PRIVATE COUNSEL OF INFORMANT HAS NO RIGHT OF AUDIENCE IN HEARING OF BAIL PETITION OF THE ACCUSED, ARGUES BIBHU PRASAD TRIPATHY
He practices in constitutional forums of justice such as the High Court of Orissa, High Court of Delhi, and the Supreme Court of India.
He also practices in the National Green Tribunal, and National Consumer Forum.
Amidst engagements in such great ramparts of justice, he also creates time sometimes to assist the justice delivery system in solving intricacies of law.
His argument in matter of a Bail Application in the Court of the District and Sessions Judge, Cuttack fits perfectly into this page.
The Samaja, a powerful newspaper of Orissa, allegedly occupied by Servants of the People Society through fraudulent means, has become a battleground for rival fractions and the fraction that has captured the office of the Samaja is misusing its media power to browbeat the rivals through gained over police black sheep. Thus a life member of SoPS Sri Brajaraj Das @ Brajabhai and the President of the newspaper’s employees association Sri Devi Prasanna Nayak were booked by the police on cooked up charges leveled through a FIR which eventually landed the court as a G.R.Case. Bails denied in the primary Court, Das and Nayak had to prefer an application for bail in the District Court through Advocate Bibhu Prasad Tripathy.
It was shocking to see that the media house Samaja was trying to browbeat the Court by engaging a top criminal lawyer to oppose the bail application, when the Court was only to be addressed by the public prosecutor on behalf of the State. Tripathy vehemently objected to that. He argued that the private counsel for the informant has no right of audience in the Court hearing the bail application. The Court agreed.
We post here his argument in public interest.
IN THE COURT OF DISTRICT & SESSIONS JUDGE, CUTTACK
B.A. NO…………………OF 2013
(Arising out of GR Case No 465 of 2013 arising out of Cantonment PS Case No 20 of 2013 u/s 341/323/294/354/506/447 and 34 of IPC)
IN THE MATTER OF:
Braja Bhai & Another
State of Orissa
NOTE OF SUBMISSION FILED ON BEHALF OF THE ACCUSED PERSONS OBJECTING TO INFORMANTS PRIVATE COUNSEL’S INDEDPENDENT RIGHT OF AUDIENCE
That the sought questions for consideration during the time of hearing of the bail application of the accused persons was whether the informant private counsel has an independent right of audience or in other wards whether a third party/informant can present oral argument against the petition for bail filed by the accused persons?
That, Section 301 of CrPC states the following:
301. Appearance by Public Prosecutors:
(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.
(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.
That, the Hon’ble Delhi High Court in Smt. Indubala & Ors Vs Delhi Administration & Ors (1991 CrLJ 1774) in Paragraph 6 in the operative portion of the order has stated the following:
“So, it is evident that a complainant can only assist the Public Prosecutor when the proceedings are being conducted at the stage of inquiry, trial or appeal. Such a complainant can submit written arguments after the evidence is closed in the case but as far as application for grant of bail is concerned there is no provision made in the Code of Criminal Procedure that a complainant or a third party can intervene and make any submissions independently in opposing the application for grant of bail or anticipatory bail. A single Bench of Punjab and Haryana High Court in Kuldip Singh v. State of Haryana, 1980 Cri LJ 1159, also considered the provisions of S. 301 of the Code of Criminal Procedure in the same manner. Counsel for the petitioner has also made reference to Sarwan Kumar v. State of Haryana, 1989 (2) Recent Criminal Reports 459, wherein a single Judge of that Court also held that the first informant or the complainant in proceedings seeking grant of anticipatory bail neither can be considered as necessary party nor a proper party and has no locus standi to be heard. It was held that the complainant party may hold a watching brief and may bring the relevant facts to the notice of the State counsel and apart from that the complainant party has no right to be heard when particularly the State is duly represented.”
That, a Three Judges Bench of the Hon’ble Supreme Court in Shivkumar Vs Hukum Chand & Another (1999 (7) SCC 467) has categorically stated that from the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.
That in Thakur Ram Vs State of Bihar (AIR 1966 SC 911) the Hon’ble Supreme Court ruled that “in a case which has proceeded on a police report, a private party has no locus standi. It further ruled that, barring a few exceptions, in criminal matters, the aggrieved party is the State, which is the custodian of the social interests of the community at large, and so it is necessary for the State to take all steps necessary for bringing the person who has acted against the social interests of the community, to book.”
That, the Hon’ble Chhatishgarh High Court in Dr Sunil Puri Vs State of Chhatishgarh (2006 CrLJ 866) has observed in Paragraph 15 that “In the result, I hold that the counsel for the complainant or the first Informant has no right of audience in a petition filed Under Section 438, Cr. P.C. for grant of anticipatory bail. He cannot be permitted to orally address the Court. It is only the State Counsel who can be heard in opposing the bail application. However, the counsel so engaged by the first informant or the complainant can brief the State Counsel and can also make a representation on behalf of the complainant or the first informant, and can assist the State Counsel while opposing the ball application. The objection raised by the counsel for the applicant is upheld. However, in the present facts and circumstances of this particular case, it is observed that if so desired, counsel for the first informant, may file written argument at the time of hearing concluded by the counsel for the State.”
That, the Division Bench of the Calcutta High Court also held in the matter of In Re, Rakhal Ojha alias Rakhal Chandra Ojha (1988 Cri LJ 278) that “a plain reading of Sub-sections (1) & (2) of Section 301 Cr. P.C. makes it clear that if in a case which is in charge of a Public Prosecutor or Asstt. Public Prosecutor, a private person engages a lawyer, then, notwithstanding such engagement, the Public Prosecutor or Asstt. Public Prosecutor, who is in charge of the case, shall conduct the prosecution and the lawyer engaged by the private person shall act therein under the direction of the Public Prosecutor or Asst. Public Prosecutor and he can only submit written arguments and that too with the permission of the Court. It was held vide para 8 that the lawyer so engaged by a private person has no right of audience in a case which is in charge of a Public Prosecutor. This analogy derived by the Calcutta High Court appears to be based upon the language of Section 301(2) Cr. P.C. It is held that when the section Itself says that the lawyers engaged may with the permission of the Court, submit written arguments after the evidence is closed, is clear and unambiguous and there is no scope for going behind the letters of the law to hold that such a lawyer can address the Court orally also.”
That, the Hon’ble Delhi High Court in the case of Praveen Malhotra Vs State (1990 CrLJ 2184) while adjudicating a dispute relating to the third party right to intervene and the heard in opposition of bail application clearly stated that “Under Sub-section (2) of Section 301, the pleader instructed by any private person has to act under the directions of the Public Prosecutor or the Assistant Public Prosecutor. Thus it is clear that pleader of a private party can only assist the Public Prosecutor when proceedings are at the stage of inquiry, trial or appeal. After close of evidence such pleader with permission of court, can submit written arguments. The scheme of the Code is that when a case is at the stage, of enquiry, trial or appeal, the Public Prosecutor is in charge of the case. He represents the prosecuting agency before the court. Even in cases where a pleader has been instructed by a private person, such pleader has to act under the directions of the Public Prosecutor and such a pleader is included in the definition of “Public Prosecutor” as provided in Section 2(u). Thus it is evident that no pleader can be permitted to intervene or act except in the manner provided under Section 301(2) of the Code. The combine effect of Section 2(u), 24 and 301 of the Code is that a pleader engaged by a private party cannot plead though he can act and that too under the directions of the Public Prosecutor.” That in Paragraph 19 held that “it may also be noticed that the applicants have not alleged in the application that the State is not doing its duty properly in any manner. The applicants have also not sought leave to assist the State. The contention of the applicants was also not .that the Public Prosecutor has abdicated his functions. The main thrust of the argument of learned counsel for the applicant has been that the applicants have a right to intervene and make oral arguments in the bail application filed by the petitioner. For the reasons aforesaid my answer to the question is that the applicants have no right to intervene and be heard in opposition to the bail application (Cr. M. (M) 161/90).”
That, it follows in the above said Judgements that a plain reading of Section 301 of CrPC reveals that oral submissions by the informant counsel before the Court cannot be independent of the prosecutor and prosecution should not mean persecution. That it is for the said intended objective the Courts have taken an unanimously view that there is no provision in Criminal Procedure Code allowing a complainant or third party to oppose the application for grant of bail or anticipatory bail to the accused persons. Hence the private counsel for the informant does not have an independent right of audience.
By the petitioners
Bibhu Prasad Tripathy