Public Prosecutor Has No Authority To Request Trial Court To Discharge Accused Once Prosecution Application Filed U/S 321 CrPC Is Rejected: Rajasthan HC
The Rajasthan High Court observed that the Public Prosecutor has no authority to request the Trial Court to discharge the accused, once the application of the prosecution filed under Section 321 of the Criminal Procedure Code (CrPC) is rejected.
The Court observed thus in a batch of criminal revision petitions preferred against the order of the Trial Court by which charges were framed against the accused persons for the offence under Sections 148, 458, 323, 324, 326, 396, and 397 of the Indian Penal Code (IPC) and under Section 11 of the Rajasthan Dacoity Affected Areas Act and they were discharged.
A Single Bench of Justice Anoop Kumar Dhand held, “It is worthy to note here that surprisingly, the Public Prosecutor has submitted written arugments in favour of the petitioners and prayed for their discharge and prayed for framing of the charges against the accused Shiv Singh, Sonde @ Soren Singh and Kaikaiya @ Ramkhiladi. Such act of the prosecution is not appropriate and the same is liable to be deprecated. The Public Prosecutor has no authority to request the trial Court to discharge the petitioners Chaturbhuj, Chandra Prakash, Ramgilas and Rajesh once the application of the prosecution filed under Section 321 Cr.P.C. has been rejected not only by the trial Court but also by this Court as well as the Hon’ble Apex Court. Hence, under such circumstances, the Public Prosecutor is duty bound to follow the mandatory provisions, contained under Sections 225 and 226 Cr.P.C. Such conduct of the Public Prosecutor and the Department of Prosecution is totally unwarranted and the same is liable to be deprecated.”
The Bench said that the Public Prosecutor is considered to be an officer of the Court and he is expected to assist the Court in finding the truth in a case.
Senior Advocate V.R. Bajwa appeared for the petitioners/accused persons while Public Prosecutor Atul Sharma appeared for the respondent/State.
Facts of the Case -
The complainant lodged a report stating therein that at about 2:30 a.m., while he was sleeping in the corridor of his house and his wife and daughter were sleeping in another room, 5-6 persons entered his house and assaulted him. One of the accused persons tried to inflict knife injury on his person which he resisted by his hand, while the other assailants attacked him with lathis. Hearing his hue and cry, when his wife and son came out of their rooms, the assailants attacked them with knife and lathis, due to which their condition became serious.
The ornaments worn by the complainant’s wife and daughter were taken by the accused persons and they also took the cash and ornaments from the box lying in the room. The assailants were aged between 25-35 years whom the complainant did not know but he could identify them after looking at them. The neighbours also came there upon hearing the commotion at his house. Hence, a crime was registered for the offence under Sections 396 and 397 of IPC.
The High Court after hearing the contentions of the counsel noted, “The prosecutor no doubt, has to vigorously and consciously prosecute the case so as to serve the high public interest of finding out the truth and in ensuring adequate punishment to the offender. He has to safeguard public interest in prosecuting the case, public interest also demands that trial should be conducted in a fair manner.”
The Court emphasised that the Public Prosecutor is a functionary of the State appointed to assist the court in conducting the trial, object of which is basically, to find the truth and to punish the accused if he is found guilty according to the known norms of the law and procedure. It said that his plain task is to represent the State’s point of view on the basis of the material which could be legitimately brought before the court at the trial.
“Even if all State actions are just, fair and reasonable, he would still be under duty as a functionary of the State to discharge his functions as Public Prosecutor in a just, fair and reasonable manner irrespective of the outcome of the trial. In that sense he is part of the judicial system and an upright Public Prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest but is not a partisan in the narrow sense of the term. He is expected to act in a “scrupulously fair manner” and present the case of the prosecution before the Court of law”, it further noted.
The Court added that he must present a complete picture and not one-sided picture as the office of PP carries very great importance in the scheme of criminal trials in Sessions Court.
“The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court but also to the investigating agencies. … Though, it is the discretion of the State to prosecute any accused or not but there must be substantial reasons for seeking withdrawal of prosecution of any accused. Here, in this case, such prayer of the State has been declined not only by the trial Court but also by this Court and even by the Hon’ble Supreme Court vide order dated 21.11.2003. Hence, under these circumstances, the Public Prosecutor is supposed to act in accordance with law, as per the provisions, contained under Sections 225 and 226 Cr.P.C.”, it enunciated.
The Court said that though it would be a Herculean task but that is the duty of the trial Court to separate the grain from the chaff at the final stage of conclusion of trial and appreciate the evidence after its meticulous examination at the final stage of the trial.
“… the learned trial Judge has committed an error in discharging them vide impugned order dated 30.07.2005 in as much as no plausible ground existed before him to discharge the accused respondents. … The learned trial Court has over-exercised its power beyond its jurisdiction in discharging the accused Shiv Singh, Sonde @ Soren Singh and Kaikaiya @ Ramkhiladi. Hence, the impugned order dated 30.07.2005 by which the accused respondents were discharged is not sustainable in the eye of law and the same is liable to be quashed and set aside with direction to the trial Court to proceed against them in accordance with law”, it observed.
“This Court feels pain to observe and see the conduct of the Investigating Agency, as even for an incident which occurred in the year 2002, the investigation is still kept pending against some of the co-accused persons under Section 173(8) Cr.P.C. It is not expected from the Investigating Agency to keep any investigation pending for more than two decades. Already more than 22 years have been passed and still the investigation is pending under Section 173(8) Cr.P.C.”, it concluded.
The Court, therefore directed the Director General of Police to look into the matter and pass appropriate orders for completion of investigation.
Accordingly, the High Court allowed the criminal revision petitions.
Cause Title- Rajesh & Ors. v. The State of Rajasthan
Appearance:
Petitioners: Senior Advocate V.R. Bajwa, Advocates Amar Kumar, Savita Nathawat, Rajneesh Gupta, Fateh Chand Meena, Prahlad Sharma, and Susheel Pujari.
Respondents: PP Atul Sharma and Advocate Brij Mohan Sharma.
