1984 JTR(SC) 104
1984 AIR(SC) 991 ; 1984 86 BomLR 405 ; 1984 CriLR 228 ; 1984 1 Crimes(SC) 926 ; 1984 CrLJ 819 ; 1984 EastCrC(SC) 226 ; 1984 1 Scale 583 ; 1984 3 SCC 86 ; 1984 SCC(Cri) 411 ; 1984 3 SCR 412
SUPREME COURT OF INDIA
D.A. DESAI, R.S. PATHAK; O. CHINNAPPA REDDY; A.P. SEN AND BALAKRISHNA ERADI, JJ.
R.S. Nayak, Petitioner
Versus
A.R. Antulay, Respondent.
Criminal Misc. Petns. Nos. 1740 and 2217 of 1984 (for Directions). In Criminal Appeal No. 356 of 1983
Decided on 5-4-1984.
AND
P.S. Samant, Petitioner
Versus
A.R. Antulay, Respondent.
Advocates appeared
Mr. Ram Jethmalani, Sr. Advocate; Miss. Rani Jethmalani, Mr. Naresh Jethmalani and Mr. J. Wad Advocates with him, for Petitioner; Mr. A. K. Sen, Sr. Advocate; Mr. M. N. Shroff, Mr. Dalveer Bhandari, Advocates with him, for Respondent.
Act Referred :CRIMINAL LAW AMENDMENT ACT : S.8(1), S.8(3), S.5(1)
(A) The Criminal Law Amendment Act, 1952, Sections 8(1), 8(3), and 5(1) govern the procedure when cognizance of an offence is taken by a Magistrate otherwise than on a police report. Section 8(1) enables a Magistrate to summon an accused and direct proceedings, while Section 8(3) deems the advocate engaged by the complainant to conduct the prosecution to be a public prosecutor, negating the need for a state-appointed prosecutor. Chapter XIX-B of the Code of Criminal Procedure, 1973 (Sections 244 to 247) prescribes the trial procedure for such warrant cases, ensuring a structured judicial process. These provisions directly apply as this Court, in Criminal Appeal No. 247 of 1983, interpreted Section 8(1) to mandate trial under Chapter XIX-B, and clarified that cognizance under Section 8(1) triggers the deeming provision in Section 8(3), placing the onus on the complainant to appoint prosecution counsel.
(B) The key legal principles are: (i) Trial of offences summoned under Section 8(1) must follow the procedure in Chapter XIX-B of the CrPC; (ii) The advocate engaged by the complainant under Section 8(3) is deemed a public prosecutor, excluding state intervention; (iii) The High Court has supervisory power to ensure correct procedure is followed during trial; (iv) The stage of discharge is not final and the trial must proceed de novo from that point.
Facts of the case:
The accused were discharged by a Special Judge in two transferred cases (Special Case No. 24 of 1982 and Special Case No. 3/83) instituted otherwise than on a police report. Following a constitutional bench order, the cases were transferred to the High Court of Bombay. A clarification petition was moved to interpret whether the trial must proceed under Chapter XIX-B and who should conduct the prosecution.
Findings of Court:
The Court held that the trial must proceed under Sections 244 to 247 of the CrPC (Chapter XIX-B) as the cases were instituted otherwise than on a police report. The discharge order was set aside, and the trial was to continue from that stage. It was clarified that the complainant must appoint the prosecution advocate, who would be deemed a public prosecutor, and there is no role for a state-appointed prosecutor.
Issues:
(i) Whether the trial of the cases must follow the procedure prescribed in Chapter XIX-B of the CrPC; (ii) Whether the state must appoint a public prosecutor or the complainant can appoint an advocate deemed as a public prosecutor.
Ratio Decidendi:
The judgment hinges on the interpretation of Sections 8(1) and 8(3) of the Criminal Law Amendment Act, 1952, read with Chapter XIX-B of the CrPC. The Court clarified that cognizance under Section 8(1) mandates trial under Chapter XIX-B, and the advocate engaged by the complainant under Section 8(3) is deemed a public prosecutor, thus resolving both procedural and prosecutorial questions.
Result:
The appeal is allowed, the discharge order is set aside, and the trial is to proceed under Chapter XIX-B of the CrPC with the complainant appointing the prosecution advocate.
(A) The Criminal Law Amendment Act, 1952, Sections 8(1), 8(3), and 5(1) govern the procedure when cognizance of an offence is taken by a Magistrate otherwise than on a police report. Section 8(1) enables a Magistrate to summon an accused and direct proceedings, while Section 8(3) deems the advocate engaged by the complainant to conduct the prosecution to be a public prosecutor, negating the need for a state-appointed prosecutor. Chapter XIX-B of the Code of Criminal Procedure, 1973 (Sections 244 to 247) prescribes the trial procedure for such warrant cases, ensuring a structured judicial process. These provisions directly apply as this Court, in Criminal Appeal No. 247 of 1983, interpreted Section 8(1) to mandate trial under Chapter XIX-B, and clarified that cognizance under Section 8(1) triggers the deeming provision in Section 8(3), placing the onus on the complainant to appoint prosecution counsel.
(B) The key legal principles are: (i) Trial of offences summoned under Section 8(1) must follow the procedure in Chapter XIX-B of the CrPC; (ii) The advocate engaged by the complainant under Section 8(3) is deemed a public prosecutor, excluding state intervention; (iii) The High Court has supervisory power to ensure correct procedure is followed during trial; (iv) The stage of discharge is not final and the trial must proceed de novo from that point.
Facts of the case:
The accused were discharged by a Special Judge in two transferred cases (Special Case No. 24 of 1982 and Special Case No. 3/83) instituted otherwise than on a police report. Following a constitutional bench order, the cases were transferred to the High Court of Bombay. A clarification petition was moved to interpret whether the trial must proceed under Chapter XIX-B and who should conduct the prosecution.
Findings of Court:
The Court held that the trial must proceed under Sections 244 to 247 of the CrPC (Chapter XIX-B) as the cases were instituted otherwise than on a police report. The discharge order was set aside, and the trial was to continue from that stage. It was clarified that the complainant must appoint the prosecution advocate, who would be deemed a public prosecutor, and there is no role for a state-appointed prosecutor.
Issues:
(i) Whether the trial of the cases must follow the procedure prescribed in Chapter XIX-B of the CrPC; (ii) Whether the state must appoint a public prosecutor or the complainant can appoint an advocate deemed as a public prosecutor.
Ratio Decidendi:
The judgment hinges on the interpretation of Sections 8(1) and 8(3) of the Criminal Law Amendment Act, 1952, read with Chapter XIX-B of the CrPC. The Court clarified that cognizance under Section 8(1) mandates trial under Chapter XIX-B, and the advocate engaged by the complainant under Section 8(3) is deemed a public prosecutor, thus resolving both procedural and prosecutorial questions.
Result:
The appeal is allowed, the discharge order is set aside, and the trial is to proceed under Chapter XIX-B of the CrPC with the complainant appointing the prosecution advocate.
JUDGMENT
DESAI, J.:—Consequent upon the order made by a Constitution Bench of this Court on February 16, 1984 in the Judgment rendered in Criminal Appeal No.356 of 1983 and Transferred Case No. 347 of 1983 along with Transferred Case No. 348 of 1983, Special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of the Special Judge, Greater Bombay (Shri R. B. Sule) were withdrawn and stood transferred to the High Court of Bombay. In compliance with the direction given in the same judgment, the learned Chief Justice of the High Court of Bombay assigned both the cases to Mr. Justice S. N. Khatri, a sitting Judge of the High Court. The learned Judge called upon the parties to appear before him on March 12, 1984. When the cases were taken up for hearing, certain preliminary objections were raised on behalf of the accused which we were told have been dealt with by the learned Judge in his order dated March 16, 1984. In respect of two issues further consideration was postponed. These issues turn upon the question of procedure to be adopted by the learned Judge in the trial of the two cases and who should be in charge of the prosecution. In our opinion, if the judgment of this Court was read with care and precision, these two questions would have hardly arisen. However, two misc. petitions were moved in this Court for clarification of the judgment so as to thwart avoidable delay in the trial of cases.
2. The operative portion of the judgment which has a bearing on the question raised reads as under:
"Therefore, Special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of Special Judge, Greater Bombay Shri R. B. Sule are withdrawa and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court".
In the penultimate paragraph of the judgment while allowing the appeal this Court directed as under:
"This appeal accordingly succeeds and is allowed. The order and decision of the learned Special Judge Shri R. B. Sule dated July 25, 1983 discharging the accused in Special Case No. 24 of 1982 and Special Case No. 3/83 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged."
3. Reading two directions together, it clearly emerges that the learned Judge has to hold trial according to the procedure prescribed in Chapter XIX-B i. e. the procedure prescribed in Sections 244 to 247 of the Code of Criminal Procedure 1973. To be precise, the learned Judge has to try the case according to the procedure prescribed for cases instituted otherwise than on police report by Magistrate. This position is clear and unambiguous in view of the fact that this Court while allowing the appeal was hearing amongst others Transferred Case No. 347 of 1983 being the Criminal Revision Application No. 354 of 1983 on the file of the High Court of Judicature at Bombay against the order of the learned Special Judge Shri R. B. Sule discharging the accused. If the criminal revision application was not withdrawn to this Court, the High Court while hearing criminal revision application could have under Section 407 Code of Criminal Procedure, 1973 transferred the Special case from which criminal revision application arose to itself for trial before itself and in such a situation the High Court under Section 407 (8), Code of Criminal Procedure, 1973 would have to follow the same procedure which the Court of Special Judge would have followed if the case would not nave been so transferred. It is not in dispute that the learned Special Judge while holding the trial was required to follow the procedure prescribed by the Code of Criminal Procedure, 1973 for trial of warrant cases by Magistrates and in the facts of this case the procedure would be in respect of cases instituted otherwise thanon police report. The trial was to proceed further from the stage when the accused was discharged. This in our opinion is obvious and needs no further clarification. Section 8 (1) of the Criminal Law Amendment Act, 1952 as interpreted by this Court in Criminal Appeal No. 247 of 1983 decided on February 16, 1984 (reported in AIR 1984 SC 718) makes this position unambiguous and abundantly clear.
4. The clarification in respect of the first point read with the judgment rendered in Criminal Appeal No. 247 of 1983 in which Section 8 (3) of the Criminal Law Amendment Act, 1952 had come in for interpretation, it follows as a corollary that if the cognizance of an offence is taken under Section 8 (1) of the Criminal Law Amendment Act, 1952 and the trial has to be held according to the procedure prescribed herein, under Section 8 (3) the learned advocate engaged by the complainant to conduct the prosecution will be deemed to be a public prosecutor. In such a situation, there is no question of the State appointed public prosecutor to conduct the prosecution. It is, therefore clarified which to some extent may appear tautologous in view of the aforementioned judgment, that it would be for the complainant to decide who would be the learned advocate in charge of the prosecution and the advocate so appointed would be deemed to be a public prosecutor.
5. Dr. Singhvi who appeared for the respondent accused submitted that in the guise of a petition for clarification, it is a covert attempt to forestall or fore close the decision on the aforementioned two points which are pending before the teamed Judge before whom both the cases are pending. There was no question of deciding the aforementioned two points afresh because the answers to them are implicit in the judgments referred to above. Dr. Singhvi had nothing to say when invited by the Court about the clarification which the Court may offer in respect of the aforementioned two questions. He left us in no doubt that he does not wish to make any submission on the question of clarification in respect of the aforementioned two questions.
6. We note that the Government of Maharashtra has entered appearance before us through Shri A. K. Sen and Shri. M. N. Shroff but no submissions were made by them.
7. Mr. Jethmalani, learned counsel for the complainant wanted this Court to consider prayers Nos. (c) and (d) in the misc. petition which we consider for the disposal of the misc petitions as irrelevant and we do not propose to deal with the same in these petitions.
8. In sum the clarification is that the learned Judge in the trial of the two cases pending before him has to follow the procedure prescribed in Sections 244 to 247 (both inclusive) included in Chapter XIX-B of the Code of Criminal P. C. 1973. It is for the complainant to decide who should be his learned advocate in charge of the prosecution and there is no question of entrusting the trial of the two cases to a State appointed public prosecutor.
Order accordingly.
For Citation: AIR 1984 SC 991