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Andhra Pradesh High Court
Judges : PUNNAIAH
T.V.Sarma - Appellant
Versus
A.Naga Koteswara Rao - Respondent
Crl. R.C. No. 162 & 190/79
Decided On : 09-21-79
Advocates Appeared :
.
Held : From a careful reading of the provisions of Sections 2 (U), 24(2), 209, 225 and 301, it is clear that every trial before a Session Judge should be conducted only by a public Prosecutor and the Counsel engaged by the complainant cannot be permitted by a Sessions Judge or Assistant Sessions Judge, as the case may be, to conduct the prosecution unless permission is granted by the Public Prosecutor to the complainant s Counsel to Act under his control or directions and the counsel so permitted should act under the directions and supervision of the Public Prosecutor in conducting the Prosecution. These provisions are clearly conceived in the public interest as well as in the interest of the accused, because the position of the Public Prosecutor is different from an Advocate appearing for a private party. The Legislature felt in its wisdom that it is not desirable to permit the complainant or his counsel to conduct the prosecution independently and it, therefore, mandates that every trial before a Sessions Judge should be conducted by a Public Prosecutor and even if the Public Prosecutor permits, a counsel engaged by the complainant should act under the direct control and supervision of the Public Prosecutor and the Public Prosecutor should not abdicate himself from conducting the prosecution or assisting the Court leaving the Prosecution in it entirety to the counsel engaged by the complainant. When a counsel engaged by the complainant is not permitted under Section 301 (2) independently, but has to act under the Control and directions of the Public Prosecutor, it would be beyond the scope of Sec. 225 as well as Section 301 (2) if the complainant s counsel is permitted to conduct the prosecution of a Sessions Case arising out of a private complaint.
Crl. R.C. Allowed
( 1 ) CRL. . R. C. No. 162/1979 is directed against the order passed by the Additional Sessions Judge, Ongole in Crl. M. P. No. 43/1979 in sessions Case No. 8/1976.
( 2 ) CRL. R. C. No. 190/1979 is directed against the order passed by the Additional Sessions Judge, Hyderabad cum-Metropolitan Sessions judge. Hyderabad in Crl. M. P. No. 37/1979 in Sessions Case No. 5/1979
( 3 ) IN both the cases, the same question of law has arisen and hence they can be disposed of by one common judgment.
( 4 ) SESSIONS case No. 5/1979 arose out of a private complaint filed by Sri M. Surajmul, the brother of the deceased Kama Bai. A-1 is the husband of the deceased Kanta Bai. A-2 is the mother and A-3 is the servant of A-1. A-4 Is the younger sister s husband of A-2. A 5 and a-6 are brothers and they are Kavalkar and Police Patel respectively. The offences alleged against the accused are those punishable under Section 120-Bread with Sections 302 and 201 of the Indian Penal Code. Surajmul filed the complaint in the Court of the Judicial First Class magistrate, Hyderabad West and the case was committed by the learned magistrate to Sessions Court. The learned Sessions Judge. Hyderabad district took the case on file as Sessions Case No. 5/1979 and made it over to the Additional Sesions Judge, Hyderabad District-cum-Metro-politan sessions Judge for disposal according to law.
( 5 ) WHEN the trial of the case was taken up, the complainant s counsel sri. T. V. Sharma filed the petition Crl. M. P. No. 37/1979 contending that that the prosecution should be conducted by the counsel of the complainant, but not by the Public Prosecutor since the proceedings were initiated by the complainant himself, but not by the State.
( 6 ) IN Crl, R. C. No, 162/1979 the petitioner Sri T. V. Sharma filed a private complaint against the respondents who are A-1 to A-16 and A-18 to A-25 in the court of the Judicial Second Class Megistrate, Chirala and the same was registered as P. R. C. No. 1/1975 and the learned Magistrate committed the case to the Sessions Court and it was registered as Sessions case No. 8/1976 by the learned Sessions Judge and made over to the additional Sessions judge. When the trial was taken up, Sri Sharma filed a petition Crl. M. P. No. 43/1979 before the learned Sessions judge contending that since the proceedings have arisen out of a private complaint filed by him and as such he should alone conduct the prosecution and the public Prosecutor has no locus standi to conduct the case.
( 7 ) THE Additional Sessions Judge, Hyderabad District cum metropolitan Sessions Judge, Hyderabad and the Additional Sessions Judge. Ongole dismissed the petitions holding that when once the case is committed to the Session Court, Section 225 Cr. P. C. , comes into play and that as Section 225 provides that in every trial before a Court of Session, the prosecution shall be conducted by Public Prosecutor, private complainant or a counsel of his choice cannot conduct the prosecution. Aggrieved with the respective orders, these revision cases are filed.
( 8 ) SRI T. V. Sharma who is appearing as counsel for the petitioner in crl. R. C, No. 190/1979 and who is the petitioner in Crl. R. C. No. 162/ 1979 contends that where a sessions case arises out of a private complaint, the complainant himself should conduct the prosecution, but not the public Prosecutor. According to him, the State is not interested in the prosecution since it has arisen out of a private complaint and hence the public Prosecutor should not conduct the prosecution. In support of his contention he relied upon sections 2 (a), 24, 301, 302, 385 (1) (iv ). 401 (4) and 378 (4) Cr, PC He also relied upon the decision of the Supreme court in STATE OF PUNJAB V. SURJIT SINGH (AIR 1967 S. C. 1214 ).
( 9 ) PUBLIC Prosecutor and the advocate appearing for the respondents in both the cases, on the other hand, contend that Section 385 (1) (iv), 401 (4) and 378 (4) Cr. P. C. , relate to the particular cases men
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