The aforementioned appeals have been preferred by the appellants against judgment and order dated 17.05.2011 passed by learned Special Judge (SC/ST Act), Faizabad in Sessions Trial No. 11 of 2008 and Sessions Trial No. 358 of 2008 under Sections 364, 201, 302/ 120-B IPC and 3 (2) (V) SC & ST Act, PS Kotwali Ayodhaya, District Faizabad convicting and sentencing the appellants as below:
Appellant Km. Seema Azad (Appellant of Criminal Appeal No. 1055 of 2011) has been convicted and sentenced to:
(i) Under Section 364 IPC read with Section 120-B IPC for ten years' R.I. with fine of Rs. 5,000/-;
(ii) Under Section 302 IPC read with Section 120-B IPC to life imprisonment with fine of Rs.10,000/-; and,
(iii) Under Section 201 IPC read with Section 120-B IPC to two years' R.I. with fine of Rs. 2,000/-.
In default of payment of fine, appellant has been directed to further undergo two years' R.I. The sentences have been directed to run concurrently.
Appellant Anand Sen Yadav (Appellant of Criminal Appeal No. 1061 of 2011) has been convicted and sentenced to:
(i) Under Section 364 IPC read with Section 120-B IPC for ten years' R.I. with fine of Rs. 5,000/-;
(ii) Under Section 302 IPC read with Section 120-B IPC to life imprisonment;
(iii) Under Section 201 IPC read with Section 120-B IPC to two years' R.I. with fine of Rs. 2,000/-; and
(iv) Under Section 3 (2) 5 of the SC/ST Act to life imprisonment and fine of Rs. 5,000/-
In default of payment of fine, appellant has been directed to further undergo two years' R.I. The sentences have been directed to run concurrently.
Appellant Vijai Sen Yadav (Appellant of Criminal Appeal No. 1707 of 2011) has been convicted and sentenced to:
(i) Under Section 364 IPC for ten years' R.I. with fine of Rs. 5,000/-;
(ii) Under Section 302 IPC read to life imprisonment with fine of Rs. 10,000/-
(iii) Under Section 201 IPC to two years' R.I. with fine of Rs. 2,000/-
(iv) Under Section 3 (2) 5 of the SC/ST Act to life imprisonment and fine of Rs. 5,000/-
In default of payment of fine, appellant has been directed to further undergo two years' R.I. The sentences have been directed to run concurrently.
In these hotly contested appeals, the arguments were advanced by Sri I.B.Singh, Senior Advocate assisted by Sri R.B.S. Rathaur and Sri Atul Verma, on behalf of the accused-appellants,, Advocates whereas on behalf of the State, arguments were advanced by Sri R.B.S. Yadav, Additional Advocate General.
This case took a nosedive when after conclusion of arguments by the Additional Advocate General, Sri I. B. Singh, Senior Advocate, in his rejoinder reply, vehemently submitted that in the instant case, the Public Prosecutor has failed to discharge its duties properly. His sole object is to get the conviction of the appellants confirmed in the instant appeals and to achieve the object, he deliberately concealed material facts and did not depict the correct picture. According to him, the Public Prosecutor must not suppress or keep back from the Court evidence relevant to the determination of the guilt or innocence of the accused. In essence, the arguments raised by Sri Singh is that the predominant duty of a Public Prosecutor is to present the complete picture and not to withhold material facts or present partial facts.
Inviting our attention towards Section 24 of the Code of Criminal Procedure [hereinafter referred to as the 'Code' for the sake of brevity], Sri I.B.Singh, submitted that this section deals with 'Public Prosecutor' and gives power to the Central or State Government to appoint them for conducting any prosecution, appeal or other proceeding on behalf of the Central Government or the State Government, as the case may be. He further submitted that in view of the provisions of Section 24 of the Code, there must be a notification in favour of a pleader appointed as Public Prosecutor. In a lukewarm manner, he said that the Additional Advocate General is not competent to argue the appeal on its own unless there is a notification in terms of S. 24 CrPC or proper authorization. But being appointed as a Public Prosecutor, it is not expected of him 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. To substantiate his above arguments, he brought our attention towards a Supreme Court's decision rendered in Shiv Kumar vs. Hukam Chand and another, (1999) 7 SCC 467 and Chapter II of the Bar Council of India Rules.
When the aforesaid facts were brought to our notice and some doubts were canvassed with regard to notification authorizing Sri R.B.S.Yadav, Additional Advocate General to conduct criminal appeal, we deemed it proper to fathom into the matter and asked Sri R.B.S. Yadav, Additional Advocate General to produce notification appointing him as a Public Prosecutor/Special Public Prosecutor for conducting criminal matters in the High Court or any authorization by the Public Prosecutor in his behalf. Sri Yadav, hurriedly conceded that there is a notification of the State Government appointing him as Additional Advocate General, but in the same breath submitted that no notification has been issued under Section 24 of the Code appointing him either Public Prosecutor or Special Public Prosecutor for conducting the instant appeals.
In contrast, on behalf of the State, it has been contended that an appeal against acquittal or for enhancement of sentence can be filed only by the Public Prosecutor or Additional Public Prosecutor or Assistant Public Prosecutor and these persons alone can conduct the appeals, but in an appeal against order of conviction, any person can argue/conduct the appeal on behalf of the State and there is no necessity of issuing authorization or notification under Section 24 of the Code in this regard. According to him, appeals against conviction have been dealt with separately in Section 374 of the Code and there is no provision in said Section which provides that only Public Prosecutor can defend the order of conviction.
Elaborating the argument, it has been argued by the State Counsel that even the Special Public Prosecutor appointed by the State Government or the Central Government is not competent to present appeal against acquittal or for enhancement of sentence and it can only be filed by the Public Prosecutor. In rebuttal, Sri I. B. Singh contended that Special Public Prosecutors are appointed for conducting any case or class of cases by the Central or the State Government in terms of the provision of Section 24(8) of the Code and the Special Public Prosecutors are competent to present and conduct the appeals.
The term "Public Prosecutor" is defined in Section 2(u) of the Code of Criminal Procedure [hereinafter referred to as the "Code" for the sake of brevity] and reads as under:-
"'Public Prosecutor' means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor.' The punctuation comma used after the word 'under Section 24' separates the former sentence and makes the latter part of the definition independent.The punctuation comma is used for separating the words, phrases or clauses in a sentence. In other words, 'comma' indicates a slight pause in the spoken sentence and used where there is a listing of items or to separate a non-restrictive clause or phrase from a main clause. The word 'and' is used to join two identical words or phrases. Thus, it is clear that punctuation 'comma' and the word 'and' occurring in Section 2 (u) makes two sentences independent of each other.
As Public Prosecutor or Assistant Public Prosecutor for conducting criminal cases in High Court are appointed under Section 24 of the Code, it would be apt to reproduce Section 24 of the Code as under:-
"24. (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2)The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area.
(3)For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4)The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub- section (4).
(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub- section (1) or sub-section (2) or sub- section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(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.
(9)For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate."
Chapter II of the Bar Council of India Rules, towards which our attention was drawn by the Counsel for the appellants, deals with the Standards of Professional Conduct and Etiquette. Section 11 of this Chapter deals with the duty of an Advocate towards the client. Paras 15 and 16, which are relevant for the present purposes, are reproduced here-in-below:-
"15. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.
16.An advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment the innocence of the accused shall be scrupulously avoided."
(Emphasis supplied) In Shiv Kumar's case [supra], the Apex Court in paragraph 13 has observed as under:-
"From the scheme of the Code, the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by any one 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."
'Public Prosecutor' is defined in some countries as a "public authority", who, on behalf of Society and in the public interest, ensures the application of the law where the breach of the law carries a criminal sanction and who takes into account both the rights of the individual and the necessary effectiveness of the criminal system.
Thus, Prosecutors have duties to the State, to the public, to the Court and to the accused and therefore, they have to be fair and objective while discharging their duties.
The Law Commission of India in its 154th Report on 'Code of Criminal Procedure" (in chapter III, para 15) while discussing the role of Public Prosecutor quoted the decision rendered by the Kerala High Court in Babu versus State of Kerala, 1984 CrLJ 499 (Kerala High Court) which reads to the following effect:-
"Public Prosecutors are really Ministers of Justice whose job is none other than assisting the State in the administration of justice. They are not representatives of any party. Their job is to assist the Court by placing before the Court all relevant aspects of the case. They are not there to see the innocent sent to the gallows; they are also not there to see the culprits escape conviction."
Thus, from the aforesaid facts it is imminently clear that there should be on the part of the Public Prosecutor no unseemingly eagerness for or grasping at conviction. Even if the defence counsel has overlooked certain things, the Public Prosecutor has the added responsibility to bring it to the notice of the court it if comes to his knowledge. His duty as Public Prosecutor is not merely to secure the conviction of the accused at all costs but to place before the court whatever evidence is in his possession, whether it be in favour or against the accused, and to leave to the court to decide upon all such evidence whether the accused had or had not committed the offence with which he stood charged.
As regards the second limb of argument on behalf of the State that even Special Public Prosecutors are not competent to present the appeals, we are of the view that this assertion is wholly baseless. Section 24 (8) of the Code specifically empowers the Central Government/State Government to appoint a Special Public Prosecutor for conducting any case or class of cases. Therefore, Special Public Prosecutor would be Public Prosecutor for all the purposes under the Act. Our view is in consonance with the decision of the Apex Court in Assistant Commissioner of Central Excise, Hyderabad versus SABNIFE Power Systems Limited and others [2002 (9) SCC 389] wherein the Apex Court held that it is wrong to say that the Special Public Prosecutor is not a Public Prosecutor. Special Counsels are different class in themselves.
The next question to be considered by us is what will be the consequence in the absence of notification under Section 24 of the Code in favour of Sri R.B.S.Yadav, Additional Advocate General or proper authorization by the Public Prosecutor.
It may be noted that under Section 377 of the Code, the State Government is empowered to file an appeal for enhancement of sentence; and under Section 378 of the Code, an appeal in case of acquittal. Section 374 of the Code provides for filing of appeal against conviction by the convicted person (s). Section 386 of the Code provides powers of the appellate court to decide the appeal and pass orders as provided in this Section. It would be highly improper to decide an appeal without hearing the Counsel for the accused and the Advocate authorized by the State Government. If the argument of State Counsel is accepted that in an appeal against conviction, anyone can argue on behalf of the State, it will create chaos and cripple the criminal justice system. In Section 386 of the Code itself, it has been provided that the Appellate Court, after perusing the record, hearing the appellant and Pleader and the Public Prosecutor, if he appears, may decide the appeal. The Legislature has deliberately used the word 'Public Prosecutor' in all the aforementioned Sections referable to Section 2(u) of the Code, and as such, the order of conviction can be defended only by the Public Prosecutor. The word 'Public Prosecutor' used in this Section means a person appointed in terms of the provisions of Section 2 (u) of the Code. At this juncture, it would be useful to refer to a decision of the Andhra Pradesh High Court reported in AIR 1959 AP 477 Bhupalli Malliah and others versus unknown wherein the Court deprecated the practice of Public Prosecutors sitting back and permitting private counsel to conduct prosecution, in the following terms:-
"We would like to make it very clear that it is extremely undesirable and quite improper that a Public Prosecutor should be allowed to sit back, handing over the conduct of the case to a counsel, however, eminent he may be, brief by the complainant in the case."
In Empress vs. Durga ILR 1894 Allahabad 84 and the judgment of a Division Bench of the High Court of A.P. in Medichetty Ramakistiah and others vs. The State of A.P. AIR 1959 AP 659, it was held that as a principle of public policy that the Public Prosecutor shall act with a sense of detachment, without evincing any anxiety to secure a conviction and that is why the Public Prosecutor has been given the first right to appear for the prosecution in such matters.
Before proceeding further, we deem it imperative to refer section 301 and 302 of the Code which are also of some significance in this context and hence they are extracted below:-
"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 enquiry, 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."
302. Permission to conduct prosecution - (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission.
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecuting may do so personally or by a pleader."
The latter provision, referred to above, is intended only for Magisterial Courts. It enables the Magistrate to permit any person to conduct the prosecution. Unlike the above provisions, Section 301 is applicable to all the Courts of criminal jurisdiction. This distinction can be discerned from employment of the words "any Court" in Section 301. The first sub-section of 301 empowers the Public Prosecutor to plead in the Court without any written authority provided he is in charge of the case. (see Shiv Kumar versus Hukum Chand [(1999) 7 SCC 467]).
In State of Kerala v. Krishnan, 1982 CrLJ 301, the question that came up for consideration before the Madras High Court was whether the Additional Advocate General was competent to present appeal against acquittal. A Division Bench of the Madras High Court after examining the scope of Section 24 (1) and 378 (1) of the Code held that there is no indication in Article 165 that when an Advocate General appears before a civil or criminal court in the discharge of his duties as Advocate General, he will not be bound by the procedure followed by that Court. So long as the Advocate General or the Additional Advocate General is not a Public Prosecutor of the High Court neither of them can present an appeal to the High Court even if the State Government directs.
In Indu Bala vs. Delhi Administration, 1990-ILR (Del)-1-84) petitions were filed for anticipatory bail and the court was faced with the question whether to allow the complainant's advocate to argue in the proceedings of a police case. The Court held that under Section 301 CrPC, the complainant cannot be allowed to present his arguments in the proceedings and it was made clear that the complainant can only assist the Public Prosecutor when the proceedings are being conducted at the stage of inquiry, trial or appeal.
In Criminal Appeal No. 5624 of 2004;Anil Kumar vs. State of U.P.an application seeking recall of an order granting bail dated 10.11.2009 was moved by the complainant. A co-equal bench of this Court rejected the said application as not maintainable vide order dated 7.5.2012. The Court observed that the complainant has no locus-standi to move the recall application and he has no right to be heard when the State is duly represented by Government Advocate/Public Prosecutor.
The Scheme of Code is that when a case is at the stage of enquiry trial or appeal, the Public Prosecutor is in-charge of the case where a Pleader/private party has been instructed to assist the prosecution, he has to act under the directions of the Public Prosecutor. Here, it is not the case of the State that the Additional Advocate General has conducted the appeal under the directions of the Public Prosecutor or has been appointed as Special Public Prosecutor for conducting the instant appeals. It may further be added that in the aforesaid appeals, Sri R.B.S. Yadav, Additional Advocate General was being assisted by Sri Umesh Verma, Additional Public Prosecutor(I). Said, Sri Umesh Verma, being Additional Public Prosecutor is incapable to authorize Additional Advocate General to conduct the appeal.
Thus, from the plain reading of Section 2(u) and 24 of the Code, it is crystal clear that a lawyer on being appointed either Advocate General or Additional Advocate General, will not automatically become a Public Prosecutor within the meaning of Section 2(u). Moreover, Additional Advocate General is not authorized to perform any constitutional or statutory functions.[See: M.T.Khan and others vs. Government of A.P.; AIR 2004 SC 2934] When the Advocate General is appointed as Public Prosecutor under a notification issued by the State Government, he can authorize the Additional Advocate General/Deputy Advocate General by issuing a notification to act as the Public Prosecutor. A Public Prosecutor means any person appointed as such under Section 24 of the Code and includes any person acting under the direction of a Public Prosecutor. The Public Prosecutor for the High Court can be appointed (by the Central or the State Government) only after consultation with the High Court. It is only such a Public Prosecutor, who could conduct prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. Sections 24 and 301 of the Code also makes it crystal clear that the Pleader privately engaged by the complainant cannot plead although he can act under the directions of the Public Prosecutor. Section 2 (u) read with Section 301, leads to the inevitable conclusion that any person engaged and briefed by a private person to instruct the Public Prosecutor can only so instruct and act under the directions of Public Prosecutor.
In view of the aforesaid discussions and legal position, we are of the considered view that in absence of notification under any provision of Section 24 of the Code, Sri R.B.S. Yadav, Additional Advocate General has no functions to be discharged which are attributable to a Public Prosecutor. In other words, he is incompetent to conduct the appeal on behalf of the State Government.
List this appeal for hearing after Dashehra holidays.
Date: 18th October, 2012 HM/-