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2012 (9) TMI 1243
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....bile number. It is alleged that one HC Omprakash instead impersonated himself as the complainant/first informant, and describing the incident as an accident, got a false FIR No. 198/2011 registered at P.S. Jyoti Nagar, and recorded that he could not find the petitioner or any other eye witness, despite the fact that the petitioner gave H.C. Omprakash a detailed account of the incident, told him about the incident and also disclosed the whereabouts and names of some of the offenders, at the hospital. The IO/SHO forged the petitioner's signature on a paper to frame his false statement describing the incident as a mere quarrel. This denied the petitioner the right to receive a copy of the FIR under section 154(2), Cr. P.C. as well as to receive a communication u/s 173(2)(ii), Cr. P.C. as to the action taken by the police. The IO/SHO further gave a press release mentioning the incident as only a case of road rage. Moreover, he also deliberately framed a false site map of the crime scene, omitted to find the owner of the motor cycle involved, omitted to find the nexus between ASI Satbir with the accused, and also failed to take on record even the record of the PCR van's report t....
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....damental right to equality before law. vi. An appropriate writ, order and/or directions commanding the learned ASJ to permit the petitioner to conduct prosecution by the pleader of his choice. vii. A direction to respondent no 2 to improve the law and order and to provide police protection to the petitioner and his family. Arguments of parties 3. To show that that the writ petition is maintainable, learned counsel placed reliance on K.T. Plantation v. State of Karnataka, 2011 (8) SCALE 583 where it was held that the rule of law is a basic feature of our Constitution. It was also submitted that the Supreme Court had in Tashi Delek Gaming Solutions Ltd. v. State of Karnataka and others, MANU/SC/2391/2005 : (2006) 1 SCC 442 held that access to justice is a human right. 4. As regards prayer (i), learned counsel for the petitioner placed reliance on the ratio of the decision reported as Kashmiri Devi v. Delhi Administration and Anr. MANU/SC/0237/1988 : AIR 1988 SC 1323 to contend that as there were two rival versions in respect of the same episode there should have been two different FIRs, and the investigation for those could have been carried out by the same investigating agenc....
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....wn the rights of the complainant/victim to ensure rights to the accused. Lastly, it was contended that as in India criminal justice is administered through an adversarial system, the complainant/victim ought to have a right similar to that of the accused under section 303, Cr. P.C. 7. Alternatively, it was urged that since the present case involved collusion of police officials with the accused, to ensure fairness of trial the counsel for the complainant be allowed to conduct prosecution by extending the scope of section 302, Cr. P.C. to include even a trial before a court of session. 8. Counsel for the State defended the order of the Additional Sessions Judge, stating that he had rightly denied the application for direction for further prosecution as after commencement of trial the same function can be taken care of by the trial judge in accordance with Section 311, Cr. P.C. Counsel stated that no fault could be found in Court's observation that it is well settled that the police is not de-barred from proceeding with further investigation into the matter if some incriminating evidence or material is subsequently discovered. 9. Counsel for the State, in response to the chall....
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....decision of the case. The Court cannot evade its statutory responsibility by omitting to consider whether the evidence of any witness left out by the parties is essential or not (Ram Bali v. State AIR 1952 All 289). The court may summon witnesses, and if the prosecution declines to examine them, the court may thereupon, acting on its own initiative, cause them to be produced (Satyendra v. Emperor MANU/WB/0225/1922 : A.I.R. 1923 Cal. 463). The power of the court to examine a witness as conferred by section 311, cannot be curtailed in any manner or beyond any stage, so long as the court remains seized of the matter [Gurdev Singh v. State, 1982 Cr LJ 2211 (P&H)]. 11. It is also pertinent to recollect Section 165, Evidence Act, 1872 which reads as follows: 165. Judge's power to put questions or order production.- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing: and neither the parties nor their agents shall be entitled to make any objection to any such question or ord....
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....any fresh witnesses whom the Court may think to be material. As already pointed out, even if both the prosecution and the accused do not apply for examination or re-examination, as the case may be, the Trial Court would still be competent to do so on its own motion by virtue of both section 311, Cr. P.C. and section 165, Evidence Act. 14. The Court's notice was brought to the decisions of the Supreme Court in Azija Begum (supra) and the Kashmiri Devi (supra) case. In this Court's opinion, both cases can be distinguished from the present case because in those, instead of arresting/implicating the alleged culprit, the police had in both cases arrested someone else. In the present case, we note that the accused have already been charged under section 302/34, IPC. The offence they have not been charged under and with which the petitioner is aggrieved is Section- 397, IPC. Moreover, the accused as per the police version and as per the petitioner's account are the same based on the petitioner's allegations, the FIR in this case was filed against the same accused. It is not the prosecution case that there were any persons who should have been arraigned as accused. The dec....
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.... instituted under this Code, may of right be defended by a pleader of his choice. 16. The basic ground for challenge by the petitioner is violation of Article-14 under the Constitution. It was argued that it is discriminatory to give accused the right to instruct a pleader of his choice, but not give the same entitlement to the complainant/victim. The question is not as simple as it is stated. In a criminal trial, the accusations are made by the investigating agencies, based on which the person is charged with an offence; such accusations are sought to be proved by way of evidence by the prosecution. The purpose of a criminal trial is not to convict the person charged. Instead, it is a process of finding the truth of the allegations made against the person at trial and fixing responsibility. Thus, at trial, the case is prosecuted by a Public Prosecutor (PP), on behalf of the State. The PP is expected to assist the court in arriving at the truth, and by now it is well settled that he has an independent role. 17. In this regard, the Karnataka High Court in K.V. Shiva Reddy v. State of Karnataka and Ors., MANU/KA/0204/2005 : 2005 Cri. LJ 3000, discussed the status and responsibiliti....
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.... Anr. 1999 SCC (Cri) 1277 underlined the role and duties of a Public Prosecutor as follows:- 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, the 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 a 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. 20. In Medichetty Ramakistiah v. ....
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....sibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. An upright Public Prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest. He has no client or constituency apart from the State. He is above the personal loyalty. He does not have a dual capacity. He has to safeguard public interest in prosecuting the case. Public interest also demands that the trial should be conducted in a fair manner, heedful of the rights granted to the accused under the laws of the country including code. It is no part of his obligation to secure conviction of an accused in any event or at all costs. Nor is he intended to play a partisan role or become party to the prosecution of the accused or lend support, directly or indirectly to a denial of justice or of fair trial to the accused. 20. This Court fully concurs with the above views. They highlight the strong and cogent reason behind treating differently the accused and the complainant in a criminal trial by allowing the defence to be conducted by the coun....