Abdu Samad S/O Abu Hajji v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945** **CRL.MC NO. 198 OF 2020** **AGAINST THE ORDER/JUDGMENT CC 372/2015 OF CHIEF JUDICIAL MAGISTRATE ,MANJERI** ## **PETITIONER/ACCUSED:** ABDU SAMAD S/O.ABUHAJI, VADAKKUPURAM, THAZHATHEPALLIYALIL, CHOLAMAD, KARIPOOR, MALAPPURAM DISTRICT, PIN-673638. BY ADV P.T.SHEEJISH ## **RESPONDENTS/STATE AND COMPLAINANTS:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. 2 ASHRAF S/O.MOIDEENKUTTY HAJI, ERANJIKULAVAN HOUSE, MUTHUPARAMBU, KONDOTTY, MALAPPURAM DISTRICT-673638. 3 JAFAR, S/O.MOIDEENKUTTY HAJI, ERANJIKULAVAN HOUSE, MUTHUPARAMBU, KONDOTTY, MALAPPURAM DISTRICT-673638. BY ADV.SRI.SANGEETHA RAJ N.R., PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.198 of 2020 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Crl.M.C.No.198 of 2020 ---------------------------------------------Dated this the 27[th] day of September, 2023** ## **ORDER** Petitioner is the accused in Crime No.475/2015 of Karipur Police Station which is now pending as C.C.No.372/2015. The above case is registered against the petitioner alleging offences punishable under Section 341, 323, 324, 326, 506(1), r/w 34 IPC. 2. According to the petitioner, there is a counter case also leveled against the same parties and that case is pending as C.C.No.18/2016. It is submitted that the case and the counter case were contested in the court seriously. In such circumstances, the defacto complainant filed a petition under Section 302 of Cr.P.C. for the purpose Crl.M.C.No.198 of 2020 3 of engaging a particular lawyer to conduct the prosecution case as Crl.M.P.No.4318/2019. The trial court allowed the aforesaid application. According to the petitioner, the trial court has not applied its mind before passing the order and hence the same is illegal. It is also submitted that, apart from the case and counter case, one more case is pending before the Judicial First Class Magistrate Court – II, Malappuram which was charge sheeted alleging offences punishable under Section 498A and 406 IPC. The basic issue in all these three cases has arisen out of the marital relationship between Mr.Abdul Samad and Smt.Subeela. 3. It is submitted that a prosecutor was assigned to conduct the trial in C.C.No.8/2016 pending before the Judicial First Class Magistrate Court – II, Malappuram, in which the sister of the respondents are the defacto complainant and the Crl.M.C.No.198 of 2020 4 petitioner was the 1[st] accused. It is submitted that the same prosecutor was appointed as the prosecutor in the aforesaid counter case which was numbered as C.C.No.18/2016, in which the petitioner is the defacto complainant. It is submitted that the petitioner objected the same. In the meanwhile, the defacto complainant in C.C.No.372/2015 filed Annexure - A2 petition for engaging a particular lawyer to conduct the prosecution case. The same was allowed as per Annexure – A1 order. Aggrieved by the same, this Crl.M.C. is filed. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. Counsel appearing for the petitioner relied on the judgments of the Apex Court in **Shiv Kumar** **v. Hukum Chand and another** [MANU/SC/0533/1999] and **Amir Hamza Shaikh** Crl.M.C.No.198 of 2020 5 ## **and others v. State of Maharashtra and another** [Criminal Appeal No.1217 of 2019]. The counsel submitted that the Public prosecutor should be scrupulously fair to the accused and present his case with detachment. It is submitted that, otherwise there will be no guarantee that the trial will be fair to the accused as a criminal trial ought to be. But in the same judgment, it is stated that it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party. The Apex Court also observed in the above case that, it is extremely undesirable and quite improper that a Public Prosecutor should be allowed to sit back, handing over the conduct of the case to a counsel, however eminent he may be, briefed by the complainant in the case. 6. But admittedly, the offence involved in Crl.M.C.No.198 of 2020 6 that case was a sessions offence and the case was considered by the Sessions Court. Similarly, in **Amir Hamza Shaikh** 's case (supra) also the Apex Court observed that, only in very exceptional circumstances, permission can be granted under Section 302 Cr.P.C. This Crl.M.C. is filed challenging the order granting permission to the defacto complainant to appoint any counsel of his choice to conduct the prosecution. The prosecutor or the state is not aggrieved by the same. Therefore, for that simple reason itself, this Criminal Miscellaneous Case is to be dismissed. Moreover, the learned Magistrate as per the impugned order considered all the contentions of the petitioner in detail and thereafter allowed the application under Section 302 Cr.P.C. It will be better to extract the relevant portion of the impugned order: “14. On applying the above principles in the instant case, it can be seen that all the facts and Crl.M.C.No.198 of 2020 7 circumstance of the case are in favour of granting permission U/s. 302 Cr.P.C. Since, there are case and counter case, prosecution in both the cases cannot be conducted by the same Prosecutor. The appointment of the Assistant Public Prosecutor in the Court of Judicial First Class Magistrate-2, Manjeri in the counter case, was opposed by the respondents/the accused on the ground that he is the prosecutor in another case in which they are accused. Moreover, this Court can take judicial notice of the fact that, the appointment of another prosecutor who is in charge of prosecution in another court, no doubt, adversely affect the functioning of that Court, especially when almost all the Courts are flooded with alarming pendancy of cases including more than five year old cases. In some courts there is not even regular appointment of the Assistant Public Prosecutor to conduct the prosecution. There is also no chance of prejudice to the accused since they are represented the counsel of their choice. The trial of this case does not involve such complexities which cannot be handled by the petitioner/victim. So, I am of the view that the cause of justice would be served better by granting permission to the petitioner to conduct the prosecution. Though he is seeking permission to appoint a particular counsel for conducting prosecution, it cannot be allowed. However, since Crl.M.C.No.198 of 2020 8 the permission is granted in his favour, he can appoint any counsel of his choice to conduct the prosecution on his behalf.” I see no reason to interfere with the above order. Therefore, there is no merit in this Criminal Miscellaneous Case and accordingly the same is dismissed. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.198 of 2020 9 ## **APPENDIX OF CRL.MC 198/2020** PETITIONER ANNEXURES ANNEXURE A1 CERTIFIED COPY OF THE ORDER IN CRL.MP.NO.4318/2019 IN CC.NO.372 OF 2015 PASSED BY THE SESSONS COURT, MALAPPURAM. ANNEXURE A2 THE TRUE COPY OF THE APPLICATION IN CRL.M.P.NO.4318/2019 IN CC.NO.372 OF 2015. RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE