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2019 Supreme(MP) 562
IN THE HIGH COURT OF MADHYA PRADESH
Smt. Anjuli Palo, J.
Anchal Tiwari v. State of M.P.
Miscellaneous Criminal Case No. 41175 of 2018 (J);
Decided on 25.11.2019
Siddharth Gulatee for petitioner; Ravikant Patidar, Government Advocate for respondent/State, Vivek Shukla for respondents No. 2 to 5.
Headnote:
Criminal P.C. 1973 -- Ss. 91, 302 and 301(2) -- Penal Code, 1860 -- Ss. 294, 323, 323/34, 324, 324/34 and 506II -- trial Court framed Charges against respondents -- during trial, petitioner/complainant got permission to assist prosecution -- subsequently, he filed application for production of additional documents -- petitioner stated that relevant documents were in custody of police -- they were not produced by police at time of filing of charge sheet -- trial Court is under obligation to consider petitioner's prayer -- relevant document be produced before Court through public prosecutor -- petitioner shall file fresh application through public prosecutor before trial Court -- trial Court shall reconsider his prayer and pass appropriate order. 2019 SCC Online SC 1495, (1999) 7 SCC 467 and 2014 SCC Online Tri. 859 discussed. [Paras 14 & 15]
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ORDER
1. This petition has been filed by the petitioner being aggrieved by the order dated 10.8.2018 passed by the Second Additional Sessions Judge, Itarsi in Criminal Revision No. 10/2018, arising out of the order dated 16.5.2018 passed by the Judicial Magistrate First Class, Itarsi, District Hoshangabad in RCT No. 401001/2015.
2. Brief facts of the case are that on the complaint filed by the petitioner/complainant, a charge-sheet has been filed against the respondents No. 2 to 5 and charges under sections 294, 323, 323 r/w 34, 324, 324 r/w 34 and 506-II of the Indian Penal Code have been framed by the trial Court. During trial, the petitioner/complainant had moved an application under section 302 of CrPC and got permission to assist the prosecution. Subsequently, he filed an application under section 91 of the CrPC for production of additional document, which has been dismissed by the trial Court on 16.5.2018 on the ground that the counsel for the complainant has no locus standi to file such an application. Against the said order, the petitioner/complainant filed a revision before the Court of Second Additional Sessions Judge, Itarsi which has been dismissed on the ground that revision is not maintainable against any interlocutory order.
3. The petitioner/complainant has challenged both the aforesaid orders contending that they are arbitrary, illegal and erroneous. The documents are relevant for the complete adjudication of the case. The complainant, as a victim, could not have been deprived from bringing the documents on record merely on technicalities. Hence, he has prayed to quash the impugned orders and the documents be taken on record.
4. Learned counsel for the petitioner has placed reliance on the case of Rekha Murarka v. State of West Bengal and anr., 2019 SCC Online SC 1495 in support of his contentions.
5. On the contrary, learned counsel for the respondent has strongly objected the contentions of the petitioner and has placed on the case of Shiv Kumar v. Hukum Chand and anr., (1999) 7 SCC 467, wherein the Supreme Court has broadly discussed about the right of a private counsel to conduct prosecution in a Sessions Court with regard to the limited role to act under the directions of the public prosecutor.
6. Heard learned counsel for the parties. Perused the record.
7. On the FIR lodged by the petitioner/complainant, charge-sheet was filed under sections 294, 323, 323/34, 324, 324/34 and 506-II of the IPC against the respondents at Police Station Pathrota, District Hoshangabad. It is pertinent to note that in the impugned order itself, the learned trial Court mentioned that earlier the Court had granted leave in favour of the counsel for the petitioner to assist the prosecution on behalf of the complainant. Section 301(2) of the CrPC prescribes as under :
"(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case."
8. The aforesaid provision provides that the private counsel of a complainant has liberty only to submit written arguments after the closure of evidence in the trial with the permission of the Court. The object behind the said provision is that the Court should be zealous to see that the prosecution of an offender is not handed over completely to a professional person instructed by a private party.
9. In the case of Shiv Kumar (supra), the Supreme Court has observed as under :
"9. In the Magistrate's Court anybody (except a police officer below the rank of Inspector) can conduct prosecution, if the Magistrate permits him to do so. Once the permission is granted the person concerned can appoint any counsel to conduct the pros
