SHANKAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) These petitions are heard and disposed of together having regard to the common issue involved. The facts briefly stated are, the petitioner is common in these petitions. He has lodged a complaint against Respondents 2 and 3 for an offence punishable under Section 504 read with Section 34 of the Indian Penal Code, 1860 (Hereinafter referred to as IPC for brevity) and for an offence punishable under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Hereinafter referred to as 'SCST Act' for brevity) and a case has been registered by the Shahapur Police who have submitted a First Information Report to the Jurisdictional Court and a case is registered in Crime No. 43/2011. The accused had voluntarily surrendered before the Court and had sought for bail. The Court of Sessions Judge has granted bail imposing certain terms and conditions and a charge-sheet had been submitted for the offences punishable under the aforesaid sections and summons had been issued to the accused. It is alleged that the respondents again threatened the petitioner and sought to influence him with regard to the pending case and therefore, violated the bail conditions, imposed by the Sessions Court and hence, he was constrained to make an application under Section 439(2) of the Code of Criminal Procedure, 1973 (Hereinafter referred to as Cr.P.C. for brevity). The petitioner is also said to have made an application under Section 24(8) of the Cr.P.C. seeking permission to engage counsel to represent him in the prosecution of the main case, registered as Special Case No. 110/2011. The Court below has allowed the application, in part. In that, the Court below has held that the counsel appointed by the complainant could assist the Public Prosecutor to the extent of submitting written arguments after the evidence of the prosecution is closed. It is this which is sought to be questioned in the present petitions. The second of these petitions is also filed under similar circumstances. The petitioner is primarily aggrieved by the impugned order whereby the role of the counsel engaged by him is limited to the extent of filing written arguments after the evidence of the prosecution is closed and that the counsel has not been given a free hand in conducting the trial which the petitioner seeks.

(2.) The learned counsel for the petitioner would submit that the court below has failed to take into account the scope of Section 24(8) of the Criminal Procedure Code which has now been amended by the insertion of a proviso, as per Act 5/2009 with effect from 31.12.2009. The learned counsel would seek to draw attention to the Statement of Objects and Reasons, to the said Amendment Act and the very object of the amendment is lost, if a narrow interpretation is given to the scope of the "assistance" that may be provided by the counsel engaged by the victim. The Court below having thought it fit to hold that the engagement of counsel of the choice of the complainant is circumscribed by the limitation as to the prosecution of any crime being by the State and that the prosecution shall be conducted only by the Public Prosecutor and the participation of a counsel engaged by the complainant could not overstep the role assigned to the Public Prosecutor and that the counsel so engaged can only assist the Public Prosecutor and that too, only to the extent of filing written arguments after the evidence of the prosecution is closed. The learned counsel would submit that the court below, going by the tenor of Section 225 Cr.P.C. has failed to take into account the scope of the Section read with Section 301 and Section 302 of the Code of Criminal Procedure whereby it is sought to be canvassed that it is not impermissible for the counsel engaged by the complainant to have a greater role in the conduct of the cases. In this regard, reliance is sought to be placed on a decision of the Madurai Bench of the Madras High Court in the case of Sathyavani Ponrani vs. Samuel Raj and another (Crl. O.P.(MD) No. 5474 OF 2010) wherein the Court has expressed its opinion as follows:

(3.) While on the other hand the learned Government Pleader would oppose the petition and would submit that from a reading of the relevant provisions, it cannot be said that the conduct of the case can be taken out of the hands of the prosecution at any point of time. It is the prosecution or the prosecutor alone who is competent to conduct the case. The assistance that may be provided by a counsel engaged by the complainant can only be restricted to assistance, which in the discretion of the prosecution, may be availed. The permission to be granted by the Court is mandatory. Such permission granted does not, however, whittle down the role of the prosecutor but only enables a counsel engaged by the complainant or the victim, to assist the prosecutor and it is always the discretion of the Court to direct or to permit the extent of assistance in arriving at the truth of the matter and in bringing an accused to book on the charges alleged, in a fair manner and therefore, the Court below having limited the permission sought for by the petitioner to the extent as provided in the impugned order, cannot be said to be bad in law and that notwithstanding the amendment to Section 24(8), the principle that the State alone is competent to prosecute the accused is not taken away and hence, he would submit that the petitions be rejected.