Engaged counsel for a first informant lacks independent right of audience in bail applications under CrPC, only assisting the public prosecutor.

1. A short question raised for consideration is as to "Whether a lawyer engaged by the first informant has a right of audience while opposing a bail application filed under S.438 of the Code of Criminal Procedure ?"

2. The brief facts are that apprehending arrest in connection with Crime No. 16/2006, registered at Police Station Telibandha, Raipur (C.G.) for commission of the offence punishable under S.409 of the IPC, the applicant has field this application under S.438 of the Code of Criminal Procedure (hereinafter referred to as CrPC or Code) for grant of anticipatory bail. It is stated that the first informant is Indira Gandhi Agricultural University, Raipur. After filing of this application, the first informant, by M.Cr. P. No. 566/2006 is seeking permission to assist prosecution and to make objection to the bail application. A reply to the said application has been filed by the applicant and the same is opposed. During the course of arguments on 2-5-2006, learned counsel for the applicant raised serious objections contending that the counsel engaged by the first informant has no locus standi to independently advance oral arguments and oppose the bail application. A joint prayer was made at the Bar to decide this point first and then to decide the bail application on merits. It is in this manner, the matter has cropped up for hearing on a short point referred to above.

3. Referring to the provisions of S.301, CrPC learned Senior Counsel for the applicant argued that on the analogy of the limited right under the aforesaid section, the role of the private counsel engaged by the first informant in a matter under S.438, CrPC must also be limited to act under the directions of the public prosecutor and the counsel so engaged has no right of audience and he cannot advance oral arguments independently. He also referred to the decision rendered by the Apex Court in the matter of Shiv Kumar v. Hukum Chand 1999 (7) SCC 467 . He further argued that looking to the language of S.301(2) CrPC, about assisting the public prosecutor and also about submission of the written arguments, there is hardly any scope to hold that the lawyer so engaged has a right of audience or has a right to address the Court orally at the time of hearing of the case on merits. He referred to the decision rendered by the Division Bench of the Calcutta High Court in the matter of In Re, Rakhan Ojha alias Rakhal Chandra Ojha, reported in 1988 CriLJ 278. Supporting his above contention, learned counsel also referred to a decision rendered by the single Bench of the Delhi High Court in the matter of Smt. Indu Bala v. Delhi Administration , 1991 CriLJ 1774. He further referred to the decision of the single Bench of the Madras High Court rendered in the matter of P. S. Saravanabhavanandam v. S. Murugaiyyan , 1996 CriLJ 1540. Lastly, he also relied on the judgment of the Punjab and Haryana High Court in the matter of Kuldip Singh v. State of Haryana , 1980 CriLJ 1159.

4. Per contra, learned counsel for the first informant, referring to the decision rendered in the case of Bhagwant Singh v. Commissioner of Police , AIR 1985 SC 1285 : 1985 CriLJ 1521 argued that on the analogy of given opportunity to the first informant to hear him at the time of Magistrate deciding not to take cognizance of the offence under sub-section(2) of S.173, the first informant must be given an opportunity of hearing in a matter under S.438, CrPC. Learned counsel further tried to develop his arguments referring to para 13 of the decision rendered in the matter of Puran v. Rambilas , AIR 2001 SC 2023 : 2001 CriLJ 2566 that when a petition under S.439(2)