STATE OF HIMACHAL PRADESH Vs. CHARAN DASS DOGRA

JUDGEMENT

(1.) IN this revision petition the question which arises for decision is whether the Public Prosecutor can intervene at the stage of an enquiry under Section 202 of the Cr. P. Code, 1898, (hereinafter called the Code) in a case instituted on a complaint by a private person.

(2.) SHRI Charan Dass Dogra, an Advocate of Kulu had lodged a complaint under Sections 302, 307, 148, 149, 109, 114 and 120-B of the I. P. Code against S/sliri Lal Chand Pararthi and five others. The judicial Magistrate in whose court the complaint was lodged took cognizance of the case as contemplated under Section 190 of the Code and he commenced an enquiry as contemplated under Section 202 of the Code. During the course of the enquiry, before processes were issued to the accused, Shri T. R. Sharma who is said to be a Magistrate and was connected with the arrangement of the DUSHERA fair when this occurrence is alleged to have taken place, was examined on 28-10-1971. Later on the Advocate-General appeared and put in an application purporting to be one under Section 540 of the Code for recalling Shri T. R. Sharma for purposes of cross-examination but this application was opposed by the complainant on the grounds that the Advocate-General had no locus standi to file an application and also to take part in the proceedings. Further that he had no confidence in the Advocate General as the respondent No. 1 was the Revenue Minister and had been named as an accused along with others and as such the Advocate General was under the influence of respondent No. 1. The learned Magistrate disallowed the application moved by the Advocate-General for recalling Shri T. R. Sharma for purposes of cross-examination. It is against that order, dated 6th December, 1971 of the Judicial Magistrate that this revision petition has been moved.

(3.) THE learned Advocate General in assailing the order of the learned Magistrate, contends that the same is not sustainable because it is the public prosecutor who is in charge of all the criminal prosecution as the offence is against the society at large and not against the particular individual and it is the function of the State to prosecute the offender and in order to substantiate his arguments, he has drawn our attention to various sections of the Code and has also placed reliance on Emperor v. Janke Gopal Koli AIR 1936 Bom 35 : 37 Cri LJ 333 and Bisheshar v. Rex AIR 1949 All 213 : 50 Cri LL 322.