ANU GAYATHRI Vs. K KARTHIKEYAN

JUDGEMENT

(1.) IN the above petition filed under Section 482 of the Criminal Procedure Code the petitioner is seeking permission to engage a private counsel of her choice to continue further the prosecution case in C. C. No. 3260 of 2007 on the file of the IV Metropolitan Magistrate, Saidapet, Chennai ? 600 015.

(2.) THE brief facts which are necessary for the disposal of the above Criminal Original Petition are set-out below:-The petitioner is the defacto complainant in C. C. No. 3260 of 2007 and respondents 1 o 4 are the accused therein who are facing trial for an alleged offence under Sections 498 (A) and 406 IPC read with Sections 4 and 6 of the Dowry Prohibition Act. The trial was conducted by the Public Prosecutor, C. B. C. I. D. , Metro Wing, Chennai. According to the petitioner, since few witnesses have been won over by the accused the Additional Public Prosecutor dispensed with the witnesses; one of the witnesses dispensed with is Mrs. Harini, daughter of second and third accused and the sister of the first accused; it is alleged in the petition that on the advice of one Mr. Shahjahan, the Investigating Officer, the second respondent by using his influence with the Law Minister?s Office got the Public Prosecutor, C. B. C. I. D. , Metro Wing, Chennai, transferred and another Public Prosecutor of Coimbatore origin and known to the second accused family had been specially appointed to be in Additional In-charge of the prosecution and if the trial is conducted by such a Prosecutor there is no scope for any justice to the petitioner and on the further ground to prevent the abuse of process of Court and to secure the ends of justice the above petition is said to have been filed.

(3.) RESPONDENTS 1 to 4 have filed a detailed counter affidavit specifically denying each and every allegations made against them in the petition. It is stated in the counter affidavit that no material whatsoever has been produced in support of the allegation that the second respondent used his influence with the Law Ministry to get the Public Prosecutor transferred. It is pointed out in the counter affidavit that not even a supporting affidavit has been filed in the above petition. It is stated in the counter affidavit that the Prosecutor, who was appointed in place of the Public Prosecutor, C. B. C. I. D. , Metro Wing, has since been transferred. The very maintainability of the above Criminal Original Petition is questioned on the ground that specific provision under Section 302 of the Criminal Procedure Code is available which enables the defacto complainant to seek permission from the learned Magistrate trying the case to engage a private counsel. When Section 302 Cr. P. C. enables the petitioner to seek the remedy which is sought for in the above Crl. O. P. , the above Crl. O. P. , filed under Section 482 of the Cr. P. C. is not maintainable. It is further stated in the counter affidavit that earlier the petitioner filed a petition before the Magistrate seeking permission under Section 301 of the Cr. P. C. and the petitioner was permitted to engage a private counsel to assist the Public Prosecutor and pursuant to such permission granted the petitioner actually engaged a private counsel and such counsel was assisting the Public Prosecutor all through; a total of 35 witnesses were cited in the charge sheet and as on 28. 05. 2008, 22 witnesses have been examined and another 10 witnesses have been dispensed with. When 3 more witnesses namely the learned Magistrate, who recorded 164 statement of witnesses, the Inspector of Police and the Deputy Superintendent of Police remained to be examined, the regular Prosecutor was transferred on 28. 05. 2008. After his transfer on 12. 06. 2008 the in-charge Prosecutor examined the Magistrate who recorded 164 statements as P. W. 23 and having kept quiet the petitioner filed the above petition only on 02. 07. 2008. It is further stated in the counter affidavit that when the case came up on 04. 07. 2008 the Inspector of Police has been examined in chief as P. W. 24 and even at that time the petitioner did not reveal to the trial court about the filing of the above petition before this Court; thereafter the case was adjourned to 14. 07. 2008 and even on that date no petition was filed under Section 302 Cr. P. C. , but on 17. 07. 2008 the petitioner filed a petition under Section 302 Cr. P. C. , and another petition under Section 309 Cr. P. C. , seeking for permission and adjournment respectively.