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PUNJAB & HARYANA HIGH COURT
S.K.Kapur, J.
Roop K.Shorey
Versus
State Of Delhi
CRIMINAL APPEAL No. 134 of 1964,
Decided On : MAY 28, 1965
CRIMINAL PROCEDURE CODE - SECTIONS 493 AND 495 - SCOPE AND INTERPRETATION - PUBLIC PROSECUTOR'S ROLE - PRIVATE COUNSEL'S PARTICIPATION - PERMISSION REQUIREMENT - IRREGULARITY VS. ILLEGALITY - PREJUDICE TO ACCUSED.
Fact of the Case:
The petitioner, accused in a criminal case, challenged the legality of a private counsel, Mr. Anand, conducting the prosecution on behalf of the complainant without express written permission from the Magistrate. The petitioner argued that Mr. Anand's involvement violated sections 493 and 495 of the Criminal Procedure Code (CrPC).
Finding of the Court:
The court held that sections 493 and 495 of the CrPC must be interpreted together to determine their scope and ambit. Section 493 requires the Public Prosecutor to conduct the prosecution, while section 495 allows a private counsel to assist the Public Prosecutor with permission from the Magistrate. However, the court clarified that a private counsel can examine, cross-examine witnesses, and address the court under the supervision and control of the Public Prosecutor without requiring permission under section 495.
Issues: 1. Whether Mr. Anand's involvement in the prosecution without express written permission from the Magistrate violated sections 493 and 495 of the CrPC? 2. Whether the Public Prosecutor's presence in court during Mr. Anand's participation constituted compliance with section 493? 3. Whether the absence of a written authority in favor of Mr. Anand till a later stage affected the validity of his participation?
Ratio Decidendi: 1. The court interpreted sections 493 and 495 of the CrPC together to determine their scope and ambit. It held that 'conducting the prosecution' under section 493 means taking charge of the entire proceedings independently, while 'acting under the directions of the Public Prosecutor' allows a private counsel to assist the Public Prosecutor without requiring permission under section 495. 2. The court held that the Public Prosecutor's presence in court during Mr. Anand's participation constituted compliance with section 493. It reasoned that as long as the Public Prosecutor retains control and guidance over the proceedings, a private counsel can act under section 493 without violating it. 3. The court held that the absence of a written authority in favor of Mr. Anand till a later stage did not affect the validity of his participation. It stated that this was a matter between the client and the counsel and did not impact the legality of Mr. Anand's involvement.
Final Decision: The court dismissed the petitioner's revision petition, holding that there was no non-compliance with sections 493 and 495 of the CrPC. It directed the parties to appear before the trial court on a specified date and expressed hope that the trial court would observe the principles discussed in the judgment.
S.K.Kapur, J.
1. This criminal revision is directed against the order of the learned Sessions Judge, Delhi dated the 24th December 1963 and raises the question of construction of sections 493 arid 495, Criminal Procedure Code. The first information report was lodged against the petitioner Roop K. Shorey alleging that he had committed .an offence .under sec. 420, Iadian Penal Code. Charge was framed in pursuance of the said first information report and the examination of the prosecution witnesses started on 2nd March, 1963, with the examination of Ram Parshad complainant. His cross-examination commenced on 5th March, 1963, and continued on 6th March, 1963. Mr. R. L. Anaad Advo- cate appeared on these days on behalf of Ram Parshad complainant. It has been alleged by the petitioner that instead of the Public Prosecutor, Mr. Anand conducted the examination-in chief of the first prosecution witness, and put all type of leading questions to him. On an objaction on behalf of the petitioner that Mr. Anand had no authority to appear on behalf of the complainant he filed his power-of-attorney on 6th March, 1963. It is furtherJ alleged that even when Ram Parshad was being crossexamined Mr. Anand took#1; active part in conducting the prosecution and the Public Prosecutor appointed for the Court merely remained as a silent spectator. On 6th March, 1963, an application was made on behalf of the petitioner and it is necessary to refer to some of the allegations made therein. It was. infer alia. alleged in the application that (a) there was a regular Public Prosecutor appointed for the Court who was incharge of prosecution but still it was Mr. Anand who was acting and pleading on behalf of the prosecution independently: (b) there was no power or authority from the Public Prosecutor in favour of Mr. Anand entitling him to conduct the prosecution (e) Mr. Anand could not conduct the prosecution without the express permission of the Court granted to him : (d) the Public Prosecutor was not taking any active interest in the case andas merely a silent spectator; (e) constant interference by Mr. Anand was causing great prejudice to the defence ; and (f) in view of the provisions of sections 493, Criminal Procedure Code, Mr. Anand was not competent to conduct the prosecution. Areply was filed on behalf of the complainant on 16th March, 1963. and it was inter alia stated therein that an. application was made to Shri Baldev Raj, Magistrate First Class, for grant of permission to Shri Anand to conduct the prosecution and Shri .Baldev Raj announced an order that he had granted permission but the complainant was not aware that there was no such order in writing. It was not necessary that permission under sec. 495 should have been granted in writing. The objections raised by the petitioner were belated and, therefore, could not be entertained. This reply has been signed by Shri l. M. Lal Advocate and submitted in reply to the written arguments filed in the Court on behalf of the petitioner. There is another reply which is dated 15th March, 1963 signed by Shri S. N. Anand Advocate owhich reliance has been placed by both the sides. This reply is not available on the record and a copy thereof has been supplied by Shri S. N. .Anand the learned counsel for the respondent. It is inter aha stated in the said reply that (a) Shri Ram Lal Anand had been handling the proceedings ceedings for the last over five years. On 15th February, 1958, the complainant., by an application sought the permission of the Court to have this case conducted by a counsel of his choice. He mentioned the name of Shri Anand and prayed for adjournment of the case as Shri Anand needed copies of tlie material under section ,173, Criminal Procedure Code and the case was actually adjourned. Again on 17th February, 1958, the case was adjourned, at the request of Shri Anand because he was busy in another case. Tlie petitioner filed an application under sec. 561 Criminal Procedure Code for q
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