M. K. BALAN Vs. STATE

JUDGEMENT

(1.) THE revision petition is filed against the order of the Additional Sessions Judge, Kozhikode overruling the objections raised by the revision petitioner (25th accused) in S. C. 48 of 1987 that the advocate engaged by the private party to assist the prosecution cannot be allowed to play the dominant role in the conduct of the prosecution disregarding the statutory role of the Public Prosecutor. The extent of the power of an advocate appointed by a party vis a vis the Public Prosecutor or Assistant Public Prosecutor is the moot point to be considered in this revision.

(2.) THE right of a private person to engage a pleader to prosecute any person in any Court cannot be denied. But the question is whether such an advocate can shelve the Public Prosecutor to Assistant Public Prosecutor to the background and assume an independent role in the prosecution of the case. He cannot do so. He can only act under the directions of the Public Prosecutor or Assistant Public Prosecutor. S.301(2) postulates that if 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. As S.301(2) makes the position clear that the advocate engaged by the private person can only submit written arguments after the evidence is closed in the case, the indubitable position is that he cannot independently handle the prosecution case treating the Public Prosecutor or Assistant Public Prosecutor as a non entity. As the advocate can only act under the directions of the Public Prosecutor or Assistant Public Prosecutor, he cannot have any audience before the court.

(3.) ADVOCATE engaged by the private party can bring to the notice of the Court any act of omission or omissions by the Public Prosecutor to the detriment of the prosecution. He can bring to the notice of the Court of any case diary contradiction or omission which the Public Prosecutor or Assistant Public Prosecutor omitted to highlight or any such relevant matter crucial to the prosecution. It is always open to the advocate to assist the Public Prosecutor to conduct the case in a befitting manner and he can always render such assistance by bringing to the notice of the Court and the Public Prosecutor of any factual or legal matter concerning the case.