What application to file
Querist :
Anonymous
(Querist) 27 September 2023
This query is : Resolved
In my case ( under 307 ipc) I am complainant
1)Injured (my father)died without deposition in court…his 161 statement is there on file
2)He died after 3 years of incident
3)Post mortem was done in government hospital
4)Court firstly rejected my application of section 91 read with 311 crpc for calling the documents of PMR and said the injured was fit after being discharged with last comments that if there is any need for documents then court at its own will take action.
5) Now court has closed the evidence and fix the case for 313 crpc
Cause of death along with PMR is yet to come what should I file now to get justice ?
T. Kalaiselvan, Advocate
(Expert) 27 September 2023
If your application was dismissed by court you can file a revision petition against the order before high court and convince the high court about the need and also the importance of the documents for deciding the cae and seek for stay of proceedings by the trial court until then.
Dr. J C Vashista
(Expert) 27 September 2023
It is Public Prosecutor or your lawyer to advise you as s/he is well aware about facts and circumstances, however, if not satisfied you may consult and engage a local prudent lawyer for appreciation of facts / documents, professional advise and necessary proceedings.
If you feel aggrieved, may move in revision petiton through a local prudent lawyer.
Sudhir Kumar, Advocate
(Expert) 27 September 2023
n your case you need to establish the nexus between death occurred three years after injury. Your query does not at all hint as to how it ca be established or what logics/efforts have been made to establish the same.
P. Venu
(Expert) 27 September 2023
Section 307 is a cognizable offence and hence, the State ought to be the de jure complaiant . As such, how is it that you or you lawyer is 'prosecuting ' the case.
It appears that you have not posted the complete facts.
Dr. J C Vashista
(Expert) 28 September 2023
It would be better to consult and engage a local prudent lawyer for appreciation of facts / documents, professional advise and necessary proceedings.
Pradipta Nath
(Expert) 28 September 2023
In case you are not okay with any order, you may go for revision. Defacto complainant has every right of representation at every stage of hearing.
P. Venu
(Expert) 29 September 2023
To my knowledge, the de-facto complaint has only a limited role in a criminal trial. Once an FIR is registered, and the complaint transforms into a State prosecution, it is the Public Prosecutor appointed by the Central or the state government (as per the provisions of Section 24 of the Code) who takes an active role in conducting the trial. He/she is independent and impartial and ought to do it entirely uninfluenced by the complainant.
The complainant’s role is to “assist”, and not “lead”. This is quite obvious from the relevant provisions of the CrPC -
"Section 24. Public Prosecutors.
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(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:
Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.
Section 225: Trial to be conducted by Public Prosecutor.
In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.
301. Appearance by Public Prosecutors.
(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.
(2) If in any such case, any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.
302. Permission to conduct prosecution.
(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.
In the above context, the ratio laid down by the Apex Court in the case of M/S J K International vs State, Govt Of NCT Of Delhi repays study -
"The scheme envisaged in the Code of Criminal procedure (for short the Code) indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance. Even in the sessions court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial. This can be discerned from Section 301(2) of the Code which reads thus:
If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the public Prosecutor or Assistant Public prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.
The said provision falls within the Chapter titled General Provisions as to Inquiries and Trials. When such a role is permitted to be played by a private person, though it is a limited role, even in the sessions courts, that is enough to show that the private person, if he is aggrieved, is not wiped off from the proceedings in the criminal Court merely because the case was charge sheeted by the police. It has to be stated further, that the Court is given power to permit even such private person to submit his written arguments in the Court including the sessions court. If he submits any such written arguments the Court has a duty to consider such arguments before taking a decision.
In view of such a scheme as delineated above how can it be said that the aggrieved private person must keep himself outside the corridors of the Court when the case involving his grievance regarding the offence alleged to have been committed by the persons arrayed as accused is tried or considered by the Court. In this context it is appropriate to mention that when the trial is before a magistrate court the scope of any other private person intending to participate in the conduct of the prosecution is still wider. This can be noticed from Section 302 of the Code which reads thus:
(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a public prosecutor or Assistant Public prosecutor, shall be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.
The private person who is permitted to conduct prosecution in the magistrates court can engage a counsel to do the needful in the Court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against any one in whom he is interested he can approach the magistrate and seek permission to conduct the prosecution by himself. It is open to the Court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the courts would generally grant such permission. Of course, this wider amplitude is limited to Magistrates courts, as the right of such private individual to participate in the conduct of prosecution in the sessions court is very much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them."
T. Kalaiselvan, Advocate
(Expert) 01 October 2023
The author has not reverted with the answers raised by various experts here in order to advise him on all such further issues.
It clearly indicates that he is not very serious on this issue and may be posting a hypothetical question.
