A lawyer engaged by a private person has no right of audience in a sessions trial.

On a complaint filed by the petitioner the twelve accused/opposite parties were summoned by the learned Sub-divisional Judicial Magistrate, Contai to stand trial under S.395 read with S.397 of the Penal Code. In due course the case was committed to the Court of Session and the learned Sessions Judge, Midnapore made over the case to the learned Assistant Sessions Judge, Contai for trial. Thereafter the petitioner filed an application before the learned Sessions Judge, Midnapore stating that he had engaged a senior Advocate of the Midnapore District Bar to conduct the case on his behalf but due to his old age he was unable to go to Contai to conduct the case and accordingly praying for transfer of the case from the Court of the Assistant Sessions Judge, Contai to any competent Court at Midnapore to enable the petitioner to avail of the services of the Advocate engaged by him. As the learned Sessions Judge rejected his application the petitioner has filed this application in revision.

2. At the time of hearing of this revisional application we raised a threshold question regarding maintainability of the application filed by the petitioner in the Court below by pointing out to his learned Advocate that every trial in a Court of Session was statutorily required to be conducted by a Public Prosecutor and that necessarily meant that the lawyer engaged by the petitioner would have no right of audience notwithstanding the fact that the trial originated from his complaint. In answer thereto the learned Advocate for the petitioner drew our attention to a judgment delivered by a learned single Judge of this Court in the case of Sk. Lutfar Rahaman v. State reported in 1987 Cal Cri LR 52 and, relying upon the same, contended that the lawyer engaged by the petitioner could address the Court so long as he was acting under the directions of the Public Prosecutor.

3. In the case of Lutfar (supra), which related to an offence of murder, the lawyer engaged by the brother of the deceased was permitted to address oral arguments by the learned trial Judge. Besides, he entertained and allowed the prayer made by the said lawyer to summon three witnesses under S.311 of Cri.P.C. ("Code" for short). Aggrieved by the above two steps taken by the learned trial Judge, the accused therein moved this Court in revision and contended, inter alia, that under S.301(2) of the Code a lawyer engaged by a private person might assist the Public Prosecutor but had no authority to address the Court orally.

4. On behalf of the brother of the deceased, attention of this Court was drawn to the definition of 'Public Prosecutor' as given in S.2(u) of the Code and to the order of the learned trial Judge recording grant of permission to the lawyer for the private person to address the Court under the direction of the Public Prosecutor; and submission was made that in such a case the lawyer so engaged became the "Public Prosecutor".

5. On hearing the submissions made by the parties the learned single Judge observed as follows :

"......... I am of the view that in view of the new provision of S.301(2) if the learned Additional Sessions Judge permits the Advocate for the private party who has been given consent by the Public Prosecutor to submit the oral argument under his direction, then the spirit (emphasis supplied) of S.301(2) is not in the least violated and if the private Advocate makes the arguments before the Court at the direction of the Public Prosecutor, I am of the view that there is no illegality committed."

6. Having carefully gone through the relevant provisions of the Code we regret our inability to share the above quoted views expressed by the learned Judge and respectfully differ from the same.

7. Sub-sec.(1) of S.301 of the Code entitles the Public Prosecutor, who is in charge of a case, to appear and plead without any written authority before any Court in which the case in question is under enquiry, trial or appeal and sub-sec.(2) thereof reads as under:

"If