BHOPAL SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of this petition under Article 226 of the Constitution, first and second petitioners, the parents of deceased Dr. Bhanwar Singh, who is alleged to have been murdered on 15-3-1987, has challenged the constitutional validity of Sections 225, 301 and 302 of the Code of Criminal Procedure. They claim right to conduct the prosecution against the accused persons by a lawyer of their choice and not by a Public Prosecutor appointed under a spoil system.

(2.) The few facts in the context of which petitioners claim right to conduct trial are as follows : The third petitioner, brother of deceased Dr. Bhanwar Singh, lodged a FIR at Police Station, Takhatgarh, District Pali, on 17-3-1987 against Prithvi Raj, Ghanshyam Singh, Bakhtawar Singh, Ladu Singh and one Shri Keshav Singh for the offences u/Ss. 302, 147, 148, 149, IPC. The police registered FIR No. 18/1987 and proceeded with investigation. After investigation, police submitted a Final Report expressing the opinion that deceased Bhanwar Singhj died in an accident. This was not accepted by the complainant party and, therefore, a protest petition was filed in the Court of M.J.M., Sumerpur. The learned Magistrate directed for further investigation. The police was still of the opinion that it was a case of accident. However, the learned Magistrate did not agree with the police report and he took cognizance against the accused persons namely Ghanshyam Singh, Bakhtawar Singh, Prithvi Raj and Ladu Singh for the offences u/Ss. 302, 364 and 120-B, IPC. The said order was challenged by the accused persons before this Court by way of filing a petition under Section 482, Cr. P.C. The petition was rejected by the order dated 10-4-1996. However, this Court directed that the learned Magistrate will procure the attendance of the accused persons through bailable warrants. The accused persons appeared before the learned Magistrate and they were released on bail. The learned Magistrate committed the case to the Court of Addl. Sessions Judge, Pali to conduct the trial for the offence under Sections 302, 364 and 120-B, IPC. The order of granting bail was challenged by the complainant party before this Court by way of a petition under Section 482, Cr. P.C. This Court modified the order of the learned Magistrate and directed the accused persons to appear before the trial Court and moved a fresh petition to be decided on merit. The bail application was opposed before the trial Court by the complainant, which was rejected by order of the learned Additional Sessions Judge dated 15-4-97. However, this Court granted bail by order dated 2-5-97. On 15-2-99, at the stage of opening the case for prosecution u/S. 225 of the Code of Criminal Procedure, the counsel for the accused persons raised an objection to the effect that the counsel for the complainant cannot argue the case. This objection was supported by the Additional Public Prosecutor. The learned trial Judge considering the provisions of Sections 225, 301 and 302, Cr. P.C. upheld the objection that the complainant party can only be allowed to submit written arguments. At the stage of arguments for framing of charge, a similar objection was raised by the counsel for the accused persons. The objection raised by the accused could not prevail as the learned Additional Public Prosecutor permitted the counsel for the complainant to argue. The petitioners do not want to be at the mercy of the Public Prosecutor and want a clear direction from this Court that they should be permitted to prosecute the accused persons as of right. In this context, the petitioners have challenged the constitutional validity of Sections 225, 301(2) and 302, Cr. P.C.

(3.) It is contended by Mr. S. D. Rajpurohit, learned counsel for the petitioners, that in a spoil system, the Public Prosecutors are mostly incompetent as they are appointed by the Government on party line. It is also submitted that mostly, the public prosecutors do not function with requisite detachment and they are influenced by the politicians and police officers and they are also susceptible to misuse and corruption. It is also submitted that any person, who has suffered any loss or injury by reason of the act of the accused persons has inherent right to prosecute such accused persons through a competent lawyer of his choice. It is, thus, submitted that a right of life under Article 21 of the Constitution of India includes right to prosecute the accused at his hand, when a person has suffered any loss or injury. Sections 225, 301 and 302 of the Code of Criminal Procedure, which completely deprives a complainant to prosecute the accused, at whose hand he has suffered any loss or injury, are unconstitutional being violative of Arts. 14 and 21 of the Constitution of India.