons in sessions trials (in India) that provision is made to have the case against him prosecuted only by a Public Prosecutor and not by any counsel engaged by the aggrieved private party. Fairness to the accused who faces prosecution is the raison d etre of the legislative insistence on that score.

2. In this case, appellant is aggrieved because a counsel engaged by him was not allowed by the High Court to conduct prosecution in spite of obtaining a consent from the Public Prosecutor concerned. First respondent was the accused in the sessions trial wherein appellant wanted his counsel s active role to be played. Appellant and respondent are advocates practicing at the same station. The grievance of the appellant developed in the following fact situation :

Appellant is the brother of five sisters, and the youngest among them, Suman, had secured creditable academic laurels. She was given in marriage to Dr. Dinesh Kumar Gupta (the son of the respondent). But about 4 months after her marriage she met with a tragic death by burns. On a complaint lodged by the appellant, FIR under Section 302 and 120-B of the Indian Penal Code (IPC) was registered by the local police against the respondent. But after completion of the investigation a charge-sheet was laid against him for the offence under Section 304-B of the Indian Penal Code.

3. Appellant, on his part, engaged Shri R.C. Gugnani, advocate, to appear for him in the sessions court during trial of the case. On 1.7.1996 when appellant was to be examined as a witness for prosecution, Shri R.C. Gugnani, advocate ventured to conduct the chief examination of that witness. It was objected to by the counsel for the accused on the premise that a private counsel cannot conduct prosecution in a sessions trial. Appellant then moved an application on the same day, the relevant portion of which reads thus :

"That the Public Prosecutor has no objection if the case is conducted by Shri R.C. Gugnani, advocate. That as per the prevailing practice being followed by this Hon ble Court and as per provisions of Section 301(2) Cr. P.C. my counsel has a right to conduct the case under the directions of the Public Prosecutor. It is, therefore, prayed that in view of the facts stated above, necessary permission may please be given to the applicant for conducting the case under the directions of the Public Prosecutor."

It seems, the Public Prosecutor in the trial court endorsed the said application. The trial Court passed an order thereon, the material portion of which is the following :

"I accept the application and allow Shri R.C. Gugnani, advocate of the complainant to conduct under the supervision, guidance and control of the public prosecutor, while conducting the same case and the public prosecutor shall retain with himself the control over the proceedings."

Accused was not prepared to have his case prosecuted by the complainant s counsel and hence he approached the High Court in revision. The impugned order of the High Court was passed by a Single Judge. The operative portion of the said order reads thus:

"I allow this revision and direct that the lawyer appointed by the complainant or private person in this case shall act under the directions from the Public Prosecutor and may with the permission of the court submit written arguments after evidence is closed in the case. I further direct that the Public Prosecutor in charge of the case shall conduct the prosecution. Revision petition is disposed of accordingly."

4. Learned counsel for the appellant informed us that trial in the case is over by now. Nonetheless he pleaded for consideration of the issue as he feels that a decision thereon by this Court is necessary for future guidance also. He contended that Section 302(2) of the Code of Criminal Procedure (for short the Code ) must be so construed as to enable the pleader of an aggrieved private person to conduct the prosecution in as best a man

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1999 Supreme(SC) 942

Cases Referred (1)