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2. By Order dated 17th June 2014, following questions of law have been
referred for consideration before this Bench by the learned Single Judge.
Samsha Khatoon vs. The State of Jharkhand & others), the learned Division
Bench of this Court after finding that vakalatnama have been accepted on behalf
of the respondent no. 5 by the Registry of the Court without any notice ever been
4. When the instant bail application was being heard before the learned
Single Bench, an objection was raised on behalf of the petitioner that in view of
the order dated 13th May 2014 passed in W.P.(HB Cr.) 95/2012, the informant
could not appear through the counsel as no notice have been issued to the
informant / private party, nor the informant / private party had filed a Caveat
was prayed that his appearance on behalf of the informant is liable to the rejected.
Learned Single Judge, after noticing the provisions of section 301(2) of the
Cr.PC. and the judgment rendered by the Hon'ble Supreme Court of India in the
case of J.K. International vs. State (Govt. of NCT of Delhi) and others [(2001)
3 SCC 462], was of the view that in a criminal proceeding, Code of Civil
were referred to the Full Bench for reconsideration of the order passed by the
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learned Division Bench of this Court, as aforesaid. The matter has thereafter been
5. At the outset, it must be stated that when the arguments were heard,
the court on the aforesaid questions of law, rather than arguing for and against the
aforesaid issue.
6. Mr. K.P. Deo, learned counsel appearing on behalf of the petitioner and
Mr. A.K. Kashyap, learned Senior Counsel appearing on behalf of the informant,
a inquiry, trial or appeal, any private person may instruct the pleader to prosecute
any person in court and in such circumstances, the pleader so instructed shall act
under the direction of the Public Prosecutor or Assistant Public Prosecutor who is
conducting the prosecution. Learned counsel also referred to the newly added
provisions of section 2(wa) of the Cr.PC. which contains the definition of victim
and the proviso added to section 372 Cr. PC whereunder the victim has been
conferred the right to appeal against the order of acquittal of an accused or also
compensation. Learned counsel has relied upon the judgment rendered by the
Police and another [(1985) 2 SCC 537] to submit that an injured person or
relative has a locus to appear in the court to oppose the dropping of the
under section 171(3) Cr.PC.. Learned counsel has further relied upon a judgment
rendered by the Hon'ble Supreme Court in the case of Shiv Kumar vs. Hukam
Chand and another [(1999) 7 SCC 467] and submitted that the provisions of
sections 301 and 302 Cr.PC. are applicable to all courts of criminal jurisdiction.
the informant is entitled to appear to assist the court, though under the instruction
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of Public Prosecutor to prosecute / oppose the prayer. Learned counsel for the
petitioner has also relied upon an Article published on 'Victims of Crime Unseen
Side' of Hon'ble Mr. Justice A.S. Anand as the Lordship then was [(1998) 1 SCC
1]. According to him, law has progressed in the matter of recognition of the
rights of victim who have been all along deprived of due recognition in the
matters of criminal prosecution, though they are the ultimate sufferers. Learned
counsel has further relied upon a judgment rendered by the Hon'ble Supreme
Court in the case of J.K. International (Supra), It is submitted that the Hon'ble
Supreme Court in the said judgment, categorically held that in a proceeding for
is aggrieved of the offence, cannot be altogether wiped out from the scenario of
the trial because the investigation was taken over by the police and the charge
sheet was laid by them. If the complainant wishes to be heard when the criminal
foreclosed from being heard even after he makes a request to the Court in that
behalf. It has been submitted that sections 301 and 302 Cr.PC., have been also
considered by the Hon'ble Supreme Court in the said judgment, while recognizing
the role to be played by a private person, though limited, even in the Sessions
Court. It is submitted that the Court has been granted the power to permit even
such private person to submit his written argument in the court including the
Sessions Court and if he does so, the Court has the duty to consider such
argument before taking a decision. It has been further submitted on their part that
the provisions of Code of Civil Procedure are applicable to all civil proceedings /
civil suits, whereas under section 4 of the Code of Criminal Procedure, all
Code. Therefore the provisions of Section 148-A of the Code of Civil Procedure
informant to file a caveat petition to oppose the prayer for bail. Learned counsel
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Court Rules, has also pointed out that they are enabling provisions to be followed
in case a caveat petition is filed in a civil proceeding before the High Court.
7. Learned Senior Counsel Mr. A.K. Kashyap has drawn attention of the
Court to the newly added proviso to section 24(8) of the Cr.P.C. wherein the
Court may permit the victim to engage an Advocate of his / her choice to assist
provisions for grant of bail by the High Court and the Sessions Court, there is
Public Prosecutor, unless for the reasons to be recorded in writing, the Court is of
the opinion that it is not practicable to give such notice. It is therefore submitted
that the victim has been conferred a right to assist the Public Prosecutor in
opposing such prayer even in a proceeding for bail initiated on behalf of the
accused. Learned counsel for the petitioner as well as informant have submitted
that a private person who may be the informant / complainant himself or relative
of the victim or the injured, has the right to appear before the Court and assist the
prosecution to oppose such prayer of the accused even in the case of application
of bail.
8. Learned A.P.P. Mr. Arun Kumar Pandey has submitted that the Public
Prosecutor under the provisions of section 172 Cr.P.C is the custodian of all
police papers and the records and it is he who is entrusted with the responsibility
to prosecute the offender / accused. However, learned A.P.P. is also of the view
that the private person may instruct the Public Prosecutor to oppose the prayer of
9. Having considered the submission of the learned counsel for the parties
and the provisions of law and the judgment relied upon by them, let us address the
first question referred for consideration before this Bench, i.e. whether in a
Code to the Revenue Courts; whereunder any Revenue Court are governed by the
provisions of this Code in those matters of procedure upon which, any special
in the official Gazette declare that any portion of those provisions which are not
expressly made applicable by this Code, shall not apply to those courts, or shall
only apply to them with such modifications as the State Government may
prescribe. Part-I of the CPC provides for the jurisdiction of the Court and res
judicata. Section 9 CPC provides that the Courts shall try all civil suits unless
barred. It provides that the Court shall (subject to the provisions therein
contained) have the jurisdiction to try all suits of civil nature excepting suits for
which their cognizance are expressly or impliedly barred. Section 141 of the CPC
this Code in regard to suit shall be followed, as far as it can be made applicable,
that the expression 'proceedings' includes proceedings under Order-IX, but does
not include any proceeding under Article 226 of the Constitution. Reference of
the aforesaid provisions of Civil Procedure Code leaves a clear impression that
the Code of Civil Procedure applies to all proceedings in any Court of civil
jurisdiction i.e. all suits of civil nature except cognizance of which is either
expressly or impliedly barred. In the aforesaid scheme of the Code, Section 148-A
11. Under the aforesaid provisions, a person claiming a right to appear before
respect thereof. The whole concept and the object behind giving right to a person
to lodge caveat in such a suit or proceedings before any Court, is to ensure that
before any order is passed at the instance of the person instituting the suit, the
In essence, it is intended to ensure that the person likely to be affected, has a right
to oppose the prayer of the applicant in such suit or proceedings and that applicant
or the plaintiff may not get an ex-parte order in his favour in the absence of
12. The Code of Criminal Procedure is an Act to consolidate and amend the
law relating to criminal procedure. Section 4 of Cr.PC provides that all offences
under the Indian Penal Code shall be investigated, inquired into, tried and
of the Cr.PC. is in relation to the trial of the offence under the Indian Penal Code
13. It is therefore evident that under the Cr.PC.in a criminal case at any stage
governed by section 148-A of the Code of Civil Procedure exists. There are no
other provisions under the Code of Criminal Procedure under which a private
initiated at the behest of the accused. Learned Division Bench of Delhi High
Court vide judgement dated 11th May 2001 passed in WPC No. 1703/2001 in the
case of Deepak Khosla vs. Union of India & others, had also the occasion to
oppose the prayer of the accused person seeking an interim order from the Court?
Learned Court after considering the provisions of the CPC and Cr.PC., as has
been noticed herein above as well, came to an authoritative conclusion that there
is no legal sanction for filing a caveat by the applicant concerned to oppose the
the judgement of Rajasthan High Court in the case of Sahab Ram & another vs.
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State of Rajasthan & others [2000 (2) WLN 554] which also had taken the
same view.
14. From the aforesaid discussions, the only conclusion that can be drawn is
that there is no scope for filing a caveat as required under section 148-A of the
answered accordingly.
15. Let us address the second question of law, i.e. whether the informant and
the victim, who are ultimate sufferer of a criminal case, have the legal right to
lawyer as per the provisions contained under Section 301(2) of the Cr.P.C., as
well as the law laid down by the Hon'ble Supreme Court in the case of J.K.
International (Supra)?
Court as also through the Legislative changes brought about in the Criminal
Procedure Code from time to time. In the case of Bhagwant Singh (Supra), the
Hon'ble Supreme Court held that the injured person or any relative of the
deceased who is not the informant, though not entitled to notice from the
consideration of the report, if he otherwise comes to know that the report is going
to the report; the Magistrate is bound to hear him. This was the situation where on
a report of the police forwarded under section 173(2)(i), relative of the injured
who died in the incident complained of, sought an opportunity to be heard at the
time of consideration of the report. The Hon'ble Supreme Court held that even if
such a person is not entitled to notice from the Magistrate, he can appear before
the Magistrate and make his submission when the report is considered by the
Magistrate for the purposes of deciding what action he should take on the report.
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The injured person or any relative of the deceased, though not entitled to notice
from the Magistrate, has locus to appear before the Magistrate at the time of
Arunachalam and another [(1980) 3 SCC 141], a petition was filed under
Article 32 of the Constitution of India by the accused whose conviction has been
restored by the Apex Court on a Special Leave Petition filed under Article 136 of
the Constitution by the victim's brother against his acquittal. A plea was taken as
to whether the Hon'ble Supreme Court had the power to grant special leave to the
brother of the deceased. While considering the said issue, the Constitution Bench
of the Hon'ble Supreme Court also considered the meaning of expression “person
aggrieved” and “standing”. In the said judgement, the Hon'ble Supreme Court
appeal is vested in the State and if the complainant seeks to prefer an appeal, he
ought to obtain special leave to appeal. It was observed that fetters so imposed on
the right of appeal was prompted by reluctance to expose a person who has been
jurisdiction of the Hon'ble Supreme Court under Article 136 of the Constitution,
however, it was observed that in every such case, Court is bound to consider
what is the interest which brings the petitioner to the Court and whether interest
of the public community will be benefited by the grant of special leave. It was
also observed that in a jurisprudence which elevates the right to life and liberty to
motives and urges of those who seek to employ its process against the life or
liberty of another. In this inquiry, the Court would perhaps prefer to be satisfied
whether or not the State has good reason for not coming forward itself to petition
for special leave. The Apex Court on consideration of all the relevant aspects held
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that there was no justification to question the grant of special leave to the brother
of the deceased against the acquittal of the accused under Article 136 of the
Constitution.
17. The Apex Court in the case of Shiv Kumar (Supra) in the backdrop of
the provisions of sections 24 and 225 of the Cr.PC., proceeded to interpret the
purport of section 301 of the Cr.PC. also vis-a-vis 302 of the Cr.PC.. At para-12
of the said judgement, the Hon'ble Apex Court held that this particular section
from employment of the words “any court” in Section 301. It held as follows:
18. The Legislative intention under the scheme of the Code for conferring the
power upon a Public Prosecutor to carry out prosecution / conduct the case in the
Sessions Court, was also considered with the underlying policy i.e. fairness in the
trial of an accused. 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 must be
couched in fairness not only to the Court and to the investigating agencies but to
the accused as well. A Private counsel, if allowed a free hand to conduct the
prosecution, would focus on bringing the case to the conviction even if it is not a
fit case to be so convicted. The Hon'ble Apex Court therefore observed that this is
the reason why the Parliament applied a bridle on him and subjected his role
19. In the case of J.K. International (Supra), the matter related to the petition
for quashing filed by the accused before the High Court where the prayer for
impleadment as a party by the complainant was declined by the High Court. The
Hon'ble Supreme Court held that under the scheme envisaged in the Code of
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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.
Considering this provision of section 301(2) of the Cr.PC., it was held that even
conduct the prosecution, as per section 225 of the Cr. Pc; a private person who is
aggrieved by the offence involved in the case is not altogether debarred from
participating in the trial. Further, when the trial is before a Magistrate's Court, the
scope of any other private person intending to participate in the conduct of the
prosecution is still wider, as per the provisions of section 302 of the Code. The
Supreme Court also held that under section 301(2) of the Code, under Chapter
played by a private person if he is aggrieved and his presence is not wiped out
from the proceeding in the criminal trial merely because the case was charge
sheeted by the police. The Court is given power to permit such a private person to
submit his written argument in the court including the Sessions Court. If he
submits any such written argument, the court has the duty to hear such argument
(Supra) was also noticed by the Apex Court in the said case.
20. Section 2(q) of the Code of Criminal procedure provides for the definition
21. In the Code of Criminal Procedure (Amendment) Act, 2008 brought into
effect from 31st December 2009, definition of victim has been introduced under
24(8) by the same Amendment Act. The amended section reads as under:
22. Legislature has further brought about a significant change under section
372 of the Code relating to an appeal from a judgement or order of the Criminal
Court. By the same amendment, victim has been conferred the right to prefer an
appeal against any order passed by the Court acquitting the accused or convicting
the rights and role of a victim in a criminal case as also locus granted to him to
engage an advocate of his choice for prosecution under section 24(8). The express
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provision under which the entire issue has been argued appear at section 301 of
24. Under section 301(1) of the Cr.PC., the Public Prosecutor or Assistant
Public Prosecutor has been conferred the authority to appear before the Court and
plead in any court in a case without any written authority where that case is under
private person to instruct the pleader to prosecute any person in any Court. But
such a role of a private person is imposed with curb that it is only the Public or
Assistant Public Prosecutor in-charge of the case who shall conduct the
prosecution. The pleader so instructed, shall act only under the directions of
Public Prosecutor or Assistant Public Prosecutor. The first part of section 301(2)
of the Cr.P.C therefore grants locus to the private person to prosecute any person
in any court under the directions of the Public Prosecutor or Assistant Public
Prosecutor. However, if he wants to file a written argument, the same can be done
with the permission of the court after the evidence is closed. At para-12 of the
judgement rendered in the case of Shiv Kumar (Supra), the Hon'ble Supreme
Court has clearly observed that section 301(2) impose a curb upon the counsel of
the private party and limits his role to act in the court during such prosecution
under the directions of the Public Prosecutor. The only other liberty which he can
possibly exercise is to submit the written argument after closure of the evidence
in the trial, but that too, only under the Court's permission to do so.
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25. In case of Hari Shankar Rastogi vs. Girdhari Sharma and another
[(1978) 2 SCC 165], the petitioner appeared in person and sought permission to
be represented by another person who was not an advocate falling within the
definition of section 2-A of the Advocates' Act, 1961. The Hon'ble Court presided
over by Hon'ble Mr. Justice V.R. Krishna Iyer, J considering the provisions of
sections 29 and 30(1) of the Advocates' Act, 1961 and provisions of sections 2(q),
302, 303 and 304 of the Criminal Procedure Code, held that anyone who is not an
advocate, cannot, as of right, force himself into the Court and claim to plead for
another. Permission may, however, be granted by this Court taking the justice of
the situation and several other factors into consideration for such non professional
representation. The Hon'ble Court held that this approach accords with the policy
definition, includes any person other than one authorised by law to practise in a
in tune with the spirit of section 2(q) of the Code. Opinion of the Hon'ble
The said judgement has also been referred to by the Hon'ble Supreme
C. Shah and others [(2011) 9 SCC 707] where the issue before the Apex Court
under the provisions of Consumer Forum created under the Consumer Protection
Act, 1986. The Hon'ble Court in the said case, upon perusal of the provisions of
the Act of 1986, came to the conclusion that the parties have been given an option
under the State and Central Rules need not necessarily be an advocate. While
interpreting the provisions of the Act and the State and Central Rules, the Hon'ble
Court advances interpretation as discernible from the legislative intent and object
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of the consumer protection Act 1986 which is intended to help the consumer to
vindicate his right without being burdened with intricate procedures and heavy
professional fees. It is found that such provisions did not violate any provisions of
law, the Hon'ble Court held that it is bounded duty and obligation of the Court to
26. The inference that is obvious from the reading of the aforesaid provisions
Court in any such criminal proceeding in accord with the policy of the criminal
procedure code
27. In the scheme of Criminal Procedure Code as also reflected after the
amendment introduced with effect from 31st December 2009, there appears to be
clear distinction when a legal right has been specifically conferred upon the
victim under the amended proviso to section 372 of the Code to prefer an appeal
earlier existed for the victim. Under the provisions of section 378(4) of the code,
make an application for grant of special leave to appeal from the order of acquittal
and only upon grant of such leave, he could prefer such an appeal before the High
Court. Under the provisions of the Code specifically section 378 of the Cr. PC, in
case of acquittal it was only the District Magistrate who can direct the Public
Prosecutor to present the appeal to the Court of Sessions from the order of
offence. While under section 378(1)(b), the State Government may, in any case,
direct the Public Prosecutor to present the appeal to the High Court from the
Original or Appellate Order of acquittal passed by any Court other than the High
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Therefore, on one hand, specific legal right has been created in favour of the
victim giving him a right to appeal under the amended proviso to section 372 of
the Code on the other hand under the amended proviso to section 24 of the Code,
introduced with effect from 31st December 2009, the Court may permit the victim
provision therefore confers a discretion upon the Court to permit the victim to
engage an advocate of his choice. The victim though has a locus to engage an
granted by the Court and cannot be extended to mean that the victim has been
conferred a legal right which can be exercised. Under section 301(2) of the Cr.P.C
also which exists from before and as has been interpreted by the judgement of the
Hon'ble Supreme Court in the case of Shiv Kumar (Supra), as also in the case of
role to act in the Court during such prosecution under the direction of the Public
Prosecutor. The only other liberty which he can possibly exercise is to submit
written argument after the closure of the evidence in the trial, but that can be done
only if the Court permits him to do so. Therefore, on conjoint reading of the
amended proviso to Sections 24(8) and 301(2) of the Code, the legislative
intention is evident that a victim or a private person has locus to appear through a
pleader to assist the prosecution in any case where inquiry, trial or appeal is
pending in any court. The expression 'Court' would mean all the Courts of
section 439 Cr.P.C. which are in the nature of special powers upon the High
Court and the Court of Sessions, a Private person or the victim has a locus to
appear and oppose the prayer for grant of bail by the accused. However, it is
person in order to assist the prosecution. The Court, in exercise of such discretion,
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may have several factors in mind including as to whether the presence of a private
assist the Court in arriving at a proper and fair conclusion; that there may be
attendant facts which may not be in the knowledge of the Public Prosecutor which
may be brought to the notice of the Court through such assistance. Whenever a
Legislature, it is rather wise and advisable not to limit that power in a straight
jacket formula, but leave it to the Court concerned to exercise such power in a
judicious manner in the facts and circumstances of the case. [See (2003) 6 SCC
675 Surya Dev Rai vs. Ram Chander Rai and others, para-39].
28. Upon survey of the law evolved through the pronouncements of the Hon’ble
Supreme Court, the legislative Changes which has progressively occurred towards
the recognition of the role and rights of the victim in a criminal trial, and the
discussions made herein above, it can be said that the victim or a private person
has the locus to appear in a proceeding initiated at the instance of the accused in
any case before any Court where it is a affected party, however subject to the
discretion conferred upon the Court, to be exercised in the manner and to the
“Locus Standi” has been defined in the Blacks Law Dictionary as “the right to
person only if he has a interest in the matter. The victim / private person in that
sense does have a interest in the matter since it is the ultimate sufferer of such
crime. However, u/s 301(2) of the code, the legislature has consciously regulated
it in the manner that the Pleader so instructed by a private person, shall act in any
such case under the directions of the Public Prosecutor only and not as an
absolute legal right of independent appearance before the Court. The aforesaid
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provision is therefore in clear distinction from the specific provision u/s 372
proviso of the code conferring upon the victim a distinct legal right to prefer an
appeal which was not earlier available to him under the unamended section 372.
The conscious distinction made by the legislature in the wording of the two
provisions is apparent and with a definite legislative purpose and intent. If such a
view is taken that the victim / private party or the informant has legal right to
provisions of Section 301(2) of the Cr.PC read with Section 24(8) proviso, it
would mean that the victim / private party is a necessary party in every such
proceeding and as a matter of right, is entitled to notice before the proceedings are
specific legal right which the legislature never intended to confer upon the
victim / private person. Such interpretation is neither desirable nor appropriate for
a Court of law while undertaking the task of interpreting the specific language
used in the Statute keeping into mind the Statute as a whole and the aim and
29. At the same time, it also has to be held that a locus standi has been
appear in a proceeding initiated at the instance of the accused under the amended
proviso to section 24(8) and section 301(2) of the Code in recognition of its role
as the ultimate victim / sufferer of such crime. Such locus standi can be exercised
the rules of procedure for appearance prevalent in the Court such as through a
role of a Public Prosecutor in the impartial and fair conduct of the trial, not guided
Court to reach to the truth of the matter, has definitely limited the role of a victim
or a private person, so far as its assistance in the matter is concerned. The second
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In view of the aforesaid exposition of law, the view expressed by the learned
Let the matter appear before the learned Single Judge for considering the
Ranjeet/N.A.F.R.