Case 498a and 301 & 302 of crpc
Sundram N
(Querist) 11 October 2012
This query is : Resolved
Dear Sir,
kindly advice on the following facts of law :-
1. Case under section 498a is filed by wife and appointed private advocate for arguement of case in hearing of anticipatory bail of husband. as section 301 is authorising to PP to argue and control the case in session judge but section 302 says that megistrate can authorise the others in lue of PP to ague the case.
AS the decesion of supreme court in Shiv Kumar vs. Hukum Chand and anr.on august 30,1999 held that only PP is authorised to argue the case of criminal in session court because of proving the actual crime of the case and not punishing the innocent person under any circumstances of arguments. PP has the double role to suprvise & control the case and give proper opportunity to accused to proof innocent if they have therefore, supreme court held that PP is appointed and given remuneration and sitting back in the court is absolutelly the harm the justice.if private counsel is appointed by complanant is void because the case is under the accused Vs. state therefore , complainant is not authorised to appointment the private counsel.
kindly suggest and give your valuable openion that in 498a, wife who is complanant can appoint the private counsel and session judge can sanction the practice. kindly give your openion.
ajay sethi
(Expert) 11 October 2012
The position remains undisputed that the complainant's lawyer can merely ;assist the Public Prosecutor by
submitting the written arguments as is permissible under Sections 225, 301 and 302 Cr.P.C. The Rajasthan
High Court in Bhopal Singh v. State of Rajasthan and Ors., 2001 Cr.L.R. (Raj) 161, upheld the validity of
Sections 225, 301 and 302 Cr.P.C. wherein the complainant had challenged the validity of the said provisions
on the ground that he had a right to engage a counsel of his choice to conduct the prosecution Of the accused
and not by a Public Prosecutor appointed under a spoiled system. The Court rejected the said contention,
upholding the validity of the said provisions, observing that it did not violate the mandate of Article 21 of the
Constitution as offence committed by an accused primarily was offence against the State and not against an
individual and the submission that Article 21 includes the right to prosecute the accused by the complainant
because he had suffered the loss or injury, was rejected.
ajay sethi
(Expert) 11 October 2012
In Shiv Kumar v. Hukam Chand and Anr., , the
Hon'ble Supreme Court observed as under:-
"A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused
somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public
Prosecutor while conducting the prosecution must be couched in fairness not only to ... the Court and to the
Investigating Agency but to the accused as well. If an accused is entitled to any legitimate benefit during trial,
the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to
winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public
Prosecutor has the added responsibility to bring it to the notice of the Court, if it comes to his knowledge. A
private counsel if allowed free hand to conduct prosecution would focus on bringing the case to conviction.
That is a reason why Parliament Applied a bridle on him and subjected his role strictly to the instructions
given by the Public Prosecutor."
17. While deciding the said case, the Hon'ble Supreme Court placed reliance upon the judgment of the Full
Bench of this Court in Queen-Empress v. Durga, ILR 1894 All.84, wherein it had been observed that the
Public Prosecutor should bear in mind that he has to act and conduct the case for crown fairly and he should
not obtain an unrighteous conviction. He has to see that justice is indicated.
18. In Medichetty Ramakishan and Ors. v. State of Andhra Pradesh, , the Andhra Pradesh High Court
observed as under:-
"The principle that Public Prosecutor should be scrupulously fair to the accused and present his case with
detachment and without evincing any anxiety to secure a conviction is based upon high policy and as such
Courts should be astute to suffer no inroad upon its integrity. Otherwise there Will be no guarantee that the
Vinay Kumar Srivastava S/O Late ... vs The State Of U.P. Through Up Sachiv ... on 3 October, 2005
Indian Kanoon - http://indiankanoon.org/doc/236988/ 3
trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for
it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and
not to obtain a conviction by any means fair or foul. Therefore, it is zealous to see that the prosecution of an
offender is not handed over completely to a professional gentleman instructed by a private party... unless,
therefore, the control of the Public Prosecutor, the prosecution of private party may degenerate into legalized
means for wreaking private vengeance."
