BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07/07/2010
CORAM
THE HONOURABLE MR. JUSTICE M.M.SUNDRESH
CRL.O.P.(MD)NO.5474 OF 2010
Sathyavani Ponrani .. Petitioner
Versus
1.Samuel Raj
2.The State
Thro the Inspector of Police
Umachikulam PS. .. Respondents
PRAYER
Petition filed Under Section 482 Cr.P.C. to call for the records and
set aside the order dated 26.04.2010 passed by the Principal District and
Sessions Judge, Madurai made in unnumbered Petition in Cr.M.P.No.1519 of 2010
and direct the Principal District and Sessions Judge, Madurai to permit the
petitioner to put forth her arguments in the anticipatory bail petitions filed
by the respondent 1 in Cr.M.P.No.1519 of 2010.
!For Petitioner ... Mr.C.Muthu Saravanan
^For Respondent-1 ... Mrs.S.Devasena
For Respondent-2 ... Mr.L.Murugan
Government Advocate (Crl.Side)
* * * * *
:ORDER
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 No.361 of 2010 against the first
respondent, his wife and son for the alleged offence under Section 304-B and
498-A IPC. The first respondent filed an anticipatory bail application in
Cr.M.P. No.1519 of 2010 and an application was filed by the petitioner seeking
to intervene in order to putforth his objections. The said application was
dismissed even without numbering by the Principal District and Sessions Judge,
Madurai holding that such an application is not maintainable in view of the
provision contained under Section 301 of the Criminal Procedure Code. After the
dismissal of the said application the first respondent has withdrawn the
anticipatory bail application and filed another application before the Hon'ble
High Court and thereafter granted anticipatory bail on a consideration of the
materials available before it.
10.The learned counsel for the petitioner submitted that even though
the first respondent has been granted anticipatory bail the order passed by the
learned Principal District and Sessions Judge, Madurai is illegal and the same
is liable to be set aside. More so, the said order will stand in the way of the
petitioner in opposing the application for bail or anticipatory bail as the case
may be for the other accused. It is further submitted by the learned counsel
that in as much as a legal issue has been raised the same has to be decided.
Considering the said submissions and the issue involved, this Court is of the
view that the same has to be decided by this Court.
Scope of Section 438 of the Code of Criminal Procedure:
11.Under Section 438 of the Code of Criminal Procedure, concurrent
jurisdiction has been conferred upon the Sessions Court as well as the High
Court to consider an application for anticipatory bail. The said consideration
of the application is the discretion of the Court concerned. However the said
discretion is a judicial discretion. When a Court exercises discretion which is
judicial in nature, the Court has to consider the materials before it, which can
be produced by the prosecution, accused, as well as the victim. While
considering the said request for anticipatory bail, the Court has to find out
whether a case has been made out by the accused. Therefore it is for the accused
to satisfy the Court about the need to grant an anticipatory bail.
12.In SHRI GURBAKSH SINGH SIBBIA AND OTHERS v. STATE OF PUNJAB
(1980) 2 SCC 565, a larger Bench of the Hon'ble Apex Court has considered the
Scope of Section 438Cr.P.C. The Hon'ble Apex Court has observed as follows:
"35......Section 438(1), therefore, cannot be invoked on the basis of
vague and general allegations, as if to arm oneself in perpetuity against a
possible arrest. Otherwise, the number of applications for anticipatory bail
will be as large as, at any rate, the adult populace. Anticipatory bail is a
device to secure the individual's liberty; it is neither a passport to the
commission of crimes nor a shield against any and all kinds of accusations,
likely or unlikely."
13.Therefore, on a consideration of the above said principles, a
person seeking anticipatory bail will have to make out a case.
Scope of Section 301 of the Code of Criminal Procedure:
14.Section 301 is defined under Chapter 24 of the Code of Criminal
Procedure. The said section is a general provision for the Appearance of the
Public Prosecutor regarding inquiries and trials.
15.In order to examine the Scope of Article 301 Cr.P.C., it is
useful to extract the same and accordingly the same is extracted hereunder:
"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."
16.A reading of the said section would show that in a Court of
Session it is only the Public Prosecutor who shall conduct the prosecution.
However if a private person instructs the pleader such a pleader so instructed
shall act only under the directions of the Public Prosecutor and with the
permission of the Court may submit written arguments after the evidence is
closed. Therefore the role of pleader is very much limited under Section
301Cr.P.C. in as much as he can only act under the directions of the Public
Prosecutor and can submit written arguments after the evidence is closed.
17.The said provision has been introduced on the premises that an
offence is one against the state and therefore it is the responsibility of the
state to punish the accused having committed the offence against the society. It
is further seen that under Section 302 of the Code of Criminal Procedure, a
person conducting the prosecution may do so personally or by a pleader.
Therefore under Section 302 Cr.P.C. power has been given to a person seeking to
conduct prosecution either by himself or through his pleader with the permission
of the Court. A further reading of the said section would clearly indicate that
the Court concerned can give permission to any person to conduct the prosecution
if it is satisfied.
Scope of Section 24(8) of the Code of Criminal Procedure:
18.Section 24 is a specific provision under Chapter 2 of the Code of
Criminal Procedure. Section 24 of the Code of Criminal Procedure speaks about
the appointment and functions of Prosecutors. Proviso to Section 24(8) has been
inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009)
with effect from 31.12.2009 which is extracted hereunder:
"24(8).The Central Government or the State Government may appoint, for the
purposes of any case or class of cases, a person who has been in practice as an
advocate for not less than ten years as a Special Public Prosecutor:
[Provided that the Court may permit the victim to engage an advocate of
his choice to assist the prosecution under this sub-section.]"
Section 2(q) defines "pleader" as thus:
"2(q) "pleader", when used with reference to any proceeding in any Court,
means a person authorised by or under any law for the time being in force, to
practise in such Court, and includes any other person appointed with the
permission of the Court to act in such proceeding"
19.In order to appreciate the scope and ambit of proviso under
Section 24(8) the objects and reasons of the (Amendment) Act, 2008 (5 of 2009)
will have to be seen, the same is extracted hereunder:
"2.The Notes on Clauses explain, in brief, the various provisions of the
Bill.
Amendment Act 5 of 2009-Statement of Objects and Reasons:- The need to
amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and
to tone up the criminal justice system has been felt for quite sometime. The Law
Commission has undertaken a comprehensive review of the Code of Criminal
Procedure in its 154th report and its recommendations have been found very
appropriate, particularly those relating to provisions concerning arrest,
custody and remand, procedure for summons and warrant- cases, compounding of
offences, victimology, special protection in respect of women and inquiry and
trial of persons of unsound mind. Also, as per the Law Commission's 177th report
relating to arrest, it has been found necessary to revise the law to maintain a
balance between the liberty of the citizens and the society's interest in
maintenance of peace as well as law and order.
2.The need has also been felt to include measures for preventing the
growing tendency of witnesses being induced or threatened to turn hostile by the
accused parties who are influential, rich and powerful. At present, the victims
are the worst sufferers in a crime and they don't have much role in the Court
proceedings. They need to be given certain rights and compensation, so that
there is no distortion of the criminal justice system. The application of
technology in investigation, inquiry and trial is expected to reduce delays,
help in gathering credible evidences, minimise the risk of escape of the remand
prisoners during transit and also facilitate utilisation of police personnel for
other duties. There is an urgent need to provide relief to women, particularly
victims of sexual offences, and provide fair-trial to persons of unsound mind
who are not able to defend themselves.
3.The Code of Criminal Procedure (Amendment) Bill, 2006 seeks to achieve
the above objectives."
20.A perusal of the said objects and reasons would exemplify that
the said proviso has been introduced in order to help the victims to give a more
active role in the dispensation of criminal justice. In other words, the purpose
of the proviso is to have active participation of the victim in the justice
delivery system. Afterall it is he who sets the criminal law into motion and it
is he who is the affected party. A reading of the said proviso under section
24(8) of the Code of Criminal Procedure would clearly show that the Court
concerned can permit the victim to engage an advocate of his choice to assist
the prosecution.
Role of the Lawyer:
21.In DELHI DOMESTIC WORKING WOMEN'S FORUM v. UNION OF INDIA AND
OTHERS [(1995) 1 SCC 14], the Hon'ble Apex Court was dealing with the legal
assistance to be provided to a victim of rape. The Hon'ble Supreme Court in the
said case has held that the victim of a sexual assault case will have to be
informed by the police about her right to be represented by a lawyer. It is
further observed in the said judgment that the complainant is entitled to be
provided with the legal assistance of a lawyer who is well acquainted with the
criminal justice system. Such a lawyer appointed for the complainant would have
to explain to the victim the nature of the proceedings, to prepare her for the
case and to assist her both in the police station and in the Court. He also has
to provide assistance so as to enable her to get help such as mind counselling
or medical assistance. It was also observed that a duty is cast also on the
Court upon an application by the police to appoint a lawyer. The directions
issued by the Hon'ble Apex Court are extracted hereunder:
"15. In this background, we think it necessary to indicate the broad parameters
in assisting the victims of rape.
(1) The complainants of sexual assault cases should be provided with legal
representation. It is important to have someone who is well-acquainted with the
criminal justice system. The role of the victim's advocate would not only be to
explain to the victim the nature of the proceedings, to prepare her for the case
and to assist her in the police station and in court but to provide her with
guidance as to how she might obtain help of a different nature from other
agencies, for example, mind counselling or medical assistance. It is important
to secure continuity of assistance by ensuring that the same person who looked
after the complainant's interests in the police station represent her till the
end of the case.
(2) Legal assistance will have to be provided at the police station since the
victim of sexual assault might very well be in a distressed state upon arrival
at the police station, the guidance and support of a lawyer at this stage and
whilst she was being questioned would be of great assistance to her.
(3) The police should be under a duty to inform the victim of her right to
representation before any questions were asked of her and that the police report
should state that the victim was so informed.
(4) A list of advocates willing to act in these cases should be kept at the
police station for victims who did not have a particular lawyer in mind or whose
own lawyer was unavailable.
(5) The advocate shall be appointed by the court, upon application by the police
at the earliest convenient moment, but in order to ensure that victims were
questioned without undue delay, advocates would be authorised to act at the
police station before leave of the court was sought or obtained."
22.Therefore a reading of the above said judgment would show that
even in the absence of proviso under Section 24(8) considering the nature of
offence, the Hon'ble Apex Court was pleased to issue directions fixing the duty
upon the police and the Court to provide necessary legal assistance to the
victim concerned. Hence on a consideration of the above said principle of law
and on a reading of the proviso under Section 24(8), this Court is of the
opinion that an advocate engaged by a victim will have to be permitted to take
adequate part in a criminal proceedings thereby performing his role as an
advocate representing the victim.
23.The Black Dictionary defines the "Assistance of counsel" as
under:
"Representation by a lawyer, esp. in a criminal case."
24.Therefore an advocate so engaged has to perform three different
roles. He has to render assistance to the victim who engaged him to assist the
prosecution, secondly to assist the prosecution by assisting the Public
Prosecutor who conducts the prosecution and to assist the Court being the
officer of the Court. Hence an advocate so engaged by the victim or a victim has
to perform the above said three roles which are complimentary to each other.
25.The word "Assist" is defined in Black Dictionary as follows:
"Assist. To help; aid; succor; lend countenance or encouragement to;
participate in as an auxiliary. To contribute effort in the complete
accomplishment of an ultimate purpose intended to be effected by those engaged."
26.Proviso of Section 24(8)Cr.P.C. speaks about the assistance to
prosecution. Therefore it implies that the role of the Prosecutor is also to be
shared by the victim's counsel by way of assisting the prosecution even if it is
to a limited extent.
27.The word "engage" has been defined in Black Dictionary as
follows:
"to employ or involve oneself; to take part in; to embark on"
From the above definitions it is seen that the definition of word
"engage" would mean to make oneself involve into a particular activity and to
take part. Therefore the word "engage" has got a wider import than the word
instruct.
Comparison between Section 301 and proviso under Section 24(8) Cr.P.C.:
28.The Provision under Section 24(8) and Section 301 of the Code of
Criminal Procedure are rather complimentary to each other rather than
conflicting. Proviso to Section 24(8) of the Criminal Procedure Code is in other
words an expansion of Section 301 of the Code of Criminal Procedure. Both
proviso under Section 24(8) and Section 301 Cr.P.C. will have to read together.
Engaging of an advocate should only mean "to have an effective assistance". That
is a reason why the word 'advocate' has been incorporated under Section 24. The
definition of a 'pleader' is wider which has to be read in the context of
Section 301 Cr.P.C. and the definition word "advocate" would mean an active
participation in the prosecution through a counsel. Therefore in order to
appreciate the same this Court will have to look into the object and reasons as
well as a simple interpretation of the provisions. The legislature has taken
into consideration of Section 301 Cr.P.C. while introducing the proviso to
Section 24(8).
29.Hence on a reading of Section 301 together with proviso under
Section 24(8) Cr.P.C., this Court is of the opinion that they are only
complimentary with each other by providing more access to an aggrieved party to
assist the prosecution.
30.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 restriction
under Section 301 cannot be made applicable to the procedure under Section 438
Cr.P.C. In this connection it is useful to refer the judgment of Kerala High
Court rendered in KUNHIRAMAN v. STATE OF KERALA [2005 M.L.J.(Crl.) 741] wherein
it has been held as follows:
"9..... A reading of Sec.301 Cr.P.C. would go to show that this section
relates to mainly the role of Prosecutors and their right to appear etc., in an
"inquiry, trial or appeal" before a Court. It also lays down the limited role of
private persons in such matters. But, the said section has no application to the
present case because the present proceedings is neither an "inquiry, trial or
appeal". The cases at hand are applications for anticipatory bail. Those are not
appeals, and no enquiry or trial is involved in these cases. Sec.301 applies
only in cases where there is "inquiry, trial or appeal" and hence it has no
application to an application for anticipatory bail. The restrictions and bar
under Sec.301 Cr.P.C. cannot be applied to proceedings under Sec.438 Cr.P.C.
10.Therefore, with due respect, I hold that I cannot place reliance upon
the above decisions in the present context. Sec.438, Cr.P.C. refers to an
application for anticipatory bail. No "inquiry, trial or appeal" as contemplated
by the Code is involved in the matter. Sec.438 Cr.P.C. can be invoked by the
Court on an application made by a person who is apprehending arrest in a non-
bailable offence. On such application being made, if the Court "thinks fit"
direct that the accused be released on bail in the event of his arrest. It is
clear from the said section that it is only the satisfaction of the Court that
is relevant and crucial for giving a direction under Sec.438, Cr.P.C. The relief
under Sec.438 can be granted provided the Court "thinks fit".
11.When can the Court "think it fit" to grant anticipatory bail? The Court
will have to consider the relevant facts relating to the case to arrive at such
satisfaction. Details of the case have to be obtained from the case diary which
will be available with the Prosecutor. The Court may look into the case diary
produced by the Prosecutor, though the section does not provide for perusal of
documents. Though the section does not specify that a notice should be given to
the Public Prosecutor, the Court normally gives notice to the Public Prosecutor.
The Court hears petitioner and the Prosecutor though the section does not state
that they should be heard. But, all these are done with a view to ascertain the
relevant facts which will help the Court to take a right decision in the matter.
All these will be essential for the Court to "think it fit" to invoke Sec.438
and exercise the powers under the said section.
12.Therefore, no Court dispense with a notice to the Prosecutor in an
application under Sec.438 of the Cr.P.C., though the section does not have
distinctively contemplate issuance of notice to Prosecutor or hearing of either
the Prosecutor or the petitioner. There is nothing in the section to indicate
that the said power can be exercised by hearing the petitioner and the Public
Prosecutor alone. So, if the Court feels that one more person viz., the injured
or the aggrieved must also be heard, no provision in the code prohibits the
Court from doing so. Anyway, prohibition and restrictions in Sec.301 and other
related provisions apply not to an application under Sec.438, Cr.P.C. The power
vested in the Court under Sec.438, Cr.P.C. can be exercised by hearing the
petitioner as well as such other party as the Court may deem fit and proper,
depending on the facts and circumstances of each case."
31.The said view was also supported by the recent judgment of the
Andhra Pradesh High Court in C.S.Y.SANKAR RAO v. STATE [2010 (1) CRIMES 554].
After considering the said judgments, this Court is in respectful agreement with
the same.
32.A proviso as in the present case will have to be construed upon
his own terms. Merely because a proviso is likely to curtail the power of the
other provisions the same cannot be held to be invalid. In other words, a
proviso is independent of the main provision and therefore the same has to be
applied and given its full meaning. Therefore this Court is of the opinion that
even assuming that proviso to Section 24(8) encroachs upon the restrictions
imposed under Section 301 for the arguments sake, it has to be given effect to.
The said principle of law has also been considered by the Hon'ble Apex Court in
STATE OF KERALA v. B.SIX HOLIDAY RESORTS (P) LTD. [(2010) 5 SCC 186] wherein the
Hon'ble Apex Court has held as follows:
"32.A proviso may either qualify or except certain provisions from the
main provision; or it can change the very concept of the intendment of the main
provision by incorporating certain mandatory conditions to be fulfilled; or it
can temporarily suspend the operation of the main provision. Ultimately the
proviso has to be construed upon its terms. Merely because it suspends or stops
further operation of the main provision, the proviso does not become invalid.
The challenge to the validity of the proviso is therefore rejected."
33.Role of the prosecution is to prove the charges. There is a
difference between a Public Prosecutor and a Prosecutor. Any lawyer can be a
prosecutor. Inasmuch as the proviso to Section 24(8) which speaks about rights
of a victim by way of assistance by engaging a lawyer the same cannot be
curtailed as long as it is not contrary to the case of the prosecution.
34.A lawyer engaged to assist the prosecution under Section 24 is
not under the control of the Public Prosecutor but his role is to assist the
prosecution. The discretion of the Court is a judicial discretion while
permitting the victim to engage a lawyer to assist the prosecution. The very
purpose of engaging a lawyer would amount to assisting the victim.
35.Section 301 Cr.P.C. speaks about the power of the Public
Prosecutor to conduct the prosecution. A conjoint reading of Section 301 and
24(8) would make it clear that it is the Public Prosecutor who conducts the case
but it does not mean that a lawyer engaged by a victim shall not be allowed to
supplement the conducting of the case by the Prosecutor. A lawyer has to render
his assistance in three different ways. He has to render assistance to the
victim, to the prosecution and as an officer of the Court.
36.It is the sole prerogative of the public prosecutor to pick,
choose and examine a prosecution witness. However if the public prosecutor fails
in the above mentioned duty either accidentally or designly in the opinion of
the Court, then in such a circumstance 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.
37.Therefore this Court is of the opinion that a combined of Section
301 and proviso under Section 24(8) would make it clear that a lawyer can be
engaged to argue and in an appropriate case with the permission of the Court to
examine the witness.
38.Further a reading of the above said provisions would show that
Section 301 speaks about the instructing a pleader whereas Section 24(8) proviso
speaks about engaging a lawyer. Therefore under Section 301 a party can instruct
whereas under Section 24(8) proviso a victim can engage a lawyer and conduct the
case along with the Public Prosecutor.
39.Hence considering the same, this Court is of the opinion that the
proviso under Section 24(8) will have to be given its full and actual meaning,
considering the legislative intent for its introduction.
Statements and Objects:
40.It is a well settled principle of law that in order to interpret
the provision in a given case, the statements and objects can also be looked
into. In K.P.VARGHESE v. ITO [(1981) 4 SCC 173], the Hon'ble Apex Court has
observed as follows:
"36.In K.P.Varghese v. ITO [(1981) 4 SCC 173] this Court while rejecting
the argument of the Revenue that rule of strict construction should be applied
for interpreting Section 52(2), referred to the Statement of Objects and Reasons
contained in the Bill presented before Parliament, speech made by the Finance
Minister and observed:(SCCp.184, para8)
"8. ...Now it is true that the speeches made by the Members of the
Legislature on the floor of the House when a Bill for enacting a statutory
provision is being debated are inadmissible for the purpose of interpreting the
statutory provision but the speech made by the Mover of the Bill explaining the
reason for the introduction of the Bill can certainly be referred to for the
purpose of ascertaining the mischief sought to be remedied by the legislation
and the object and purpose for which the legislation is enacted. This is in
accord with the recent trend in juristic thought not only in western countries
but also in India that interpretation of a statute being an exercise in the
ascertainment of meaning, everything which is logically relevant should be
admissible."
41.Similarly in CHERN TAONG SHANG v. COMMANDER S.D.BAIJAL [(1988)
1SCC 507], it is held as follows:
"37.In Chern Taong Shang v. Commander S.D.Baijal [(1988) 1SCC 507]the
Court referred to the object sought to be achieved by enacting the Maritime
Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981 i.e.
preventing the illegal poaching of fishes by foreign vessels including foreign
vessels chartered by Indian parties by providing deterrent punishment to protect
Indian fishermen and observed: (SCC p.516, para 26)
"26.It is pertinent to mention that in interpreting a statute the court
has to ascertain the will and policy of the legislature as discernible from the
object and scheme of the enactment and the language used therein. Viewed in this
context it is apparent that the said Act has been made with the sole purpose of
preventing poaching of fishes by foreign vessels chartered by Indian citizens
within the exclusive economic zone of India as specified in Rule 8(1)(q) of the
Maritime Zone of India Rules as amended in 1982 as well as in breach of
provisions of the said Act and the terms and conditions of permit issued under
Section 5 of the said Act.
38.In Utkal Contractors and Joinery (P) Ltd. v. State of Orissa [(1987) 3
SCC 279 the Court interpreted the provisions of the Orissa Forest Produce
(Control of Trade) Act, 1981 and observed: (SCC pp.288-89, para 9)
"9. ... A statute is best understood if we know the reason for it. The
reason for a statute is the safest guide to its interpretation. The words of a
statute take their colour from the reason for it. How do we discover the reason
for a statute? There are external and internal aids. The external aids are
Statement of Objects and Reasons when the Bill is presented to Parliament, the
reports of committees which preceded the Bill and the reports of Parliamentary
Committees. Occasional excursions into the debates of Parliament are permitted.
Internal aids are the Preamble, the scheme and the provisions of the Act. Having
discovered the reason for the statute and so having set the sail to the wind,
the interpreter may proceed ahead. No provision in the statute and no word of
the statute may be construed in isolation. Every provision and every word must
be looked at generally before any provision or word is attempted to be
construed. The setting and the pattern are important. It is again important to
remember that Parliament does not waste its breath unnecessarily. Just as
Parliament is not expected to use necessary expressions, Parliament is also not
expected to express itself unnecessarily. Even as Parliament does not use any
word without meaning something. Parliament does not legislate where no
legislation is called for. Parliament cannot be assumed to legislate for the
sake of legislation; nor can it be assumed to make pointless legislation.
Parliament does not indulge in legislation merely to state what it is
unnecessarily to state or to do what is already validly done. Parliament may not
be assumed to legislate unnecessarily."
39. In Gurudevdatta VKSSS Maryadit v. State of Maharashtra [(2001) 4 SCC
534] a three-Judge Bench of the Hon'ble Supreme Court interpreted the provisions
of the Maharashtra Cooperative Societies Act, 1960, the Maharashtra Cooperative
Societies (Second Amendment) Ordinance, 2001 and observed: (SCC pp.549-50, paras
19 & 21)
"19. Further, after introduction of the Bill and during the debates
thereon before Parliament, if a particular provision is inserted by reason of
such a debate, question of indication of any object in the Statement of Objects
and Reasons of the Bill does not and cannot arise. The Statement of Objects and
Reasons needs to be looked into, though not by itself a necessary aid, as an aid
to construction only if necessary. To assess the intent of the legislature in
the event of there being any confusion, Statement of Objects and Reasons may be
looked into and no exception can be taken thereto - this is not an indispensable
requirement but when faced with an imperative need to appreciate the proper
intent of the legislature, statement may be looked into but not otherwise. ?
* * *
21. While the Statement of Objects and Reasons in the normal course of
events cannot be termed to be the main or principal aid to construction but in
the event it is required to discern the reasonableness of the classification as
in Shashikant Laxman Kale v. Union of India [(1990) 4 SCC 366] Statement of
Objects and Reasons can be usefully looked into for appreciating the background
of the legislature's classification."
42.The pronouncement of the Apex Court in A.MANJULA BHASHINI v.
A.P.WOMEN'S COOP. FINANCE CORPN. LTD. [(2009) 8 SCC 431] wherein it has been
observed as follows:
"40.The proposition which can be culled out from the aforementioned
judgments is that although the Statement of Objects and Reasons contained in the
Bill leading to enactment of the particular Act cannot be made the sole basis
for construing the provisions contained therein, the same can be referred to for
understanding the background, the antecedent state of affairs and the mischief
sought to be remedied by the statute. The Statement of Objects and Reasons can
also be looked into as an external aid for appreciating the true intent of the
legislature and/or the object sought to be achieved by enactment of the
particular Act or for judging reasonableness of the classification made by such
Act."
43.The Apex Court in TIKA RAM v. STATE OF UTTAR PRADESH [(2009) 10
SCC 689] also took note of the statement of objects and reasons while construing
the provisions of the land Acquisition Act. Therefore considering the objects
and reasons which led to the introduction of the proviso under Section 24(8)
this Court is of the opinion that the same has to be construed to mean that the
victim or a victim will have to be permitted to assist the prosecution by
engaging a lawyer of his choice.
Principles of purposive, harmonious and literal constructions:
44.When there are two provisions which are stated to be in conflict
with each other then the principle of purposive construction will have to be
adopted so as to make both the provisions workable. In other words such an
interpretation will have to give meaning to the purpose and the object that is
sought to be achieved. In order to give a proper interpretation the Court will
have to find out the intention of the legislature and avoid a construction which
will lead to absurdity by making the provisions nugatory.
45.A statute has to be read in its entirety and not in isolation.
Further a provision of law has to be seen in the context in which it is
introduced. In a recent judgment in ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE
OF MAHARASHTRA [(2010) 5 SCC 246], the Hon'ble Apex Court has observed as
follows:
"74. Before we proceed to analyse the provisions of the two statutes in order to
ascertain whether they are repugnant or not, we may note that it is well settled
that no provision or word in a statute is to be read in isolation. In fact, the
statute has to be read as a whole and in its entirety. In RBI v. Peerless
General Finance & Investment Co. Ltd. [(1987) 1 SCC 424], this Court while
elaborating the said principle held as under: (SCC p.450, para 33)
"33. Interpretation must depend on the text and the context. They are the
bases of interpretation. One may well say if the text is the texture, context is
what gives the colour. Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation match the
contextual. A statute is best interpreted when we know why it was enacted. With
this knowledge, the statute must be read, first as a whole and then section by
section, clause by clause, phrase by phrase and word by word. If a statute is
looked at, in the context of its enactment, with the glasses of the statute-
maker, provided by such context, its scheme, the sections, clauses, phrases and
words may take colour and appear different than when the statute is looked at
without the glasses provided by the context. With these glasses we must look at
the Act as a whole and discover what each section, each clause, each phrase and
each word is meant and designed to say as to fit into the scheme of the entire
Act. No part of a statute and no word of a statute can be construed in
isolation. Statutes have to be construed so that every word has a place and
everything is in its place."
46.In BANGALORE WATER SUPPLY v. A.RAJAPPA [AIR 1978 SC 548], the
Hon'ble Apex Court has observed as follows:
"Perhaps with the passage of time, what may be described as the extension
of a method resembling the "armatures rule" in the constitution of wills. Judges
can more frankly step into the shoes of the legislature where an enactment
leaves its own intentions in much too nebulous or uncertain a state."
47.In CHANDRA MOHAN v. STATE OF UTTAR PRADESH [1967 (1) SCR 77 (AIR
1966 SC 1987), the Hon'ble Apex Court has observed that:
"The fundamental rule of interpretation is that in construing the
provisions of the Constitution or the Act of the Parliament, the Court "will
have to find out the express intention from the words of the Constitution or the
Act as the case may be ....." and eschew the construction which will lead to
absurdity and give rise to practical inconvenience or make the provisions of the
existing law nugatory."
48.JUSTICE FRANKIN IN GUISEPPI v. WALLING, 144F (2d) 608 (pp 620),
has observed as follows:
"The necessary generality in the wordings of many statues, and ineptness
of drafting in others frequently compels the Court, as best at they can, to fill
in the gaps, an activity which no matter how one may label it, is in part
legislative. Thus the Courts in their way, as administrators, in their way
perform the task of supplementing statutes. In the case of Courts we call it
"interpretation" or "filling the gaps" in the case of administrators we call it
"delegation" or authority to supply the details."
49.JUSTICE G.P.SINGH IN PRINCIPLES OF STATUTORY INTERPRETATION, 12th
EDITION AT P.298 SAYS THUS:
"... a statute must be read as a whole as words are to be understood in
their context. Extension of this rule of context permits reference to other
statues in pari materia i.e. statutes dealing with the same subject-matter or
forming part of the same system."
Sections 79-A, 79-B and 80 of the Land Reforms Act, therefore, have to be
read together with Section 95 of the Land Revenue Act as all these provisions
deal with the same subject-matter, namely, agricultural lands. We therefore hold
that the law permitted the grant of the agricultural land in favour of the
Sangha for house sites on payment of conversion fine and the grant made by the
State Government in favour of the Sangha by the Order dated 15.06.1979 was not
void ab initio on this count."
50.The said observations of the Justice G.P.Singh was quoted with
approval by a recent judgment of the Apex Court in S.NAGARAJ v. B.R.VASUDEVA
MURTHY [(2010) 3 SCC 353] while construing the principle of harmonious
construction.
51.A literal interpretation is not the only way of interpretation.
One has to consider the circumstances under which a provision of law has been
made to find out the actual meaning. In this connection, the following passage
in R.L.ARORA v. STATE OF U.P. [AIR 1964 SC 1230] is extracted hereunder:
"9. ... Further, a literal interpretation is not always the only
interpretation of a provision in a statute and the court has to look at the
setting in which the words are used and the circumstances in which the law came
to be passed to decide whether there is something implicit behind the words
actually used which would control the literal meaning of the words used in a
provision of the statute. It is permissible to control the wide language used in
a statute if that is possible by the setting in which the words are used and the
intention of the law-making body which may be apparent from the circumstances in
which the particular provision came to be made."
The said ratio laid down by the Hon'ble Apex Court has been quoted
with approval in SURJIT SINGH v. MAHANAGAR TELEPHONE NIGAM LIMITED [(2009) 16
SCC 722].
52.Hence on a consideration of the above said principles and
applying the same to the issue involved, this Court is of the opinion that there
cannot be any bar for a victim to engage a lawyer and permit him to conduct the
case by way of assisting the prosecution.
Definition of Victim:
53.To participate in a criminal proceeding 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 any one 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. In a case where the Victim is no more it cannot be said no
application can be filed by any body seeking to invoke the proviso to Section
24(8) of the Code of Criminal Procedure. Moreover when a victim is not capable
of prosecuting a case then he has to be represented by another person. Lord
Denning, in the notable case of the Attorney-General of the Gambia v. Pierra
Sarr N' Fie, spoke thus:
"....the words 'person aggrieved' are of wide import and should not be
subjected to a restrictive interpretation. They do not include, of course, a
mere busybody who is interfering in things which do not concern him"
54.Similarly Prof. S.A. de Smith takes the same view:
"All developed legal systems have had to face the problem of adjusting
conflicts between two aspects of the public interest - the desirability of
encouraging individual citizens to participate actively in the enforcement of
the law, and the desirability of encouraging the professional litigant and the
meddlesome interloper to invoke the jurisdiction of the courts in matters that
do not concern him."
55.In R.RATHINAM v. STATE [AIR 2000 SCC 1851] the Hon'ble Supreme
Court has permitted lawyers to file an application for cancellation of bail even
though they do not have anything in the case personally. The said judgment of
the Apex Court was quoted with approval in PURAN v. RAMBILAS [(2001) 6 SCC 338]
wherein the Apex Court has observed as follows:
"14. Mr Lalit next submitted that a third party cannot move a petition for
cancellation of the bail. He submitted that in this case the prosecution has not
moved for cancellation of the bail. He pointed out that the father of the
deceased had moved for cancellation of the bail. He relied upon the cases of
Simranjit Singh Mann v. Union of India [(1992) 4 SCC 653] and Janata Dal v. H.S.
Chowdhary [(1991) 3 SCC 356]. Both these cases dealt with petitions under
Article 32 of the Constitution of India whereunder a total stranger challenged
the conviction and sentence of the accused. This Court held that neither under
the provisions of the Criminal Procedure Code nor under any other statute is a
third-party stranger permitted to question the correctness of the conviction and
sentence imposed by the court after a regular trial. It was held that the
petitioner, who was a total stranger, had no locus standi to challenge the
conviction and the sentence awarded to the convicts in a petition under Article
32. The principle laid down in these cases has no application to the facts of
the present case. In this case the application for cancellation of bail is not
by a total stranger but it is by the father of the deceased. In this behalf the
ratio laid down in the case of R. Rathinam v. State by DSP [(2000) 2 SCC 391]
needs to be seen. In this case bail had been granted to certain persons. A group
of practising advocates presented petitions before the Chief Justice of the High
Court seeking initiation of suo motu proceedings for cancellation of bail. The
Chief Justice placed the petitions before a Division Bench. The Division Bench
refused to exercise the suo motu powers on the ground that the petition
submitted by the advocates was not maintainable. This Court held that the frame
of sub-section (2) of Section 439 indicates that it is a power conferred on the
courts mentioned therein. It was held that there was nothing to indicate that
the said power can be exercised only if the State or investigating agency or a
Public Prosecutor moves a petition. It was held that the power so vested in the
High Court can be invoked either by the State or by any aggrieved party. It was
held that the said power could also be exercised suo motu by the High Court. It
was held that, therefore, any member of the public, whether he belongs to any
particular profession or otherwise could move the High Court to remind it of the
need to exercise its power suo motu. It was held that there was no barrier
either in Section 439 of the Criminal Procedure Code or in any other law which
inhibits a person from moving the High Court to have such powers exercised suo
motu. It was held that if the High Court considered that there was no need to
cancel the bail then it could dismiss the petition. It was held that it was
always open to the High Court to cancel the bail if it felt that there were
sufficient reasons for doing so."
56.A reading of the above said judgment would clearly show that in a
given case even a third party could be permitted to file appropriate application
to cancel the bail. Therefore the definition of victim would mean a person who
represents the victim like a natural guardian or other guardian or a guardian of
a person of unsound mind or even a third party, when the victim is so poor,
illiterate and dependent to the extent of requiring support from others and not
able to prosecute on his own.
Reasons for the victim's participation:
57.It is to be seen that an application for anticipatory bail is
normally filed at the stage of investigation. It is the informant who is the
best person to furnish the materials before the Court so as to enable the Court
to come to conclusion as to whether an application for anticipatory bail is to
be granted or not. It is further to be seen that a victim is a part of the
criminal justice. The case of the prosecution primarily based upon the victim or
the person who sets the case in motion. After-all the prosecution takes up the
case of the victim and such a victim is part of the society. While a decision of
the competent criminal Court does not affect the society directly it does so for
the victim.
58.When a bail or anticipatory bail is granted by a Court of session
the same is amenable to be cancelled at the instance of the de-facto complainant
before the High Court under Section 482 Cr.P.C. Similarly, in a criminal
proceedings which is sought to be quashed the de-facto complainant is to be
heard. A transfer application can also be filed by a victim. If that is the
position it cannot be said that such a person shall not be allowed to conduct
the prosecution along with the Public Prosecutor by supporting the case of the
prosecution. Further such situations as envisaged earlier would not arise if
only a victim is allowed to participate in a criminal proceeding before the
trial Court.
59.In M/S.J.K.INTERNATIONAL v. STATE, GOVT. OF NCT OF DELHI [2001
CRI. L.J. 1264] the Hon'ble Apex Court was pleased to observe that when a
complaint initiated at the behest of the de-facto complainant is sought to be
quashed by the accused person then the said de-facto complainant is entitled to
be heard. The said ratio laid down by the Hon'ble Apex Court has been followed
in the subsequent decisions.
60.Therefore considering the above said factors, this Court is of
the opinion that no prejudice would be caused and in the interest of justice
with a view to sustain the public confidence in the criminal jurisprudence a
victim will have to be permitted in a given case to engage a lawyer and present
his case along with the Public Prosecutor.
61.The issue can be looked from the another angle as well. When a
complaint is given and the same is closed by forwarding the report by the police
that no case has been made against the proposed accused the Magistrate concerned
after the receipt of the notice under Section 173(2) of the Cr.P.C. will have to
issue notice to the informant when he decides not to take cognizance and to drop
proceedings against the said accused.
62.The Hon'ble Apex Court in GANGADHAR JANARDAN MHATRE v. STATE OF
MAHARASHTRA [(2004) 7 SCC 768] has observed that on the basis of the police
report the informant is entitled to get a notice from the Magistrate. Therefore
when the informant is made to be heard at the stage of investigation then it
cannot be said after the complaint has been taken on file the said informant
cannot be allowed to take part in the prosecution.
Role of the Court:
63.An investigation is different from prosecution. An investigation
is done by the concerned police whereas prosecution is done before the Court of
competent jurisdiction. A prosecution is wider in the sense that even during the
investigation process the court and the Public Prosecutor have roles to play
when the matter comes before the Court. Hence once the matter comes before the
Court then it is under its control. Conducting a free and fair trial is the duty
of the Court. The Court has to consider the request objectively for engaging a
lawyer. Therefore when such a permission is granted by exercising its power the
same can also be exercised by the Court on its own volition if it is satisfied
that further assistance is required, by calling the victim to engage a lawyer of
his choice. It would also mean that if it is of the opinion that in a given case
an assistance to prosecution is necessary for the free and fair conduct of the
proceeding then on its own motion a lawyer can be appointed to assist the
prosecution. Such a power can be exercised since it is the duty of the Court to
ensure that free and fair trial takes place.
Role of the Public Prosecutor:
64.A Public Prosecutor is an officer of the Court but there are
instances in which the Public Prosecutor is either not competent or acts only on
the instruction given by the State, as found by the Hon'ble Supreme Court in
ZAHIRA HABIBULLA H. SHEIKH v. STATE OF GUJARAT [(2004) 4 SCC 158]. It is also to
be noted more often than not a Public Prosecutor may not be aware of the facts
which the victim is in possession of. Further a Public Prosecutor is instructed
by police and not by the victim. It could also to be seen that in a changing
society the nature of offences also get changed according to the situation. That
is a reason why number of special enactments have been made such as Dowry
Prohibition Act, Negotiable Instruments Act, and Domestic Violence Act which can
be said as apart from offence against the society are also personnel in nature
inasmuch as it is the victim who can bring-forth the alleged offence in a better
way. As observed by the Hon'ble Apex Court in the judgment referred above,
justice should need not be done but appears to be done. Further inasmuch as the
victim seeks to assist prosecution there cannot be any prejudice since what is
sought to be made is only to assist the prosecution and not to replace the
prosecution. Moreover in view of the huge inflow and pendency of cases, at times
it may be possible for a Public Prosecutor to concentrate fully on a single
case.
65.The Public Prosecutor conducts the prosecution whereas a victim
ventilates his grievance. A Public Prosecutor conducts the case with a sense of
detachment whereas the victim is attached to the case. A decision made in a case
does not impact a Public Prosecutor which is not the case with the victim who is
the affected party.
Free and Fair Investigation and Trial and Article 14, 21 and 39 of the
Constitution of India.
66.Free and Fair 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 and 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 in violation of Article 14 of the Constitution.
67.The Hon'ble Apex Court in ZAHIRA HABIBULLA H. SHEIKH v. STATE OF
GUJARAT [(2004) 4 SCC 158] has observed as follows:
"36. The principles of rule of law and due process are closely linked with
human rights protection. Such rights can be protected effectively when a citizen
has recourse to the courts of law. It has to be unmistakably understood that a
trial which is primarily aimed at ascertaining the truth has to be fair to all
concerned. There can be no analytical, all-comprehensive or exhaustive
definition of the concept of a fair trial, and it may have to be determined in
seemingly infinite variety of actual situations with the ultimate object in mind
viz. whether something that was done or said either before or at the trial
deprived the quality of fairness to a degree where a miscarriage of justice has
resulted. It will not be correct to say that it is only the accused who must be
fairly dealt with. That would be turning a Nelson's eye to the needs of the
society at large and the victims or their family members and relatives. Each one
has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a
fair trial is as much injustice to the accused as is to the victim and the
society. Fair trial obviously would mean a trial before an impartial judge, a
fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in
which bias or prejudice for or against the accused, the witnesses, or the cause
which is being tried is eliminated. If the witnesses get threatened or are
forced to give false evidence that also would not result in a fair trial. The
failure to hear material witnesses is certainly denial of fair trial."
68.Similarly in TASHI DELEK GAMING SOLUTIONS LTD. v. STATE OF
KARNATAKA [(2006) 1 SCC 442, the Hon'ble Apex Court has observed as follows:
"37. If the agent was to be prosecuted for violation of the term of the
notification, he could challenge the validity thereof. A fortiori, a quia timet
application would also be maintainable. A person must be held to have access to
justice if his right in any manner whether to carry on business is infringed or
there is a threat to his liberty. Access to justice is a human right.
38. In Dwarka Prasad Agarwal v. B.D. Agarwal [(2003) 6 SCC 230] this Court
opined: (SCC pp.245-46, para 38)
"A party cannot be made to suffer adversely either indirectly or directly
by reason of an order passed by any court of law which is not binding on him.
The very basis upon which a judicial process can be resorted to is
reasonableness and fairness in a trial. Under our Constitution as also the
international treaties and conventions, the right to get a fair trial is a basic
fundamental/human right. Any procedure which comes in the way of a party in
getting a fair trial would be violative of Article 14 of the Constitution of
India. Right to a fair trial by an independent and impartial tribunal is part of
Article 6(1) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, 1950 [see Clark (Procurator Fiscal, Kirkcaldy) v. Kelly
[(2003) 1 All ER 1106(PC)]."
69.In NIRMAL SINGH KAHLON v. STATE OF PUNJAB [(2009) 1 SCC 441], the
Hon'ble Apex Court was pleased to observe that the right to fair investigation
and trial is applicable to the accused as well as the victim and such a right to
a victim is provided under Article 21 of the Constitution of India. The
observation of the Hon'ble Apex Court is extracted hereunder:
"28. An accused is entitled to a fair investigation. Fair investigation
and fair trial are concomitant to preservation of fundamental right of an
accused under Article 21 of the Constitution of India. But the State has a
larger obligation i.e. to maintain law and order, public order and preservation
of peace and harmony in the society. A victim of a crime, thus, is equally
entitled to a fair investigation. When serious allegations were made against a
former Minister of the State, save and except the cases of political revenge
amounting to malice, it is for the State to entrust one or the other agency for
the purpose of investigating into the matter. The State for achieving the said
object at any point of time may consider handing over of investigation to any
other agency including a Central agency which has acquired specialisation in
such cases."
70.Therefore on a consideration of the above said constitutional
provisions, this Court is of the opinion that the victim has got every right to
take part in the prosecution. A procedural law will have to provide a method for
the dispensation of justice by which the truth emerges. In other words, a
procedural law will be in aid of the justice delivery system.
CONCLUSION:
71.On a consideration of the above said principles and after
analysing the provisions vis-a-vis the various judgments, the following
conclusions are arrived at:
i.Section 301 Cr.P.C. is not a bar for entertaining an application to intervene
in an application filed under Section 437 or 438 Cr.P.C.
ii.Section 301 and proviso under section 24(8) are mutually complimentary and
not conflicting with each other and therefore there is no bar for engaging a
lawyer to assist the prosecution.
iii.The discretion of the Court in invoking proviso under Section 24(8) is a
judicial discretion.
iv.The judicial discretion of the Court will have to be exercised keeping in
mind the objects and reasons for the introduction of proviso to sub-section
24(8) which is to provide an adequate opportunity to the victim to take part in
the criminal proceeding.
v.Engaging a lawyer in accordance with proviso under section 24(8) would mean
permitting him to argue along with the Public Prosecutor and also in a given
case even to examine a witness, of-course with the permission of the Court.
vi.The Court shall not allow any plea contrary to the case of the prosecution at
the instance of the victim while assisting the prosecution.
vii.The Court can reject a request for engaging a lawyer by the victim if it is
of the opinion that it lacks bonafides.
viii.While considering the application, the Court has to keep in mind, the
nature of the offence, the injuries suffered by the victim, the position of the
victim as well as the accused and the circumstances under which the offence has
been committed.
ix.The word 'victim' would also include a legitimate and genuine person
representing a victim.
x.When an application is filed by any other person other than the guardian
seeking to represent the victim, the Court has to consider the bonafides,
legitimacy and genuineness of the representative capacity while deciding such an
application.
xi.In a given case the trial Court can also call upon a victim to engage a
lawyer if in its opinion the same is required for the proper conduct of the
case.
xii.In a given case the Court can on its own appoint a lawyer if it is of the
opinion the same is required for the proper conduct of case.
xiii.When an application is made seeking permission under proviso to Section
24(8) the same cannot be rejected without even numbering the same but should be
considered on merits.
xiv.An order rejecting an application seeking permission to assist the
prosecution must be supported by reasons.
72.Coming to the facts of the case, inasmuch as the 1st respondent
has already been granted anticipatory bail and he has already withdrawn the
application for anticipatory bail before the District Principal and Sessions
Court, Madurai, the question of allowing the present petition does not arise for
consideration. However if any application is filed and pending or to be filed in
future by the other accused persons either seeking anticipatory bail or bail as
the case may be, the petitioner is given liberty to file appropriate application
seeking to intervene in the said application. As and when such an application is
filed, the concerned Court is directed to number the said application and permit
the petitioner to intervene and decide the application for bail or anticipatory
bail on merits in accordance with law.
73.The Criminal Original Petition is hereby disposed of with the
above directions. Consequently, the connected miscellaneous petitions are
closed.
sri
Note: The Registry is directed to circulate a copy of this order to all the
concerned Courts so as to enable them to deal with similar circumstances and
applications filed under proviso to Section 24(8) of Code of Criminal Procedure
in future.
To
1.The Inspector of Police
Umachikulam PS.
2.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai.
