Eldho George v. State

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938 Crl.MC.No. 4097 of 2013 () --------------------------- PETITIONER(S)/ACCUSED NO.1: -------------------------- ELDHO GEORGE AGED 41 S/O.GEORGE, CHALAKKATTUKUDY HOUSE, VADVUCODE, ERNAKULAM DISTRICT. BY ADVS.SRI.BENNY VARGHESE SRI.ANIL K.MOHAMMED RESPONDENT(S)/RESPONDENTS:- COMPLAINANT & DEFACTO COMPLAINANT: -------------------------------------------------------------- 1. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 682 031. 2. JOHN GEORGE - S/O.GEORGE, NECHUPADAM VEEDU, KADAYIRUPPUKARA, AIKKARANAD NORTH VILLAGE, ERNAKULAM DISTRICT. 683 101. R2 BY ADV. SRI.BECHU KURIAN THOMAS R BY PUBLIC PROSECUTOR, SRI. M.R.DHANIL THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-11-2016, ALONG WITH CRMC. 5714/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CONTD... :2: Crl.MC.No. 4097 of 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- ANNEXURE A- TRUE PHOTOCOPY OF C.M.P.NO.2600 OF 2012 IN C.C.NO.457 OF 2012 OF JFCM COURT, KOLENCHERY. ANNEXURE B- TRUE PHOTOCOPY OF OBJECTION FILED BY PETITIONER IN C.M.P.NO.2600 OF 2012 IN C.C.NO.457 OF 2012 OF JFCM COURT, KOLENCHERY. ANNEXURE C- TRUE COPY OF ORDER DTD. 19.07.2013 IN C.M.P.NO.2600 OF 2012 IN C.C.NO.457 OF 2012 OF JFCM COURT, KOLENCHERY. RESPONDENT(S)' EXHIBITS : NIL ----------------------- //TRUE COPY// P.A. TO JUDGE SKS ## **RAJA VIJAYARAGHAVAN.V, J** **---------------------------------------Crl.M.C. No. 4097 of 2013 & Crl.M.C. No. 5714 of 2013** **----------------------------------------Dated this the 25[th] day of November, 2016** ## **O R D E R** - 1.These petitions have been preferred by the accused Nos. 1 and 4 in C.C.No.457 of 2012 on the file of the Judicial Magistrate of the I Class, Kolencherry. - 2.The defacto complainant in the aforesaid case is the Director of a company by name M/s Plant Lipids (P) Ltd, Kadayiruppu. The accused were the employees of the Company. The prosecution alleges that the accused had stolen essential oils from the store room of the company on - 04.06.2011 at 4.45 p.m. Final report was laid under section 381 read with section 34 of the IPC. - 3.The prosecution had cited as many as 25 witnesses to prove its case . Crl.M.C. No. 4097 of 2013 2 & Crl.M.C. No. 5714 of 2013 - 4.While the matter was pending consideration of the learned Magistrate, an application was filed by the de facto complainant seeking permission to engage a private counsel in lieu of the Assistant Public Prosecutor for conducting the case. It was also prayed that the private counsel be permitted to examine and cross examine the witnesses. - 5.Ignoring the vehement objections raised by the accused, the Court below allowed the said prayer. According to the learned Magistrate, the de facto complainant has right to depute a private lawyer to assist the Assistant Public Prosecutor and that he would also have the right to examine and cross examine the witnesses and do all the acts that the public prosecutor is entitled to perform. Profuse reliance was placed by the learned Magistrate to the decision of this Court in **Harish Kumar v. State of** Crl.M.C. No. 4097 of 2013 3 & Crl.M.C. No. 5714 of 2013 **Kerala** [2010(3) KHC 467]. The said order is under challenge. - 6.Heard the learned Counsel appearing for the petitioners as well as the respondent and also the learned public prosecutor . - 7.Before delving into the controversy it will be apposite to refer to section 301 of the Code which reads as follows: - S.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. Crl.M.C. No. 4097 of 2013 4 & Crl.M.C. No. 5714 of 2013 8.There can be no manner of doubt that when the Public Prosecutor or Assistant Public Prosecutor is in a charge of a case and a private person engages a lawyer, notwithstanding such engagement, the Public Prosecutor or Assistant Public Prosecutor shall conduct the prosecution and the lawyer engaged by the private person shall act therein under the direction of the Public Prosecutor or Assistant Public Prosecutor. He can only submit written arguments and that too with the permission of the Court. In other words, lawyer engaged by a private person has no right of audience in a case which is in charge of a Public Prosecutor. All that is contemplated by the Code is to submit written arguments and nothing more. The pre-eminent position of the Public Prosecutor cannot be displaced by the private lawyer. He can of course assist the Public Prosecutor and supply Crl.M.C. No. 4097 of 2013 5 & Crl.M.C. No. 5714 of 2013 inputs as and when required and can also bring to the attention of the Court, lapses or mistakes, on the part of the prosecutor. These aspects were considered in detail by this Court in **M.K. Balan V State** [1990 (2) KLJ 453]. 9.The learned Magistrate has placed reliance on the decision of this Court in **Harish Kumar** (supra) to grant the relief sought for. That was a case where a petition under Article 226 of the Constitution of India was moved by the brother of Shaji who was brutally murdered by members of a political party. The petitioner requested for appointment of a Special Public Prosecutor under Section 24(8) of the Code of Criminal Procedure. The said request was rejected after 12 years of the occurrence. This Court, taking note of the political consideration which weighed in the mind of the Government, took the view that the rejection of the application was malafide. Holding that no Crl.M.C. No. 4097 of 2013 6 & Crl.M.C. No. 5714 of 2013 purpose would be served in directing the Government to reconsider their order, in the peculiar facts of the case, this Court took the view that the petitioner should be permitted to engage his own private lawyer to conduct the case. The same person who was sought to be appointed as Special Public Prosecutor was directed to conduct the prosecution. It was in the said fact scenario that the aforesaid decision was rendered. However, the facts of the instant case are different. 10.In that view of the matter, I am of the view that the court below was not justified in holding that the counsel engaged by the de facto complainant can examine and cross examine the witnesses and do all such acts which the Public Prosecutor is entitled to perform. In the result, these petitions will stand allowed and the order of the learned Magistrate allowing the private Crl.M.C. No. 4097 of 2013 7 & Crl.M.C. No. 5714 of 2013 counsel to examine the witnesses is set aside. The counsel appointed by the de facto complainant can participate in the conduct of the prosecution under the direction of the Public Prosecutor as observed above. Sd/- **RAJA VIJAYARAGHAVAN.V. JUDGE** //TRUE COPY// P.A. TO JUDGE SKS