Eswaramoorthy vs State by Inspector of Police, Dowry Prohibition Cell, Nagercoil and 2 Others

Janarthanam, J.—One Usha lodged an information before the Inspector of Police, Dowry Prohibition Cell, Nagercoil for the alleged cruelty

meted out to her at the hands of her husband Muthuswamy, his sister Visalam and her husband Thanappa, which was registered as a case in Crime

No. 3/91. After complying with the formalities of the investigation a final report under S.173(2) of the Code of Criminal Procedure, 1973 (for

short ''the Code'') had been laid and the same had been taken on file as C.C. No. 37 of 1991 on the file of the Judicial Magistrate No. II,

Tirunelveli against those three persons mentioned in the first information impleading them as accused 1 to 3 respectively.

On receipt of process, the accused entered appearance through a counsel of their choice and thereafter, accused 2 and 3 filed Crl.O.P. No.

10255 of 1991 impleading the Inspector of Police Dowry Prohibition Cell, Nagercoil as the only respondent to quash the criminal proceedings

initiated against them and also obtained stay of further proceedings.

One Easwaramoorthy, father of the complainant namely Usha took out the present application to implead him as respondent No. 2 in Crl. No.

10255 of 1991.

Elaborate arguments had been addressed on the implead petition by learned counsel appearing for the parties.

Even at the outset, I may point out that criminal offence of a cognisable nature is construed as a crime against social interest of the community at

large and that perhaps is the reason for the State to take all steps necessary for bringing the person, who has acted against the social interests of

the community to book, notwithstanding the fact that the person aggrieved is not interested in pursuing the matter further. It is perhaps on the score

of this principle, administration of criminal justice system is founded upon.

The Code has given the recognition to such a sanguine principle, by indicating in various provisions, such as Ss.2(u), 24, 25, 225, 301 and 302,

A survey of these provisions does indicate appointment of a Public Prosecutor either by the State or by the Centre to be in charge of the

prosecution in respect of the cases filed before courts and conduct prosecution therefore, this apart, in certain contingencies and circumstances, a

police officer of a specified rank who is not in charge of an investigation, is also permitted to conduct the case. In none of the provisions, as

referred to above, there is any mention as to allowing a private party to engage a counsel of his choice so as to conduct the prosecution.

S.225 specifically mandates that a prosecution before a court of Session shall be conducted by a Public Prosecutor. As such, a prosecution

conducted by a counsel engaged in brief by a complainant and not by the Public Prosecutor is in violation of the express and mandatory provisions

adumbrated therefor. It is also clear from Ss.24 and 301 of the Code that a pleader privately engaged cannot plead, although he can act under the

directions of the Public Prosecutor. S.2(1) read with S.301 of the Code leads to the inevitable conclusion that any person engaged in brief by a

private person to instruct the prosecutor can only so instruct and act under the directions of the Public Prosecutor and the prosecution shall be

conducted by the Public Prosecutor himself. If the Public Prosecutor is disabled and sick and is unable to carry on his business, it would be his

plain duty to appoint a suitable person to act as Public Prosecutor for the case, It is extremely undesirable and quite improper that a Public

Prosecutor should be allowed to sit back handing over the conduct of the case of a counsel, however eminent he may be briefed by the

complainant in the case, on the salutary principles that criminal law is not to be used as an instrument of working private vengeance by an aggrieved

party against the person, who according to that party, had caused injury to it.

In view of what has been stated above it goes without saying that the implead petition deserves outright dismissal and is accordingly dismissed.