P B DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present reference arise on account of the order passed by Additional Principal Judge of Court No.2, City Civil Court, Ahmedabad below Exh.19, whereby the learned Judge found that the questions of law arise for interpretation of Section 225 of the Code of Criminal Procedure (hereinafter referred to as "the Code") in order to maintain the spirit behind the Code and therefore, the reference.

(2.) In order to understand the genuineness of the question referred by the learned Sessions Judge, the factual background of the case is required to be considered which has led the learned Judge to refer the matter to this Court under Section 395(2) of the Code. It appears that a private complaint came to be filed by Mr.Pankaj Modi under the Prevention of Corruption Act against AUDA and the concerned Officers and the learned Advocate who represented the matter of the complainant was Mr.V.H. Brahmbhatt. Based on the said complaint, the investigation was ordered by the Court and the report was also ordered to be submitted. It appears that thereafter, the report was submitted under Section 173 of the Code by the Investigating Officer stating that no offence appears to have been made out. At that stage, the original complainant through Mr.Brahmbhatt raised the objection for acceptance of the report of the Investigating Officer and the Court accepted the objection of the original complainant and did not accept the summary report, but found that on the basis of the material, prima facie the offence can be said to have been committed and therefore, the cognizance was taken and the process was issued to the accused. The accused also appeared in the matter and thereafter, it appears that the matter came up for further proceeding before the learned Special Judge (hereinafter referred to as "Sessions Court" for the sake of convenience) for conducting of the trial for the alleged offence under the Prevention of Corruption Act.

(3.) It appears that in the meantime, the original complainant Mr. Pankaj Modi expired on 25.11.2008. Therefore, when the matter came up before the learned Sessions Judge, an application Exh.19 was submitted on behalf of the accused Nos. 3,4 and 5 contending that the case is to be tried as per the provisions of the Prevention of Corruption Act read with the provisions of the Code and the complainant has expired on 25.11.2008, the relationship of the complainant and his Advocate comes to an end and the learned Advocate Mr.Brahmbhatt has no right to conduct the matter on behalf of his client. It was also submitted that as per the provisions of Sections 225 to 235 of the Code, and more particularly Section 225 of the Code, provides that on behalf of the complainant, only the Public Prosecutor has a right to conduct the case and therefore, the direction be issued to the Public Prosecutor for conducting of the case. The said application came to be heard by the learned Sessions Judge and considering the facts and circumstances of the case, he found that as per the provisions of Section 225 of the Code, the trial has to be conducted by the Public Prosecutor, but keeping in view the factual background that the investigating machinery had not properly undertaken the task, it cannot be entrusted with the work of prosecuting the case and therefore, if the letters of law is to follow, the spirit behind the law would be lost. The learned Judge further found that as per the observations made by the Apex Court in the case of Salem Advocate Bar Association v. Union of India, reported in (2005) 6 SCC 344, the Court has to play a proactive role and therefore, the learned Judge found that the question with regard to locus of Shri Brahmbhatt who was the Advocate of the original complainant and his right to conduct the proceeding as an Advocate even after the death of the private complainant would rest on the interpretation of Section 225 of the Code and the Sessions Court has to maintain the spirit of Section 225 of the Code, and therefore has referred the matter to this Court under Section 395(2) of the Code and hence, the present petition.