ROOP K SHOREY Vs. STATE

JUDGEMENT

(1.) This criminal revision is directed against the order of the learned Sessions Judge, Delhi dated the 24th December 1963 and raises the question of construction of sections 493 arid 495, Criminal Procedure Code. The first information report was lodged against the petitioner Roop K. Shorey alleging that he had committed .an offence .under section 420, Iadian Penal Code. Charge was framed in pursuance of the said first information report and the examination of the prosecution witnesses started on 2nd March, 1963, with the examination of Ram Parshad complainant. His cross-examination commenced on 5th March, 1963, and continued on 6th March, 1963. Mr. R. L. Anaad Advo- cate appeared on these days on behalf of Ram Parshad complainant. It has been alleged by the petitioner that instead of the Public Prosecutor, Mr. Anand conducted the examination-in chief of the first prosecution witness, and put all type of leading questions to him. On an objaction on behalf of the petitioner that Mr. Anand had no authority to appear on behalf of the complainant he filed his power-of-attorney on 6th March, 1963. It is furtherJ alleged that even when Ram Parshad was being crossexamined Mr. Anand took active part in conducting the prosecution and the Public Prosecutor appointed for the Court merely remained as a silent spectator. On 6th March, 1963, an application was made on behalf of the petitioner and it is necessary to refer to some of the allegations made therein. It was. infer alia. alleged in the application that (a) there was a regular Public Prosecutor appointed for the Court who was incharge of prosecution but still it was Mr. Anand who was acting and pleading on behalf of the prosecution independently: (b) there was no power or authority from the Public Prosecutor in favour of Mr. Anand entitling him to conduct the prosecution (e) Mr. Anand could not conduct the prosecution without the express permission of the Court granted to him : (d) the Public Prosecutor was not taking any active interest in the case andas merely a silent spectator; (e) constant interference by Mr. Anand was causing great prejudice to the defence ; and (f) in view of the provisions of sections 493, Criminal Procedure Code, Mr. Anand was not competent to conduct the prosecution. Areply was filed on behalf of the complainant on 16th March, 1963. and it was inter alia stated therein that an. application was made to Shri Baldev Raj, Magistrate First Class, for grant of permission to Shri Anand to conduct the prosecution and Shri .Baldev Raj announced an order that he had granted permission but the complainant was not aware that there was no such order in writing.' It was not necessary that permission under section 495 should have been granted in writing. The objections raised by the petitioner were belated and, therefore, could not be entertained. This reply has been signed by Shri l. M. Lal Advocate and submitted in reply to the written arguments filed in the Court on behalf of the petitioner. There is another reply which is dated 15th March, 1963 signed by Shri S. N. Anand Advocate owhich reliance has been placed by both the sides. This reply is not available on the record and a copy thereof has been supplied by Shri S. N. .Anand the learned counsel for the respondent. It is inter aha stated in the said reply that (a) Shri Ram Lal Anand had been handling the proceedings ceedings for the last over five years. On 15th February, 1958, the complainant., by an application sought the permission of the Court to have this case conducted by a counsel of his choice. He mentioned the name of Shri Anand and prayed for adjournment of the case as Shri Anand needed copies of tlie material under section ,173, Criminal Procedure Code and the case was actually adjourned. Again on 17th February, 1958, the case was adjourned, at the request of Shri Anand because he was busy in another case. Tlie petitioner filed an application under section 561 Criminal Procedure Code for quashing the proceedings pending in the trial Court and this application was also opposed by Shri Anand. In the circumstances the permission should be taken to have been granted to Mr. Anand to conduct the prosecution; (b) no order or permission could be shown to the Court because the record for the year 1958 was not available on the Judicial file of the trial Court, but there was an irrebuttable presumption of law about the official acts having been regularly done ; and (e) the Court Inspector was always present when the case was taken up but he did not take any active part in the proceedings because Shri Anand continued to be incharge of the prosecution case.

(2.) Mr. Balraj Trikha the learned counsel for the petitioner has very strongly relied on paragraphs 3 and 5 of the said reply which according to the learned counsel is an admission of the fact that Shri R. L. Anannd was conducting the prosecution. The learned trial Magistrate, however, dismissed the application of the petitioner. Accoding to him the pivotal point in the case was whether or not permission had been granted to Mr. Anand for conducting the case on behalf of the prosecution. That, as I shall discuss later, was in the circumstances, not the correct apporach to the problem but the matter proceeded mainly on these lines both before the trial Court and the learned Sessions Judge. Aggrieved by the order of the trial Magistrate the petitioner tiled revision before the Sessions Judge, Delhi, which was dismissed by his order dated 24th December, 1963. Before the learned Sessions Judge it was inter aha contended that permission had been granted by Shri Baldev Raj, Magistrate, who was initially trying the case. In view of this assertion on the part of the complainant the learned Sessions Judge by his order dated 3rd August, 1963 directed that statement of Shri Baldev 'Raj. Magistrate, be recorded. The said statement was accordingly - recoded by Shri V.P. Dhir, Magistrate. Shri Baldev Raj stated that he 'had not given any permission in writing or verbally to Shri Ram Lal Anand to appear for the prosecution. He also stated that he had given no permission to the complainant to engage Shri R. L. Anand as a counsel for the prosecution. I will, therefore, assume that no permission had been given to Mr. Anand as allged in the reply. The learned Sessions Judge also considered the question uf permission as crucial in the case. He said,-the crucial point that requires determination in this case is whether any permission was accorded to Shri Ram Lal Anand for conducting the case on behalf of the prosecution by Shri Baldev Raj and if not, whether the-conducting of case by Shri Ram Lal Anand on behalf of-the prosecution in the absence of any permission having been granted by the Court under S. 49$, Criminal Procedure Code, would be an illegality or irregularity curable under section 537, Criminal Procedure Code." From the various circumstances set oat in the order of the learned Sessions Judge he came to the conclusion that no prejudice had been caused to the accused and the proceedings could not be held to have been vitiated on the ground that the prosecution was conducted by Shri Anand. He accordingly dismissed the revision petition with an observation that it will he-open to the learned Magistrate to exercise his discretion whether or not to allow Shri Ram Lal Anand, Advocate, to continue to conduct . the prosecution, taking into consideration the provisions of section 495, Criminal Procedure Code.

(3.) The lerrned counsel for the petitioner has raised the following contentions (a) having regard to the provisions of section 495, Criminal Procedure Code, Mr. Anand could not appear for a private payty, the complainant, without the express permission in writting by the Magistrate trying the case ; (b) Mr. Anand filed his power of attorney on 6th March and all proceedings taken before that date stand vitiated because he had no written authority, on behalf of the complainant to appear in Court , (e) non-compliance with the provisions of sections 493 and 495 .constitutes an illegality which is not curable under section 537, Criminal Procedure Code ; and (d) even if non-compilance with the aforesaid provision be an irregularity a serious prejudice has been caused to the petitioner particularly because of the interference and the leading nature of questions by Mr. Anand and the trial is, therefore, vitiated. According to the learned counsel there would be non-compliance with section 493, Criminal Procedure Code if a private counsel conducted the proceedings and the Public Prosecutor witnessed them as a silent spectator.