COURT: HIGH COURT OF DELHI
Smt. Indu Bala & ors. Vs. Delhi Administration & ors.
Bench: P.K. Bahri, J.
Criminal – anticipatory bail – Sections 498 A and 406 of Indian Penal Code, 1860 and Section 438 of Criminal Procedure Code, 1973 – petitioners sought anticipatory bail for offence punishable under Sections 498 A and 406 – whether counsel who appeared on behalf of complainant heard in matter or not – for offences which committed against society State is only party which has to prosecute accused before Court of law – Section 438 does not contemplate any hearing given to complainant party in police case – complainant can assist Public Prosecutor when proceedings conducted at stage of inquiry, trial or appeal – precedent referred – held, complainant has no right to be heard in applications seeking anticipatory bail.
In these two petitions filed under section 438 of the code of criminal Procedure, the petitioners have sought anticipatory bail in respect of the case registered as F.I.R. No. 198/89 under Sections 498-A, 406 etc. of the Penal Code.
2. The short question which has arisen is whether Mr. K. K. Sud, counsel who has appeared on behalf of the complainant, should be heard in the matter or not ? Mr. P. P. Grover, counsel for the petitioners in these matters, has strongly objected to giving any hearing to the counsel for the complainant.
3. It is true that only the State through the Delhi Administration has been joined as respondent in these two petitions and as a matter of fact, a case which the police has investigated on the basis of the F.I.R. No. 198/89 only the State is the necessary party. The complainant or the witnesses who might have been examined in support of the case during the investigation are neither necessary nor proper parties. The offences which are committed by the persons are committed against the society and the State is the only party which has to prosecute the accused in those offences before the Court of law and if any applications are moved during the trial pertaining to the said offences, it is only the State who can be given any hearing in the matter.
4. Section 438 of the Code of Criminal Procedure does not contemplate by itself any hearing to be given to the complainant party in a police case. Mr. K. K. Sud, counsel appearing for the complainant, has not been able to bring to my notice any provision of law or any case wherein it may have been laid that even in a police case a complainant party can be given hearing. The various provisions in the Code of the Criminal Procedure, particularly Sections 417, 422, 493 & 494 bring out the importance of functions and duties of a Public Prosecutor, who is the sole authority to conduct the cases instituted by the police on behalf of the State. He is supposed to act independently and exercise his own discretion to see that justice is done in such cases. He has to conduct the proceedings in a fair mind without any prejudice towards the accused whereas if the complainant is allowed to interfere in the proceedings, it is evident that object of the complainant would not be to see only that justice is done in a particular case but in all probability such a complainant would be swayed with the emotions to seek revenge or vendetta for his own satisfaction. Counsel representing the complainant cannot be as unbiased as a public prosecutor would be.
5. In P. S. Saravanabhavanandam v. S. Murugaiyyan 1986 Cri LJ 1540, a single Judge of the Madras High Court considered the question whether a third party could pray for being impleaded in the proceedings before the Criminal Court. By making reference to S. 301 of the Code of Criminal Procedure, the Court found that the same enables the private parties to assist the prosecution and also submit written arguments with the leave of the Court. It was held that there is no provision for a third party to intervene in the anticipatory bail application with a view to represent the matter before the Court. The learned single Judge laid down that when a party cannot be impleaded in a criminal proceeding, he cannot be permitted to come in under the guise of an intervener. At the same time the right of a party to represent a matter before the Court cannot be whittled down into a straitjacket formula of locus standi which is unknown to criminal jurisprudence. S. 301 of the Code of Criminal Procedure reads as follows :
“(I) 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.”
6. So, it is evident that a complainant can only assist the Public Prosecutor when the proceedings are being conducted at the stage of inquiry, trial or appeal. Such a complainant can submit written arguments after the evidence is closed in the case but as far as application for grant of bail is concerned there is no provision made in the Code of Criminal Procedure that a complainant or a third party can intervene and make any submissions independently in opposing the application for grant of bail or anticipatory bail. A single Bench of Punjab and Haryana High Court in Kuldip Singh v. State of Haryana, MANU/PH/0261/1979, also considered the provisions of S. 301 of the Code of Criminal Procedure in the same manner. Counsel for the petitioner has also made reference to Sarwan Kumar v. State of Haryana 1989 (2) RCR 459, wherein a single Judge of that Court also held that the first informant or the complainant in proceedings seeking grant of anticipatory bail neither can be considered as necessary party nor a proper party and has no locus standi to be heard. It was held that the complainant party may hold a watching brief and may bring the relevant facts to the notice of the State counsel and apart from that the complainant party has no right to be heard when particularly the State is duly represented.
7. In view of the above discussion, I hold that counsel for the complainant has no right to be heard in these petitions. He can brief the State counsel and it is only the State counsel who can be heard in opposition to these applications seeking anticipatory bail. Now, the matter be listed for arguments on merits on January 16, 1990.
Interim order to continue.
8. Order accordingly
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