UMANATH Vs. STATE OF KERALA

JUDGEMENT

(1.) This Crl. M. C. is filed by the de facto complainant in C. C. No. 118/93 on the file of the Judicial First Class Magistrate's Court-II, Kanjirappally to quash Annexure-A1 order dated 12-2-1998 passed by the Magistrate.

(2.) On the basis of a complaint lodged by the petitioner as de facto complainant against the 2nd respondent a case in Crime No. 107/91 was registered against the 2nd respondent and after investigation charge was laid before the Judicial First Class Magistrate's Court-II, Kanjirappally alleging offences punishable under Sections 451, 342, 323 and 325 of I.P.C. and the case was registered as C. C. 118/93 by the Court. The petitioner filed a petition before the Government of Kerala to appoint a private advocate to conduct the prosecution in the place of the Assistant Public Prosecutor. As there was inordinate delay he filed O. P. No. 13832/95 before this Court and this Court disposed of that O. P. directing the authorities to dispose of the application filed by the petitioner within one month by judgment dated 25-8-1995. Accordingly by order dated 1-9-95 the Government of Kerala informed the petitioner that if he wanted to appoint a private advocate to appear on his behalf he is at liberty to do so and will be subject to the permission granted by the Judicial First Class Magistrate, Kanjirappally. Crl. M. P. No. 6083/95 filed by the petitioner through advocate Thomas Jacob was returned by the Magistrate's Court directing to file the petition by the petitioner himself. Accordingly the petitioner filed Crl. M. P. No. 6281/95 before the Magistrate to appoint a private advocate to conduct the case in the place of the Assistant Public Prosecutor and that application was allowed by the learned Magistrate by order dated 27-10-95. Thereafter the case was posted for day-to-day trial commencing from 1-1-98 to 16-1-98 and as per the schedule the trial was commenced and the prosecution on behalf of the petitioner was conducted by the private counsel appointed and PWs. 1 to 5 were examined. At that stage the Assistant Public Prosecutor raised an objection that the advocate conducting the prosecution claiming himself to be Special Prosecutor has no locus standi. According to him, he was under the mistaken impression that the permission granted by the Court was under Section 302 of the Cr.P.C. But in fact, permission was granted under Section 301 of the Cr.P.C. Though the private advocate appointed by the petitioner contended that he is the Special Prosecutor as per the order passed by the Government and the permission granted by the Court, after hearing both sides the learned Magistrate passed the impugned order dated 12-2-98 holding that the private counsel engaged by the petitioner is under Section301(2) of the Cr.P.C. and no permission under Section 302 of the Cr.P.C. is granted by the Court. It is further held that the private counsel can act only under the directions of the Assistant Public Prosecutor and the prosecution has to be conducted by the A.P.P. Accordingly the evidence of PWs. 1 to 5 recorded with the private counsel acting as the Special Prosecutor was directed to be ignored and not to form part of the records of the case and directed to start trial of the case afresh. The order passed by the learned Magistrate is very much assailed in this Crl. M. C. by the petitioner.

(3.) The facts that the petitioner filed a complaint against the 2nd respondent making various allegations of commission of offences punishable under the I.P.C. and after investigation and laying charge-sheet by the police and taking cognizance of the offences by the learned Magistrate the petitioner filed an application before the Government to appoint a private counsel for him to prosecute the case and the Government passed an order that the appointment of a private advocate does not come within the power of the Government and if so required the petitioner can appoint a private advocate to appear on his behalf subject to the permission granted by the trial Magistrate, are not in dispute. It is also not in dispute that the learned Magistrate passed order dated 27-10-95 in Crl. M. P. No. 6281/95 filed by the petitioner appointing a private advocate to conduct the case in the place of the A.P.P. and that order was not challenged by anybody. The trial was commenced and PWs. 1 to 5 were examined by the private counsel acting as the Special Prosecutor without any objection either from the accused who is a police officer or his counsel or the A.P.P. It is only thereafter the A.P.P. raised the contention that he was under the mistaken impression that permission was granted by the Court under Section 302 of the Cr.P.C. whereas it has come to his notice that permission was granted under Section 301 of the Cr.P.C. and therefore the Special Prosecutor has no locus standi to prosecute the case.