BABU Vs. STATE OF KERALA

JUDGEMENT

(1.) A learned Judge of this Court before whom this criminal revision petition came up for hearing referred the same to a Bench to consider the question whether the grant of permission under Section 302 of the Code of Criminal Procedure. 1973 for the conduct of prosecution by any person other than an Inspector of Police is to be confined to cases other than those instituted on Police report and that the Court has no power to consider an application under Section 302 in a case instituted on Police report. Two cases were registered by the Valapad Police with regard to an incident which took Place on the side of a river in Engandiyoor on 28-3-1980 in which the petitioner and another on his side sustained serious injuries while two others of the opposite party sustained serious injuries and succumbed to those injuries. On his complaint. Crime No. 73 of 1980 was registered by the Police while Crime No. 71 of 1980 was registered against the petitioner and some others with respect to the injuries sustained by the opposite party. Both cases we investigated by the Police. In Crime No. 71 of 1980 the petitioners and others were charge-sheeted. The case came up before the Court of Session and the petitioners and two others were convicted under Section 302 and sentenced to undergo imprisonment for life. The petitioner is undergoing imprisonment and the criminal appeal that has been filed against the conviction is pending before this Court. C. C. 277 of 1980 the case which has been charged by the Police after investigation of Crime No. 73 of 1980 is still pending before the Judicial Magistrate of the First Class. Kunnamkulam. The same was not transferred to the Court of Session for trial along with S. C. No. 53 of 1980. the case in which the petitioner and two others were convicted as one accused. and the criminal revision filed before this Court for the same was not pressed as one respondent therein could not be served for a long time. After the disposal of S. C No. 53 of 1980. when C. C. 277 of 1980 was taken up for trial. the petitioner who is none other than the first informant in that case filed a Criminal M. P. No. 880 of 1983 for permission under Section 302 of the Code of Criminal Procedure to engage an advocate to conduct the prosecution. But the Magistrate dismissed the same. It is the above order that has been challenged by the petitioner in this criminal revision.

(2.) THE learned Counsel for the petitioner contended that the petitioner who was the first informant in that case, is very much interested in the prosecution and a conviction in the case will benefit the petitioner and others in the criminal appeal that is pending against the conviction and sentence passed bv the Court of Session in the counter-case. The learned Counsel also pointed out that in view of the fact that a conviction in this case will adversely affect the prosecution in the pending criminal appeal the prosecution will only be lethargic in their attitude in conducting the prosecution in this case. According to the learned Counsel. Section 302 of the Code is to be invoked in' cases of this nature and the rejection of the petitioner's application by the learned Magistrate has resulted in the denial of a fair trial to the petitioner. The learned Public Prosecutor contended that permission under Section 302 of the Code can be granted only in very exceptional cases and this is not such a case. According to the learned Public Prosecutor, the petitioner could have invoked Section 301 of the Code for permission of a Pleader of his choice to assist the Public Prosecutor in the conduct of the prosecution.

(3.) IN Varkey Joseph v. State 1950 Ker LT 436 a Division Bench of the T-C High Court has held: