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High Court Before the Madurai Bench of Madras
THE HONOURABLE MR. JUSTICE M.M. SUNDRESH
Sathyavani Ponrani
Versus
Samuel Raj & Another
CRL.O.P.(MD)NO.5474 OF 2010
Decided on: 07-07-2010
B. CRIMINAL PROCEDURE CODE, 1973 - SECTIONS 24(8) & 301 COMPLIMENTARY - The Court held that section 301 together with proviso under section 24(8) Cr.P.C. are complimentary with each other by providing more access to an aggrieved party to assist the prosecution. The court further held that section 301 Cr.P.C. also cannot be interpreted to hold that it would be a bar for hearing a victim in an application of section 438 Cr.P.C. for the reasons no enquiry, trial or appeal is involved. Therefore the restrictions under Section 301 cannot be made applicable to the procedure under Section 438 Cr.P.C. The court referred to the ruling of the Kerala High Court in Kunhiraman v. State of Kerala reported in 2005 MLJ (Cri) 741 on a similar issue (Para 29 & 30).
C. CRIMINAL PROCEDURE CODE, 1973 - SECTION 301 - RIGHT TO ASSIST IS RIGHT TO EXAMINE - The court held that though it is the sole prerogative of the public prosecutor to pick, choose and examine a prosecution witness if the prosecutor fails in the above mentioned duty either accidently or designly in the opinion of the court then in such circumstances it can permit a victim’s lawyer even to examine a witness. Such a power can also be exercised by the court for the purpose of conducting a free and fair trial and in the interest of justice. (Para 36).
Therefore this court is of the opinion that a combined reading of Section 301 and proviso under Section 24(8) would make it clear that a lawyer can be engaged to argue and in a appropriate case with the permission of the court to examine the witness. (Para 37).
D. CRIMINAL PROCEDURE CODE, 1973 - VICTIM & THIRD PARTY - To participate in a criminal proceedings one need not be a victim alone. The word ’victim’ will have to be given a wider interpretation to mean not only the victim but anyone who is associated or assisting the victim or who sets the criminal law into motion or even in a given case a third party with public interest. The court cited the following rulings of the Apex Court P. Rathinam v. State reported in AIR 2000 SC 1851 and Puran v. Rambilas (2001) 6 SCC 338 (Para 54 & 55).
E. CONSTITUTION OF INDIA - ARTICLES 14, 21 & 39 - FREE AND FAIR TRIAL A CONSTITUTIONAL GUARANTEE - Free and fair trial and investigation and trial is enshrined in Article 14, 21 and 39-A of the Constitution of India. It is the duty of the State to ensure that every citizen of the country should have the free and fair investigation and trial. The preamble of the constitution are compulsive and not facultative. In that free access to the form of justice is integral to the core right to equality, regarded as a basic feature of our constitution. Therefore such a right is a constitutional right as well as a fundamental right. Such a right cannot be confined only to the accused but also to the victim depending upon the facts of the case. Therefore such a right is not only a constitutional right but also a human right. Any procedure which comes in a way of a party in getting a fair trial would (be) in violation of Article 14 of the Constitution. (Para 66).
The court cited the following Apex Court judgments, Zahira Habibulla H. Sheikh v. State of Gujarat, reported in (2004) 4 SCC 158, Tashi delek Gaming Solutions Ltd v. State of Karnataka reported in (2006) 1 SCC 442, Nirmal Singh Kahion v. State of Punjab reported in (2009) 1 SCC 441 (Para 67 to 69).
Result : Petition disposed off with directions.
The one and only issue which is of considerable public importance that arises in this case is as to whether a victim is entitled to be heard and take part in a criminal proceeding or not.
2. In CAPTAIN AMARINDER SINGH v. PARKASH SINGH BADAL AND OTHERS [(2009) 6 SCC 260], the Hon'ble Apex Court has observed that fair trial is the first imperative in the dispensation of justice. The purpose of criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and biased, judicial fairness and the criminal justice would be at stake, shaking the confidence of the public in the system which would ultimately result in its collapse.
3. The Hon'ble Apex Court in DEVENDER PAL SINGH v. STATE OF NCT OF DELHI AND ANOTHER [(2002) 5 SCC 234] has observed as follows:
"Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law."
4. VISCOUNT SIMON IN STIRLAND v. DIRECTOR OF PUBLIC PROSECUTOR [(1944) 2 ALL ER 13] has held as follows:
"A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape.
... Both are public duties..."
5. The said observation has been quoted with approval by the Hon'ble Apex Court in STATE OF U.P. v. ANIL SINGH [1988 Supp SCC 686] and in DEVENDER PAL SINGH v. STATE OF NCT OF DELHI AND ANOTHER [(2002) 5 SCC 234].
6. JUSTICE V.R.KRISHNA IYER in his Book EQUAL JUSTICE AND FORENSIC PROCESS has observed thus:
"Access Jurisprudence, for us a constitutional fundamental, has many dimensions. It is narrow and pedantic to regard it merely as a wider rule of standing or mode of informal excitation of judicial jurisdiction through letters to the judges etc. Its circumambience spreads out to reach relief to the littlest citizen denied his or the weakest group their right, freedom and redressal of wrong. Every measure in this range of operations from awakening the victims of injustice, assisting them to mobilise legal resources for demanding justice, affording public initiation and intervention in ensuring that the just shall win and the unjust shall lose, minimising technicalities by using informal procedures and a host of other steps like forbiddance of the rich from cornering all judicial time by forensic orality unlimited and by appeals, revisions and reviews ad libitum in an endless escalation and priority for the litigation of groups whose minimal staying power makes urgent justice a super-value- and these are integral to the People's Jurisprudential Processes."
7. The crucial significance of access jurisprudence has been best expressed by Cappelletti in the following way:
"The right of effective access of justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice thus be seen as the most basic requirement – the most basic 'human-right' - of a system which purports to guarantee legal rights."
8. Keeping the above said principles coupled with the message conveyed by the Constitution under Articles 14, 21, 38 and 39A of the Constitution of India in view, this Court will have to examine the issue that has arisen for consideration.
9. The facts of the case in a nutshell are as follows:
9.1. The petitioner is the father of the deceased. He married off his daughter to the first respondent's son on 02.07.2009. Unfortunately, the petitioner's daughter died by committing suicide. Thereafter the petitioner gave a complaint which has been registered in Crime
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