HAMSA Vs. ASSISTANT PUBLIC PROSECUTOR

JUDGEMENT

(1.) In a prosecution in which the Assistant Public Prosecutor is in charge, counsel for a private person sought permission of the court to conduct the examination of witnesses for the prosecution under the direction of the Assistant Public Prosecutor. But this was opposed by the accused on the ground that the examination of the witnesses cannot be conducted by anyone other than the Assistant Public Prosecutor. The question that has led the matter to this court is the propriety of the action taken by the court in permitting the conduct of examination of witnesses for the prosecution by the counsel engaged by the private person.

(2.) In a case where the conduct of the prosecution is in the hands of a Public Prosecutor or Assistant Public Prosecutor, a pleader engaged by a private person is allowed to act under the directions of such Public Prosecutor or Assistant Public Prosecutor. This is the statutory provision in S 301(2) of the Criminal Procedure Code. Who a Public Prosecutor is and who an Assistant Public Prosecutor is are defined in S.24 and 25 of the Code. Any person acting under the directions of the Public Prosecutor in accordance with S.301(2) will not become a Public Prosecutor. When the Section itself envisages a limited right to the pleader engaged by a private person to act in the matter of the prosecution, it could not be said that he has no such right. The words 'shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor' occurring in S.301(2) must necessarily relate to some positive acts. I suggested to the learned counsel for the petitioner to mention some or any of the acts which may, according to him, appropriately fall within the province of the pleader so permitted While counsel attempted to tell me what all acts such a person could not do, he could not mention what acts he could do. There must necessarily be some acts which he is permitted to do because of the provision in S.301(2) 'Act therein' must necessarily mean that it would be permissible for him to act just as a junior counsel acting for a senior, subject of course to the directions of the senior. When a senior counsel engaged in a case permits his junior counsel to act for him it does not mean that the responsibility is not on the senior counsel. So is the case with a Public Prosecutor permitting a pleader or a private person to act in the case. The responsibility for questions but to the witness's cannot be disowned later by the Public Prosecutor, and in so far as the matter in which the pleader is allowed to act by the Public Prosecutor, is concerned that will be taken to be the act of the Public Prosecutor or Assistant Public Prosecutor as the case may be. In the circumstances of this case, where the Assistant Public Prosecutor has agreed to the conduct of examination of the witnesses by the pleader of a private person, it is necessarily within his competence under S.301(2) of the Act. Hence there is no scope for exercise of any inherent power by this court The petition is dismissed.