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2009 Supreme(AP) 768
HIGH COURT OF ANDHRA PRADESH
B. CHANDRA KUMAR, J.
C S Y SANKAR RAO
VS.
STATE OF A. P.
CRI. M. P. NO. 8901 OF 2009 IN CRL. P. NO. 8736 OF 2009
Decided On : NOVEMBER 04, 2009
C.PRAVEEN KUMAR, P.VISHNUVARDHAN REDDY,
Headnote:
Code of Criminal procedure, 1973 - Sections 301 (2), 439 (2) , 154 (2) , 200 , 301 and 357 (3) – Mutual agreement - Dishonest intention - de Facto complainant - Quash the criminal proceedings - Petition is filed seeking to implead petitioner who is de facto complainant - Brief facts of case are as follows are Directors of - Luminus Energy House Mumbai - Mutual agreement Energy private Limited lifted solar power supply systems worth on various dates with dishonest intention and issued post dated cheques to deceive defraud and de facto complainant Company - When de facto complainant presented those cheques on in State Bank of same were main contention of learned counsel for petitioner is that de facto complainant has a right to put forth his case before - Court even at the stage of considering applications for bail - He relied on judgments in case between International - Instead of paying said amount threatened de facto complainant with dire consequences above referred sections and whole scheme of Code of Criminal Procedure Held, Public policy that though it is primary duty of State to conduct prosecution however victims are not totally barred in approaching Court in appropriate cases and to represent their grievances - It is common knowledge that nowadays in many cases victims and witnesses are not in a position to appear before Court and depose any fear or favour - Criminal justice delivery system may fail and ultimately justice may not be done in serious and heinous criminal offences if witnesses are not allowed to depose freely without any fear or favour - In view of same though there is a limited scope I feel that victims and de facto complainants can be heard at stage of considering bail applications or cancellation of bail with the permission of Court and as supplementary to arguments advanced by Public prosecutor - Whatever de facto complainant or victim has to say initially they must act as per directions and under the instructions of Public Prosecutor - Court may in appropriate cases if comes to a conclusion that in interest of justice it is necessary to hear de facto complainant or victim they may be heard discretion has to be exercised judiciously with reasonable care and caution – Ordered Accordingly
( 2 ) THE brief facts of the case are as follows: a-l and A-2 are the Directors of m/s. Luminus Energy Privatelimited, luminus House, Anita, near Grant Hyatt, vakola, Santa Crauz (E), Mumbai. As per the mutual agreement, the Luminus Energy private Limited lifted solar power supply systems worth Rs. 3,82,62,457/- on various dates with dishonest intention and issued post dated cheques to deceive, defraud and cheat the de facto complainant Company. When the de facto complainant presented those cheques on 01-2-2008 in State Bank of india, Somajiguda, the same were dishonoured. A-l and A-2, instead of paying the said amount, threatened the de facto complainant with dire consequences.
( 3 ) THE main contention of the learned counsel for the petitioner is that the de facto complainant has a right to put forth his case before the Court even at the stage of considering the applications for bail. He relied on the judgments in case between m/s. J. K. International v. State, Government of nct of Delhi (1) 2001 Crl. LJ. 1264 = 2001 (3)ALT24. 1 (DNSC);r. Rathinam v. Statehy DSP, districtcrimebranch,maduraidistrict,madurai (2) 2000 SC (Crl) 958; and Puran v. Rambilas (3)2001 (2) ALT (Crl.) 108 (SC)= (2001) 6scc 338.
( 4 ) LEARNED counsel for the respondent submitted that the de facto complainant has no right to put forth his case at the stage of hearing bail application. It is also his submission that there is no provision to enable the de facto complainant to implead himself as a party while considering the bail application of the accused. It is also his submission that if the de facto complainant or the victim is allowed to come on record at this stage, prejudice will be caused to the accused and the right to liberty granted to the accused person will be seriously affect.
( 5 ) THE only point that arises for cpnsideration is, whether the de facto complainant or the victim can be heard at the stage of considering the bail applications of the accused in a criminal cases.
( 6 ) IT is the duty of the State to protect the life and properties of its citizens and to prevent the crime and to punish the accused in accordance with law. As a,part of criminal justice delivery system, the Courts have been established and the Public Prosecutors have been appointed to assist the Courts in conducting trials and other criminal proceedings. The Public Prosecutors and the advocates are the officers of the Court. They have to assist the Court and place all the facts before the Court. The Public Prosecutors must present the facts without any bias and without undue emphasis on any aspect of the case leaving the decision to the Court. They have to act independently and in the interest of justice. The Pubic Prosecutors are not the representatives of the Investigating officers and the investigating agency. When a defect in the investigation or in the prosecution case is noticed by Public prosecutor, it is his duty to bring the same to the notice of the Court. They have to make fair submissions with regard to the facts and circumstances of the case and also legal position. In Vijay Valia's case (1986) Cri. LJ. 2093), it was held as follows:
"the role of the prosecutor in any criminal trial (whether at the instance of the State or of a private party) is to safeguard the interests of both the complainant and the accused. The right to be heard includes the right to be represented by an able spokesman of one's confidence. This right belongs to the complainant and to the accused, both. The complainant also needs assistance. The prosecutor is bound by law and professional ethics and by his role as an officer of court to employ only fair measures. Hence, it cannot be said that when Special Public Prosecutors are appointed, whether paid by the state or by private party, the trial must be presumed to be biased".
( 7 ) IT is the duty of
