AI Structured Summary
Not yet generated for this judgment
Judgment
This Criminal Revision Case is filed against an order of the learned Principal Assistant Sessions Judge, Guntur dt. 18-7-1984 in Crl.M.P. No. 72 of 1984 in C.C. No. 1 of 1984 dismissing the petition filed by the petitioner herein under Ss. 34 and 225 Criminal Procedure Code praying the Court "to disallow the appearance of the private counsel to represent the complainant-respondent in C.C. No. 1 of 1984." Prosecution has been launched against the 1st respondent herein and another accused for an offence u/s 366 India Penal Code stating that they have kidnapped the 1st petitioner Smt. Mallika Begum from Guntur to Nellore and there she was forced to go through the alleged marriage with the 1st respondent Sri Md. Abdul Khader. The parents of the first petitioner brought her back to Guntur and subsequently she was married to Sri Syed Saleemuddin Kirmani, the second petitioner herein, at Vijayawada. Thereupon, on 19-6-1982 the 1st respondent herein filed a private complaint u/s 198 Cr.P.C. against the petitioners herein alleging that they have committed offences punishable under S. 494 and 495 I.P.C. The private complaint was taken on file by the learned IV Addl. Judicial First Class Magistrate, Vijayawada in C.C. No. 132 of 1982. While so, the petitioners herein filed Crl.M.P. No. 2247 of 1983 on the file of this Court under S. 407 Cr.P.C. for transfer of C.C. No. 132 of 1982 pending on the file of the Court of the IV Addl. Judicial First Class Magistrate, Vijayawada to the file of Principal Assistant Sessions Judge''s Court. Guntur for being tried along with S.C. Nos. 91 and 92 of 1983 pending on its file. This Court passed on order on 19-2-1984 allowing the said petition. In the order it is stated by this Court as follows :
"........... I am of the opinion that in both the cases the question of the marriage of petitioner No. 1 to respondent No. 1 or the petitioner No. 2 is relevant and therefore there is likelihood that there might be contrary findings by the two Courts. Hence, in these circumstances, it is necessary in the interest of justice, and to avoid such contrary findings, the case should be transferred. Hence C.C. No. 132 of 1982 on the file of the IV Additional judicial Magistrate of I Class, Vijayawada is transferred to the file of the Principal Assistant Sessions Judge, Guntur for being tried along with Sessions Cases Nos. 91 and 92 on his file."
After the order of transfer, C.C. No. 132 of 1982 was renumbered as C.C. No. 1 of 1984 on the file of the Court of the Principal Assistant Sessions Judge, Guntur. The petitioners herein filed Crl.I.P. No. 72 of 1984 in C.C. No. 1 of 1984 under Ss. 34 & 225 Cr.P.C. seeking a direction not to allow the appearance of a private counsel to represent the 1st respondent herein who is the complainant in C.C. No. 1 of 1984 and conduct the trial. As the said petition has been dismissed by the learned Assistant Sessions Judge, the present Criminal Revision case is filed questioning the validity of the said order.
S.C. Nos. 91 and 92 of 1983, pending on the file of the Court of the Principle Assistant Sessions Judge, Guntur relate to an offence of kidnapping the 1st petitioner, alleged to have been committed by the 1st respondent herein and another accused under S. 366 I.P.C. It is alleged that she was kidnapped on the intervening night of 27/28th of February 1982 from Guntur and was taken to Nellore when her parents were not present in the house. It is stated that the first petitioner was forced to marry the first respondent herein. The father of the first petitioner traced her and brought her home. On 24-5-1982 he celebrated her marriage with the second petitioner herein. The father gave a report to the Police on 5-6-1982 alleging that the first respondent and another kidnapped his daughter, the first petitioner herein, on the basis of which Crime No. 545 of 1982 of Kothapet Police Station, Guntur was registered.
The only question that arises for consideration in this case is whether the first respondent herein who filed a private complaint under S. 198 Cr.P.C., is entitled to engage a counsel to conduct the trial in C.C. No. 1 of 1984 after its transfer to the file of the Court of the Principal. Assistant Sessions Judge, Guntur to be tried along with S.C. Nos. 91 and 92 of 1983. It is submitted by the learned counsel for the petitioners that u/s 225 Criminal Procedure Code, in every trial before a Court of Sessions the prosecution shall be conducted by a Public Prosecutor. According to the learned counsel, after transfer of the C.C. to the file of the Court of the Principal Assistant Sessions Judge, Guntur the learned Assistant Sessions Judge has to conduct the trial and in such a trial prosecution can be conducted only by a Public Prosecution and the complainant cannot be permitted to engage a counsel to conduct the prosecution. My attention is drawn to the provisions of Section 2(u), Section 24, Section 301, Section 302 and Section 321 Cr.P.C. to show that the State Government shall appoint a Public Prosecutor for every district and the Public Prosecutor in charge of the case can appear and plead without any written authority before any Court in which the case is pending. Even in a case inquired into or tried by a Magistrate no person other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to conduct the prosecution without permission of the Magistrate and the Magistrate may permit the prosecution to be conducted by any person other than a police officer not below the rank of Inspector. The public Prosecutor is empowered to withdraw from the prosecution of any person with the consent of the Court at any time before the Judgment is pronounced as is provided in Section 321 Cr.P.C.
Section 190 Cr.P.C. deals with cognizance of offences by a Magistrate whereas S. 193 deals with cognizance of offences by a Court of Session. No court of Session shall take cognizance of any offence as a Court of original jurisdiction unless it is committed to it by a Magistrate except otherwise expressly provided by the Code or by any other law for the time being in force. Under Ss. 209 where it appears to the Magistrate that the offence is exclusively triable by a Court of Session, he shall commit the case to it.
It is strenuously urged by the learned counsel for the petitioners that when an offence was taken cognizance by the Magistrate and later the case was transferred by the High Court under S. 407 Cri.P.C. to the Court of the Assistant Sessions Judge, such Court is bound to conduct trial in the said case in accordance with the procedure laid down under Chapter XVIII of the Cr.P.C. applicable to trial before a Court of Sessions and in such trial the prosecution can be conducted only by the Public Prosecutor but not by a counsel engaged by a complainant at whose instance the Magistrate took cognizance of the offence before the case was transferred to the file of the Assistant Sessions Judge''s Court. In support of his contention, the learned counsel relied upon the judgment of the Supreme Court in P.C. Gulati Vs. Lajya Ram Kapur and Others, . In this case the question that arose for consideration was whether the High court can transfer a case pending in the Court of a Magistrate to the Court of the Additional Sessions Judge. The following two contentions were raised in that case.
1) As the Court of Session is not competent to take cognizance of any offence as a Court of original jurisdiction it is incompetent to take cognizance of a case pursuant to an order of transfer made by the High Court under S. 526 Cr.P.C. 1898 corresponding to S. 407 Cr.P.C. 1973 when that case is taken cognizance by the Magistrate and is not committed to the Sessions Court by the Magistrate. 2) Even otherwise, when S. 526 of the Cr.P.C. 1898 corresponding to S. 407 of the Cr.P.C. 1973 does not provide for the procedure to be followed by the Sessions Judge or the Assistant Sessions Judge in the trial of the case transferred to him by the High Court from the Court of the Magistrate, the procedure applicable for the trial of a case by a Court of Session will not be applicable to the trial of such transferred case. Referring to the various provisions of the Criminal Procedure Code the learned Judges of the Supreme Court have repelled both the contentions. It is held that :
"There is no difficulty in our opinion in the Court of Session trying the case transferred to it in accordance with the provisions of Chapter XXIII which deals with the procedure of trials before High Court and Courts of Session. The Court of Session has to follow the procedure laid down in this Chapter so far as that be applicable to the case to be tried by it. This is clear not only from the heading of the Chapter but also from the provisions of S. 268 which require all trials before a Court of Session to be either by jury or by the Judge himself and of S. 270 which require the Public Prosecutor to conduct the prosecution in every trial before a Court of Session. Of course, special procedure laid down for particular type of cases and proceedings will be followed in those cases as special provisions override general provisions of Chapter XXIII. Such special provisions are to be found in Ss. 198-B(5), 481 and 485-A of the Code."
Referring to the provisions of Sections 291, 207-A, 211 and 231 of the Criminal Procedure Code, 1893. Their Lordships observed that they :
"do not consider that there arises any difficulty in the trial of the accused by the Court of Session in a case transferred to it by the High Court from the Court of a Magistrate.
Dealing with the contention relating to the competence of the Sessions Court to take cognizance of a case transferred by the High Court from the Court of the Magistrate, the learned Judges referred to the provisions of S. 193 Cr.P.C. 1983 and observed as follows :
"A consideration of the provisions of the various sections in Part B of Chapter XV of the Code dealing with initiation of proceedings also makes out the difference between the taking of cognizance of a case and the subsequent inquiry and trial of the offences of which cognizance has been taken. Section 190 provides that Magistrate can take cognizance of a case in either of the three ways mentioned in Sub-Section (1). Section 191 provides for the transfer or commitment of the case in which the Magistrate has taken cognizance of the offence under Sub-Section (1)(c) of S. 190, i.e. on information received from any person other than a police officer or upon his own knowledge or suspicion that an offence has been committed, if the accused objects to being tried by that Magistrate. The provisions of this section make a distinction between the taking of cognizance of an offence and its subsequent trial by that Magistrate or by another Court. Similarly, S. 192 provides for the transfer of a case, of which the Magistrate mentioned in the section has taken cognizance for inquiry or trial, to another Magistrate subordinate to the particular Magistrate. The language indicates that the Magistrate to whom the case is to be transferred has not to take cognizance of the case afresh but has simply to proceed with the enquiry or trial of the case. Section 193 is the section which we have considered and, in the context of the various sections, the taking of cognizance of an offence as a Court of original jurisdiction must amount to the initiation of the proceedings for the first time in a Court and not in the subsequent enquiry or trial necessary for the disposal of the case. The other sections in this Part simply provide restrictions for the taking of cognizance of offences in certain circumstances.
.................................
We are, therefore, of the opinion that the further proceedings by the Court of Session in a case transferred to it by the High Court are not barred by S. 193 of the Code."
The Supreme Court has made it clear that where special procedure has been laid down under the Cr.P.C. in respect of particular type of cases, that procedure has to be followed on the basis of the principle that special provision overrides the generals provision. Special procedure has been prescribed under S. 198-B(5), 481 and 485-A Cr.P.C. 1983 corresponding to Sections 237, 345 and 350 respectively of the Cr.P.C., 1973 for particular type of cases. It is contended by the learned counsel for the 1st respondent that Section 198 Cr.P.C., 1973, dealing with cognizance of an offence punishable under Chapter XX of the Indian Penal Code (offences against marriage) is a special provision and when offences punishable under Ss. 494 and 495 in Chapter XX I.P.C. are taken cognizance by the Magistrate on a complaint made by the 1st respondent, only the procedure applicable to the trial of cases by the Magistrate should be followed by the Assistant Sessions Judge. In support of his contention the learned counsel cited a Judgment of the Supreme Court in G. Narasimhan, G. Kasturi and K. Gopalan Ors. Vs. T.V. Chokkappa, . Considering the scope and effect of Section 198 the learned Judges observed as follows :-
"................ Section 198, thus, lays down an exception to the general rule that a complaint can be filed by anybody whether he is an aggrieved person or not and modifies that rule by permitting only an aggrieved person to move a Magistrate in cases of defamation. The section is mandatory, so that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction of an accused in such a case by the Magistrate would be void and illegal."
It may be noticed that Section 198 provides that an offence against marriage can be taken cognizance by a Magistrate only upon a complaint made by an aggrieved person. The section itself specifies who an aggrieved person is. This section or any other section in the Cr.P.C. does not prescribe special procedure to be followed in the trial of an offence against marriage. The Supreme Court has pointed out in P.C. Gulati Vs. Lajya Ram Kapur and Others, the distinction between taking cognizance of an offence and the subsequent inquiry and trial of offences of which cognizance has been taken. The operation of Section 198 is limited to the initiation of the proceedings and has nothing to do with subsequent inquiry or trial of the case. In my opinion, the principle laid down by the Supreme Court in P.C. Gulati Vs. Lajya Ram Kapur and Others, squarely applies to the facts of this case and the learned Assistant Sessions Judge has to follow the procedure prescribed under the Code of Criminal Procedure prescribed for trial of cases before a court of Session in the disposal of C.C. No. 1 of 1984. In the said case, prosecution can be conducted only by a Public Prosecutor but not a counsel engaged by the 1st respondent.
The learned counsel for the petitioners relied upon three Judgment of this court in T. V. Sarma v. A. N. Koteswara Rao (1979) 2 APLJ 350, Randhir Singh alias Dhire Vs. State of Punjab, and G. R. Alarishana Reddy v. State (1980) 2 APLJ 436. In G. Ramakrishna Reddy v. State Supra Justice Madhusudhana Rao held that the same Public Prosecutor cannot conduct the prosecution in a case and a counter case and in such an event the Public Prosecutor has to choose one of the cases with the truth of which he is reasonably satisfied and the other case can be conducted by any other Public Prosecutor appointed by the Government. This Judgment also has no bearing so far as the facts of the case on hand are concerned except to the extent that where a case and a counter case are pending in the Sessions Court the same Public Prosecutor cannot conduct prosecution in both the cases. In Suryanarayana Rao v. State Inspector of Police, Tenali, Supra Jayachandra Reddy J. held that the Public Prosecutor cannot leave the trial in the hands of a private person and he cannot entirely divest himself of the functions to be discharged by him under the Cr.P.C.
The learned Public Prosecutor appearing for the 2nd respondent has contended that having regard to the provisions of Section 407 and Section 225 of the Code of Criminal Procedure, the prosecution in C.C. No. 1 of 1984 transferred to the Principal Assistant Sessions Judge''s Court, Guntur, can be conducted only by the Public Prosecutor, and the complainant at whose instance the case was originally taken cognizance of by the Magistrate cannot be permitted to engage a counsel to conduct the prosecution in the said C.C. No. 1 of 1984. My attention is drawn by the learned counsel for the 1st respondent to sub-section (8) of Section 407 Cr.P.C. which reads as follows :-
"When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred."
Having regard to this provision, it is submitted by the learned counsel for the 1st respondent that in a case where the Magistrate has taken cognizance of an offence punishable under Chapter XX I.P.C. on a complaint made by an aggrieved party, the complainant cannot be deprived of the right to engage a counsel and conduct prosecution even after transfer of the said case from the Magistrate''s court to the Assistant Sessions Court. In this connection, the learned counsel emphasized that in the absence of a similar provision as that of sub-section (8) of Section 407 Cr.P.C. in respect of transfer of a case to the file of the Sessions Court, it has necessarily to be presumed that the Principal Assistant Sessions Judge should follow the same procedure which the Magistrate would have followed if the case has not been so transferred. As to the effect of transfer of a case by the High Court u/s 407 Cr.P.C. the learned counsel has submitted, relying on a judgment of this Court in K. Venkatappa v. R. A. Nagireddy (1979) 1 ALT 189 that the evidence in both the cases should not be mixed up and they can be tried in quick succession but judgment in both the cases should be pronounced at one an the same time. In this case the learned Judge discussed the scope and ambit of transfer of case from the file of one court to the file of the other. It is held that when a case is transferred to the file of another court of be tried along with the case already pending on the file of that court, both the cases should be tried in quick succession and judgment should not be pronounced till the hearing of both the cases is completed. The learned Judge observed that the evidence in one case should not be mixed up with that in the other and there is no irregularity in trying the cases one after another. In this case there is not discussion about the effect of order of transfer made by the High Court under S. 407, Cr.P.C. and the procedure to be followed by a Court of Session on such transfer. In Anil Bhaskar Sonavane v. State of Maharashtra, ILR (1978) Bom 926 a Division Bench held that in case where complaint and cross-complaint were filed and the offences were taken cognizance by the Magistrate and if it appears to him that one of the two cases ought to be tried by a court of Session, it shall commit the same under S. 323, Cr.P.C. There may be an eventuality where the other case will be triable by him and not exclusively by the Court of Session. The learned Judges considered the question whether it will be desirable to transfer the other case to the file of the Sessions Court to avoid conflicting findings. It is held by the Division Bench that it is open to the Magistrate to commit the counter case to the Sessions Court to avoid conflicting findings which may otherwise result in grave injustice. In this judgment, there is not discussion as to the procedure to be followed in case of transfer of a case from the court of the Magistrate to the Sessions Court.
The learned counsel for the 1st respondent has cited the latest Judgment of the Supreme Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, and relied upon a passage in the said Judgment wherein it is stated that Ss. 195 to 199 Cr.P.C. prescribe eligibility criteria for a complaint and these provisions indicate that "in the absence of any such statutory provisions locus standi of a complainant is a concept foreign to criminal jurisprudence." On the basis of the said observation a plea is put forth by the learned counsel for the 1st respondent that Sections 195 to 199 are special provisions incorporated in the Cr.P.C. enabling only certain persons to file a complaint and once a complaint is filed under one of those provisions the complainant shall be permitted to engage his counsel and conduct the prosecution. In the above referred case the Supreme Court considered the scope and effect of the various provisions of Sections 5, 5A, 6, 7, 7A and 8 of the Prevention of Corruption Act, 1947 and some of the relevant provision of the Cr.P.C. 1973 (Act 2 of 1974) and held that concept of locus standi is alien to criminal jurisprudence except in cases where the statute itself prescribed eligibility criteria for a complainant. In dealing with that aspect the learned Judges have referred to Sections 195 to 199 of the Criminal Procedure to indicate that the said sections provide eligibility criteria for a complainant. In the instant case the question as to the right of the first respondent to file a compliant under S. 198 does not arise for consideration. The specific question that has to be decided in this case is as to the procedure to be followed by the Assistant Sessions Judge in trying C.C. No. 1 of 1984 transferred from the Court of the Magistrate. The Supreme Court has categorically laid down in P.C. Gulati Vs. Lajya Ram Kapur and Others, that on transfer of a case from the court of the Magistrate to the Court of Session by the High Court, the court of Session should try the case transferred to it in accordance with the provisions of Chapter XVIII of the Code of Criminal Procedure 1973 (Act 2 of 1974) which lay down the procedure for trial of cases before a Court of Session. The Supreme Court has discussed at length the importance of the office of the Public Prosecutor and the necessity of the prosecution being conducted by the Public Prosecutor in a trial before the Court of Session.
The learned counsel for the first respondent has drawn my attention to a Judgment of the learned single Judge of the Punjab High Court in P.C. Gulati Vs. Lajya Ram Kapur and Others, , wherein the learned Judge has observed construing the provisions of Section 526 of the Code of Criminal Procedure 1983 as follows :-
"............ it is hard to think that where a case is transferred to the Court of Session the inquiry stage is dispensed with and the accused is deprived of that safeguard. In my opinion implicit in the word ''transfer'' in Section 526 is the prescription for continuance of the proceedings in the same manner as they would have continued in the Court from which the case is transferred. If the Court from which a case is transferred was at inquiry stage, the transferee court must hold and/or complete the inquiry. I am interpreting and not construing the Criminal Procedure Code. The two terms, though used interchangeably, have different annotations. Courts resort to interpretation when they endeavour to ascertain the meaning of a word found in a statute, which, when considered in the light of other words in the statute, may reveal a meaning different from the apparent when the word is considered abstractly or when given its usual meaning. But when courts travel beyond the language of the statute and seek the assistance of extrinsic aids in order to determine whether a given case falls within the statute they resort to construction. It is really on the interpretation that I am inclined to hold that the word ''transfer'' has certain implications. In the absence of specific intent, it may be assumed that the law-makers intended that the statute should promote justice. If this concept is ignored, one might begin to wonder, how long our legal system is going to exist. I am not prepared to subscribed to the view that the law makers enacting the Code, intended even for a moment that in such circumstances the Court of Session has to bid good bye to safeguards inherent in the inquiry proceedings, when a case instituted on a private complaint is transferred to it."
The view of the learned Judge of the Punjab High Court in my opinion is contrary to the decision of the Supreme Court in the above referred judgment. I am of the view that the Judgment of the Supreme Court is on all fours to the facts of this case and the Principal Assistant Sessions Judge should dispose of C.C. No. 1 of 1984 following the procedure laid down under Chapter XVIII of the Cr.P.C. 1973 (2 of 1974).
For the reasons stated above this Criminal Revision Case is allowed and the order of the Learned Principal Assistant Sessions Judge, Guntur, is set aside.
Revision allowed.