Participation of Victims in Criminal Cases (Rights & Limitations) by Adv KR Sankaran, Coimbatore

0:07Okay, good afternoon.

0:09Welcome to all of you, especially my

0:10special thanks to Mr. Sagathis there,

0:13please.

0:14One of them one and all. And today we

0:16have a

0:17uh

0:18subject on participants of victims in

0:20criminal justice delivery system.

0:22System, rights and limitations. Very

0:25interesting as well as important topic

0:27for all of all of us.

0:29And it is my duty to introduce Mr. K.R.

0:33Sagathis. He's very well known to all of

0:35us.

0:36But

0:37it is my duty to say about something

0:38about his father also, Mr. K.R.

0:40Ramachandran.

0:42Uh he's something he has created a

0:44school of thought actually. And he's a

0:46And K.R. Sagathis is a third generation

0:48lawyer.

0:49And

0:50I must say that when I entered into this

0:52profession uh

0:55Mr.

0:56N.T. Annamalai from whom only we have

0:59learned taught and all. He told about

1:01K.R. first of all and all.

1:03And

1:03I heard about the cases that he

1:06that he conducted Coimbatore especially

1:07in

1:08Everest mill case. Important

1:11case of workers where a mill worker

1:14uh

1:15hooligan was murdered by somebody and so

1:17on and workers have been victimized

1:18there.

1:19Because I cannot forget the case. At the

1:21same time, we had a case at Kandaswamy's

1:24particularly Erode where myself and Mr.

1:27Thirumurajan were

1:28leading the women movement. One worker

1:30was certain having murdered there and

1:32around 80 people have been implicated

1:34there in the case including ourselves.

1:36Myself and Thirumurajan implicated 120B.

1:39Uh simultaneously that Everest

1:41murder case happened there. And I know

1:43that K.R. K.R. Sagathis the case very

1:46brilliant thought I could in the case of

1:48course.

1:49State gone to appeal and that ended in

1:51acquittal in Supreme Court I know that.

1:53As well as other case at

1:54Kannaiyampalayam Madurai Perumal case.

1:57Yes. Very important case that he has

1:58conducted for the workers and all. It's

2:00a very important case that he has

2:01conducted for the workers and also

2:03cases. Very famous case the whole India

2:05knows this Rajan case. Rajan case and

2:09all these cases there and it is very

2:12proud that

2:13uh the

2:15Mr. V. Lakshmanan in the in the souvenir

2:18that black and white that he had given

2:20the topic for your father's uh uh uh

2:22uh anniversary book, you know, and where

2:24he told that uh uh uh

2:25justice tempered with kindness and

2:29integrity. That is the school of thought

2:31that he has created. So, that mantle

2:33still you are upholding that. It is very

2:36uh pride and proud for us that today you

2:38are taking this class. It's very very

2:39important class. I request all of our

2:41friends to take note of it because

2:44for the point of view of victims very

2:46few only of

2:48V.R. Krishna Iyer victimology has now

2:49developed there and after this

2:51particular case there are so many things

2:53and now the victims compensation act and

2:55all that have come. So, I

2:57I appeal to all the friends and

3:00young lawyers to take note of it because

3:02he has already sent to some

3:04uh

3:0422 citations he has sent

3:07today. Already he has circulated. Kindly

3:10take note of it and I request

3:12the secretary to take the class on the

3:13subject. Thank you.

3:16Vanakkam.

3:17Ellarukkum vanakkam.

3:19In the

3:21COVID-19 period

3:24vanakkam in the welcome sign in the

3:26ulagam pura

3:28and the

3:29adiyalam kandu irukku nenaikkum bothu

3:31nammu India panpaatirkum namakkum romba

3:33perumaiya irukku.

3:35In the

3:36In the topic participation of victims

3:39in the criminal justice delivery system

3:43appadi in the topic uh

3:45naan thaan choose pannen.

3:47Ivaru Mr. Kalaiarasan unga junior

3:49colleague enoda pesum bothu naan athu

3:51choose pannen.

3:53Appo Mr. Kalaiarasan en kitta sonnathu a

3:55minor topic that he had addressed us.

3:58I put on a wonderful

4:00or lighter way for now I would say.

4:03You can have a lot of income.

4:06Whether that will be personal or not

4:08or whatever you can get into the

4:09COVID-19 or whatever you can get.

4:12I would like to remind you that just

4:14just

4:15just or

4:16in a lighter way.

4:19Bhavani Mr. Mohan said a lot of money.

4:22You have to get

4:24Bhavani Mr. Mohan at

4:25getting to know you better Coimbatore

4:28Central Hall opened on the model one

4:30day.

4:31I'm going to learn a lot of capital

4:33mobility up or not going to happen.

4:35I would like to open the

4:37Mr. Kanika number of District Judges

4:39here.

4:40I think at that time he did some

4:42sensational cases including that of that

4:46uh

4:48particular magazine

4:50editor

4:52Nakkiran Gopal on the case along on the

4:54Mariana to get that.

4:56I would like to get out of the

4:58interaction on the other tower or

5:00something before NTV is a school of

5:01thought and so on and so on.

5:03You have to get Madras for now and

5:063NTV I look at the already

5:08brother-in-law senior advocate

5:11Mr. V. Gopinath.

5:13Bhavani Mr. Mohan

5:15Gnana Bharathi

5:16I have been to get come out of

5:18in the in the day today.

5:20And a lot of cannot

5:22uh

5:24professional on the police station or

5:25not Central Nigeria or meet money to get

5:29in the

5:31webinar on the Nina in the summit and I

5:34think it's a great service to the legal

5:36fraternity no doubt.

5:38And I thank you for the opportunity

5:40given to me.

5:42And

5:44in the participation of victims in the

5:46criminal justice delivery system of

5:48being a topic that addressed

5:52Your friend Mr. G R B will be the

5:56leading civil lawyer in the one and only

5:57get that other other than that I have to

5:59develop on a product on there.

6:01In other participation of victims in the

6:03criminal justice delivery system

6:05They're already parties.

6:07They're already parties to the

6:08proceedings of the government and all of

6:10them are the parties to the patient when

6:11you look at it. Then I told him that is

6:14the perspective of a civil lawyer.

6:16Civil lawyer thinks the plaintiff

6:17defendant and the better parties and

6:19what else a person needs.

6:22But number criminal justice delivery

6:24system that victim would have a role of

6:26lower active area.

6:28I'm being a little bit of a monster with

6:29you than I know.

6:31I'm going to get in the topic and choose

6:32money better.

6:33You know in the topic when they or

6:36defense lawyer if you need the victims

6:38participation in the criminal justice

6:40delivery system but they may be so many

6:42more than I never been able to learn.

6:44I don't know anything about the other

6:45than that. Nowadays even on the criminal

6:48side our avenues have you know become

6:51wider.

6:52We can't simply rest on our laurels or

6:55our restaurant our specialty as a

6:56defense lawyer. As a criminal lawyer

6:59we may have to accept and take in

7:02whatever criminal case that comes in you

7:04know which will have some challenging

7:06tasks. And what's one such thing is you

7:08know

7:09taking the case of a victim.

7:11And we all know that it has gone a lot

7:15of amendments so far as victim is

7:17concerned.

7:18And if we may not amend mention when

7:20they did only an evolution and march of

7:23law.

7:24Such a thing not a final opinion could

7:27have sold a lot.

7:28I would be parking where they

7:31in the

7:32victims participation does it require

7:36any discussion or a deliberation

7:38or an interaction of being the get up

7:41in the changing scenario

7:44it is

7:46Yes, it requires

7:49a discussion.

7:50No.

7:52What a victim

7:53in the

7:562009 amendment to the

8:00victim

8:01number complaint

8:03first informant and the complaint

8:06victim and the complaint

8:07aggrieved person and the complaint

8:10in the in the in the status of the

8:13criminal order

8:14every order

8:16uh

8:17describe

8:19victim in the order a lawyer with an

8:22ordinary money

8:25every order a lawyer with an ordinary

8:26order with the money and the order

8:28order one day

8:30order

8:31post order the half hearted order

8:33receive order

8:37order criminal order criminal order full

8:39hearted

8:41order the ordinary order

8:42victim order

8:44position the flight of the victim in the

8:46criminal case

8:47order the

8:49order the criminal order

8:51No. order order order order order

8:53visualize criminal order criminal order

8:55ordinary criminal procedure code law

8:58complainant

9:00order victim order aggrieved person

9:03order first informant

9:05order criminal order order ordinary

9:07defined criminal order criminal order

9:10criminal order

9:11section 2D

9:14of the criminal procedure code law

9:16What is defined is only the

9:19complaint and not the complainant.

9:23Section 2D with the

9:25complaint defined criminal order it says

9:30Complaint means

9:32any allegation

9:34made orally or in writing

9:36to a magistrate

9:38with a view to his taking up

9:49Now, that does not include a police

9:50report the number complaint when it's a

9:53private complaint case. Police report is

9:56fully a police case.

9:57The explanation that

9:59when some complaint

10:01under explanation

10:04where you will be limited for the second

10:05defined money in the manner

10:08A report made by a police officer in a

10:10case which discloses

10:12after investigation commission of a

10:14non-cognizable offense shall be deemed

10:17to be a complaint. And the police

10:19officer by whom such report is made

10:21shall be deemed to be the complainant.

10:24And all the work is 498A, 324, and 494

10:30bigamy.

10:31This is a report with the

10:33498A, 324

10:36not made out and solely

10:38494 that made out and solely a

10:39non-cognizable offense made out and

10:41solely police report with the

10:44And the police officer can be termed as

10:47a complainant.

10:48I would be or complaint learning the

10:51number complaint into the definition

10:53number deduce from the very good.

10:56So, this was the position originally so

10:58far as the private parties

11:01you know this definition in a criminal

11:04cases concerned.

11:05Now,

11:06if we have you want to would be more

11:09complaint was treated in a criminal

11:12trial

11:13I would be more than willing to

11:15Now, I am the ruling circulate money to

11:17the

11:18I could only lay my hands on the first

11:20of the decision that I have circulated

11:23that is

11:24AAR 1966

11:27Supreme Court

11:28page 911

11:32Thakur Ram and others versus state of

11:35Bihar.

11:37Now

11:40that consisted of you know a batch of

11:42four police cases.

11:45And the four police cases less somewhere

11:47section 384 extortion

11:50and others were section 392 robbery

11:53tribal by learned magistrate.

11:56But

11:57the prosecution filed an application

12:00that

12:01graver offenses are made out

12:03and

12:04the cases need to be committed to

12:06sessions.

12:07And the learned magistrate

12:09dismissed the prayer of the prosecution.

12:13But the prosecution

12:15other mail

12:17revision or

12:19mail court to

12:21another

12:22and the private party by name Sagar Mal

12:26he was said I am agreed because he is

12:27the sessions of all and

12:29he took up the matter took up the matter

12:32which went up to the Supreme Court.

12:36Not only on the question of the private

12:38parties local standing

12:40but also on the question of whether the

12:42case could be committed to sessions or

12:43not.

12:45When the Supreme Court held that the

12:47case need not be committed to sessions

12:50and the magistrate should continue

12:52hearing the trying the case as a case

12:55tribal by the learned magistrate the

12:58Supreme Court made this particular

13:01observation

13:02which will definitely

13:05you know describe the plight of a

13:08private party or a victim in a criminal

13:11case as it stood then.

13:14Para nine of the judgment

13:16AIR 1966 Supreme Court page nine

13:20111 Thakur Ram versus state of Bihar.

13:24The criminal law is not to be used as an

13:26instrument of wreaking private vengeance

13:28by an aggrieved party against the person

13:31who according to that party had caused

13:33injury to it.

13:35Barring a few exceptions, in criminal

13:37matters, the party who is treated as

13:39aggrieved party is the state.

13:42Which is the custodian of the social

13:43interest of the community at large. And

13:46so it is for the state to take all

13:47necessary steps for bringing the person

13:49who has acted against the social

13:51interest of the community to book. That

13:54is, the private party cannot have a

13:56locus standi because

13:59he cannot be permitted to wreak private

14:01vengeance against

14:04against the accused. And therefore the

14:06state is the custodian of law.

14:08The state only can take care of, you

14:10know, the

14:11his interest. And so saying, the

14:15private party's participation was not

14:18permitted by the

14:21the the Supreme Court. This is to start

14:23with. And this the analogy that I said a

14:26little earlier, that the victims or the

14:30aggrieved party's position is that of an

14:32uninvited guest is, you know,

14:35obvious from this particular decision.

14:38Then came the

14:42the later one in 1982

14:45Weekly Criminal.

14:48After 16 years, page number 20,

14:51Ramnad District Cooperative

14:54Supply and Marketing Society

14:56versus Chandra.

14:58This is a decision by

15:00His Lordship Justice Sathar Sayed.

15:03The facts are, in brief,

15:06that was a private complaint under

15:08Section 408 IPC.

15:11We all know Section 408 in the criminal

15:14breach of trust by a clerk clerk or a

15:17servant.

15:18And the private complaint on the trial

15:20by the magistrate learned magistrate of

15:21the hearing trial by the court of law

15:25The accused was convicted and sentenced.

15:27But

15:32in the sentence

15:40in the private party

15:45sessions court for enhancement of

15:47sentence.

15:48For enhancement of sentence

15:52Sessions court said that revision for

15:55enhancement of sentence by a private

15:57party is not maintainable.

16:01And the private party goes on

16:05the honorable High Court. The High Court

16:08said

16:09by his lordship Justice Sattar Sayeed in

16:11page number 20

16:13if a private party has filed a complaint

16:15under 408 IPC before a criminal court

16:18and then the trial court has convicted

16:20and sentenced respondent and if the

16:22complainant is

16:24dissatisfied with the sentence awarded,

16:26the only remedy that lies for the

16:27complainant who is not the state is to

16:30file a revision in the district court or

16:31not in the High Court. 399 CRPC empowers

16:34the district court to go into the matter

16:36for its consideration. It is not correct

16:38to contend that when a person is

16:40convicted and a revision is filed by a

16:42private party against the conviction the

16:44state steps in and takes care of the

16:47entire case and only the state has got

16:48the power to file an appeal against that

16:50order under 377 CRPC for enhancing the

16:53sentence and the state alone has to file

16:55for enhancement of sentence.

16:59That the order of the district district

17:01court holding that the revision was not

17:03maintainable before it is perverse and

17:05illegal and has to be set aside and then

17:08solely district court can maintain a

17:11revision for enhancement of sentence by

17:14a private party in a criminal case up in

17:17a whole bunny

17:18377 CRPCL a one day

17:21only the state can file an appeal for

17:25enhancement of sentence.

17:27Whatever be the case in the trial court

17:30in any case of conviction in a trial

17:31court, only the state can go on appeal

17:34opinion 377 crpc subsection one less

17:37than that

17:38will not apply and the private party can

17:41definitely maintain a revision for

17:43enhancement of sentence before the

17:45district court opinion

17:47in the this decision less than that in

17:50the

17:51in page number 22 less than that in page

17:54number eight less than that

17:55They also say under the circumstances

17:58the argument of learned counsel basing

18:00377 crpc that the state alone has to

18:04file an appeal for enhancement of

18:05sentence is baseless opinion

18:09revision is maintainable for enhancement

18:11of sentence is maintainable by a private

18:13party before the sessions case court.

18:15opinion less than that opinion less than

18:17that

18:1819

18:2183 less than that

18:24justice

18:26ruling

18:27overruled by an order of reference under

18:29case

18:31section 1983 law weekly criminal

18:34page

18:35166

18:37Krishnamurti and Elumalai

18:40versus uh

18:43state

18:45opinion less than that

18:46the

18:49division bench of

18:50their lordship justice Natarajan and

18:52Swami Swamikannu

18:54overruled justice Satar Said's decision

18:58in page number 166 the order of

19:00reference opinion less than that

19:02The decision in this case was rendered

19:04by division bench justice Natarajan in

19:06pursuance of an order of reference by

19:08justice Singaravelu

19:10disagreeing with the view of Satar 1982

19:13Law Weekly Criminal Page 20, the

19:15Divisional Bench

19:17upheld the opinion of Justice Sangara

19:19Singaravelu and overruled that of Satha

19:22Sayed. In Nansoli, overruled and now

19:25Section 377 CRPC will come into play.

19:30Section 377 CRPC says that subsection

19:34one of Section 377 it is clear that only

19:38the state

19:39can file

19:41an appeal for enhancement of sentence.

19:43Whatever be the case of conviction

19:45nature of the case in the trial court of

19:48conviction. Everything is going to allow

19:50377 CRPC will come into play and

19:53therefore it is only the state which has

19:55which has got to do it and a private

19:57party cannot do it and so saying the

20:00decision of 1982 Law Weekly Criminal

20:03Page 20 was overruled. I had just for

20:06the

20:08for reference I read 377 sub

20:11section one. Appeal by the state

20:13government against sentence. Save as

20:15otherwise provided in subsection two,

20:17state government may in any case of

20:19conviction on a trial any case of

20:21conviction on a trial. Private complaint

20:23or

20:24police case distinction on the part of

20:26the

20:27in any case of a conviction on a trial

20:29held by any court other than a high

20:30court direct the public prosecutor to

20:32present an appeal against sentence on

20:34the ground of its inadequacy. Although

20:37in any case can sort of allow without

20:39drawing a category categorizing police

20:42case or private complaint or another

20:44377 will come into play. Although in

20:461982 Law Weekly Criminal was overruled.

20:50Here again

20:51the plight of a private party is

20:55is observed in page number 170 of this

20:58particular decision.

21:00To permit a party to have a say in the

21:03matter of sentence

21:05would be to

21:07tempt him to use the judiciary to wreak

21:10his private vengeance like what we said

21:12in 1966 Supreme Court. Your course,

21:15which the law will never allow.

21:17The duty of a citizen therefore

21:19be he a complainant or anyone else must

21:22stop with placing the evidence before

21:24court.

21:25And the question of sentence has to be

21:26left to the court. And if the court is

21:28found to have not acted judicially on

21:30the question of sentence, the state is

21:32given the right to move an appeal. The

21:35fact that section 377 makes no reference

21:38to a private complaint does not mean as

21:41far as the complainant is concerned

21:42there being no right of appeal that he

21:44has the liberty to move the divisional

21:46court.

21:47Your right of revision

21:49whenever there is no right of appeal is

21:51unknown in the criminal law. The

21:53position is different under civil law

21:56where under section 115 CPC the High

21:59Court may call for the record of any

22:00case decided by the subordinate court

22:02and in which no appeal lies there to. No

22:05such language is found so far as

22:07criminal procedure code is concerned.

22:24Yelumalai's case law. This Yelumalai's

22:26case was later followed in 1984 Law

22:30Weekly Criminal

22:32by a judgment rendered by his lordship

22:34Justice K.M. Rajan in 1984 Law Weekly

22:37Criminal page 146

22:40in a case of a private complaint for 323

22:43and 341.

22:54377 will come into play.

23:04Are they

23:10One very important two of the very

23:12important provisions of the criminal

23:15procedure code

23:16have been inadvertently

23:18lost sight of

23:21in all these three decisions.

23:25You know, provisional criminal amendment

23:27other in law criminal amendment law

23:30either bond the

23:33or law order or law criminal position

23:36criminal amendment

23:38other criminal amendment criminal 2002

23:42volume two law weekly criminal page 549

23:47by his lordship Justice M. Karpaga

23:48Vinayagam in the case of Janani

23:50Advertising Council by represented by

23:53its proprietor versus Benetton Colman.

23:57You know, the law in the criminal

23:59criminal law criminal case law criminal

24:01amendment criminal law criminal

24:02amendment law in advertent amendment

24:07criminal law criminal

24:09revision before

24:11a sessions court

24:13for enhancement is maintainable. You

24:15know, the criminal ruling Satar Said one

24:17page 20 of 1982 law weekly criminal laid

24:20down the correct law. You know, criminal

24:22criminal law criminal criminal law

24:24criminal criminal

24:26criminal criminal criminal criminal

24:27criminal criminal criminal criminal

24:29but that

24:31law is continued in this um decision in

24:342002 volume two law weekly criminal.

24:36Though it's a single judge's decision,

24:39it contained the correct criminal

24:41criminal

24:42criminal

24:43criminal which the two of two of the

24:46provisions criminal criminal criminal

24:47criminal criminal criminal criminal 386

24:50CRPC and 401 CRPC.

24:53You know, the criminal criminal criminal

24:56criminal criminal criminal criminal

24:58criminal criminal criminal criminal

24:59criminal criminal criminal

25:06in a criminal matter

25:09High Court to come concurrent powers

25:19bail before a sessions court

25:21439 CPC bail before High Court

25:25concurrent

25:27438 CPC anticipatory bail before the

25:30sessions court 438 CPC anticipatory bail

25:34before the High Court concurrent other

25:36boiler

25:37revisional powers of the sessions court

25:40and the High Court are concurrent

25:43It is in the sections where it would

25:45have enough revisional powers in the

25:47day. 397

25:50399

25:52and 401

25:55397

25:57+ 2 99 + 2 401 in the moon section of

26:01money and send the purchase of the

26:02already in conjunction

26:04It will be very clear that the

26:07powers revisional courts powers are

26:09concurrent

26:11in the concurrent powers order set there

26:14386 CPC appellate courts powers in

26:17particular order

26:19revisional court law

26:21inadequacy of sentence occur

26:24and the power had revisional by a

26:27private party is maintainable

26:30and the operating order number clear out

26:32No. What are just by fleetingly let me

26:35refer to 397. 397 when they

26:39revisional powers of district court

26:43397 calling for records to exercise

26:45powers of revision by district court in

26:47the linear path in the inner

26:49subsection one law

26:51High Court or a Court may call for and

26:54examine the record of any proceeding

26:56before any criminal court situate within

26:58its local jurisdiction.

27:00For the purpose of satisfying itself or

27:03himself as to the

27:05correctness,

27:06legality, or propriety of any finding,

27:09sentence, order or recorded or passed or

27:12as to regularity of any proceeding of

27:14such a

27:15court.

27:16397 subclause one in the year

27:19legality or propriety or correctness of

27:22sentence

27:24can be gone into by a revisional court,

27:26namely a Sessions Court. That is very

27:28clearly mentioned in 397 CrPC

27:32uh itself. Now, so this is one provision

27:36which will by section itself which will

27:38clear the doubt that

27:41a revision before for uh for on the

27:43question of sentence is made uh

27:45inadequacy of sentence is maintainable

27:47before a Sessions Court. Then, 399

27:50CrPC. Sessions Judges power of revision.

27:54Sessions Judges power of revision is a

27:56little

27:57subclause two

28:00401 the High Court again and again

28:03powers are called and then the powers of

28:05Sessions Court to come under the 399

28:08subsection two letter.

28:09Upon 401 to go now, High Court's power

28:12of revision letter 386 CrPC Appellate

28:16Court to come under powers are called

28:18other than

28:19High Court revisional court to get

28:22revisional to come under. High Court

28:24revisional powers Sessions Court to come

28:25concurrent at 399 to come under. Number

28:28386 to come under again and again. 386

28:31Appellate Court's order power again and

28:32again. It can alter the sentence,

28:35enhance, or reduce.

28:38I'm bringing the power Appellate Court

28:40to get sentence to come under 386

28:44C Roman three.

28:46The Appellate Court in an appeal for

28:48enhancement of sentence with or without

28:51altering the finding alter the nature or

28:53extent or the nature and extent of the

28:55sentence so as to enhance or reduce the

28:59same.

29:03The sessions court power of enhancement

29:06of sentence in a revision is clearly

29:09contained

29:11in the court itself

29:13and that therefore this Janani

29:16Advertising case law is likely Justice

29:18Karpaga Vinayagam

29:20you know traversed all these provisions

29:22and held that the revision is

29:24maintainable which is even even now it

29:27is

29:28holding the field. Now then came then

29:31after Janani Advertising case then came

29:35the decision

29:37in 2012

29:39volume one law weekly

29:41volume one law weekly criminal

29:43page 100

29:45uh by

29:48the their Lordships Justice Mohan Raman

29:50Akbar Ali

29:52where

29:53Balasubramaniam versus State of Tamil

29:55Nadu where

29:56they they followed Janani Advertising

29:59and held I'm only reading the headnote

30:01in page 701.

30:03Law as laid down in Janani Advertising

30:06case holds the field.

30:07The court of session has got power to

30:09entertain a revision for enhancement of

30:11sentence.

30:12High court when dealing with the

30:13revision can enhance the sentence. The

30:15sessions could get can also do so.

30:17Revisionary powers of the sessions judge

30:20is concurrent with that of the high

30:21court under section 399 subsection one

30:25of the court in view of section 386 CRPC

30:28it should be held that the high court

30:30when dealing with the revision

30:32can enhance the sentence. Therefore

30:35this Janani Advertising was followed in

30:38the

30:39later case also and again Janani

30:42Advertising was followed in 2010

30:45volume 1 Madras Weekly Notes Criminal

30:48DCC page 11.

30:51R.S. Shankar versus Kala by his lordship

30:53Justice T. Sudanthiram

30:55where

30:56the under 397 CRPC, the sessions judge

30:59has got ample power to consider the

31:01grievance of the party regarding the

31:03correctness legality of the sentence. So

31:06saying, Janani Advertising case was

31:09followed and the sessions judge was

31:11directed to consider the

31:14consider the revision for enhancement of

31:16sentence. Therefore,

31:18now

31:19the entire

31:21you know, the decisions and

31:24the the observations made therein will

31:25only go to show

31:27that the participation of a private

31:30party in

31:33proceedings in higher forums in criminal

31:36cases. Now, in a criminal justice

31:39delivery system

31:41victim in the participation of the

31:44very stages like in the in the very

31:47stages now

31:49mother love

31:50pull on the suddenly

31:52and out of the meeting

31:54money more now

31:56mail money and see right money

31:59Now I never put in any ball going to

32:01order money

32:02mail money see see right money up in the

32:05private party money for money to see

32:07right money

32:08if I had to do not so long for the

32:10in the

32:12sections 301

32:14and 302 CRPC

32:18you don't know the section 301 and 302

32:24CRPC like

32:26and if I do 301 CRPC a lot of people do

32:28it like

32:29No, most of the lawyers practicing on

32:31the criminal side even younger lawyers

32:34bail out of the interview money

32:36I don't know if I can do that money

32:39301 CRP

32:48under provision

32:56true letter and spirit of the body

33:10chat Leo interaction

33:13302 CRP

33:16302 CRP C

33:32criminal case before a magistrate

33:34another court matter

33:37or

33:39or private person with the permission of

33:41the magistrate another law

33:43private person engaged leader

33:47the lawyer

33:49another permission or another law

33:53police not below the rank of the

33:54inspector another law the government

33:56advocate another law PP another law APP

33:58another law

34:00advocate general another law

34:02everything I mean advocate general PP

34:06AG another law

34:08no need for a

34:10without permission

34:12another law

34:15person another law permission another

34:17law 302 CRP C different from 301 That's

34:20what I'm trying to say.

34:21It is entirely different from 301.

34:25You know sphere another law.

34:27301 CRP C another law

34:31Public prosecutor can conduct the case

34:33is 301 subsection 1.

34:35301 subsection 2 we all know that in a

34:39in a case there can be a

34:42you know

34:43a lawyer who can be engaged and he will

34:47act as per the directions of the public

34:49prosecutor and he will ultimately file a

34:51written argument saying that there is no

34:54right of audience for a private counsel.

34:57301 subsection 2

34:59If in any such case any private person

35:01instructs a pleader prosecute any person

35:03in any court the public prosecutor or

35:05APB in charge of the case shall conduct

35:07the prosecution and the pleader so

35:09instructed shall act therein under the

35:11directions of the public prosecutor or

35:13APB and may with the permission of the

35:15court submit written arguments after the

35:17evidence is closed in the case. Although

35:19you have to put it in order there

35:21You don't

35:22find clear out one 301 subsection 2 on

35:26the

35:27yellow criminal vertical income

35:31apply outcome

35:32trial before a learned magistrate

35:34trial before an assistant session judge

35:37trial before a session learned session

35:39judge

35:40I don't know that session judge in the

35:42302 in order and I need to do what you

35:43call or with Adam

35:45assistant session judge not 306 a bit

35:48meant to commit suicide 307 attempt to

35:50commit murder at the law and the

35:53assistant session score private by

35:54magistrate we all know 325 326 324

35:59and the money cases in more than one way

36:02forums in the other cases in the other

36:04way 301 subsection 2 apply outcome I

36:07bring in more than good the private

36:09counsel who is engaged by the private

36:12party a victim or a complainant

36:14he can only act as per the directions of

36:16the public prosecutor although

36:18it should come from the public

36:20prosecutor the directions it is not that

36:22this person is instructing the public

36:23prosecutor so

36:26the pleader so instructed therein under

36:28the directions of PPR APP and may with

36:30the permission of the court submit

36:32written argument. That means that he has

36:34no right of audience. This is juxtaposed

36:37to section 302 CRPC.

36:40302 CRPC

36:43or

36:44private counsel who is instructed by a

36:47a victim or a complainant or any person,

36:50he can conduct the prosecution

36:52with the permission of the court.

36:55That is section 302 CRPC. Any magistrate

36:58inquiring into a trying a case may

37:01permit the prosecution to be conducted

37:03by any person

37:04other than the police officer below the

37:06rank of inspector,

37:08but no person other than the AG or

37:10government advocate or PPR APP shall be

37:12entitled to so without such permission.

37:15Provided that no police officer shall be

37:17permitted to conduct the prosecution if

37:19he's taken part in the investigation.

37:22Any person conducting the prosecution

37:24may do so personally or by a pleader. A

37:26pleader for a law. Pleader is defined as

37:30who has got the you know the the

37:32authority practice to practice. That is

37:34also defined in section two of

37:36CRPC. Nowadays, it is it is advocate.

37:40Now,

37:41in the provision

37:43302 there

37:45or or body corporate

37:48or

37:50or magistrate court offense or injured

37:53say or 325 IPC or injured body 302 or

37:57money order

37:58or

37:58I am now on the

38:00inner prosecution or inner working with

38:01a money order

38:03or inner money order money order money

38:04order

38:05or or money order

38:07and the money order I get prosecution

38:10conduct from the money

38:12order

38:12either either now or later in the

38:14provision in work money money order

38:16money order I get money order money

38:18order in the money order in the 302 CRPC

38:20provision in in a money order in the

38:23money order analogy money order

38:28Justice T.S. Arunachalam on the lecture

38:35mentioning about how to conduct a

38:36criminal

38:49308 IPC

38:53308 IPC in

38:56not so good in 1985

38:59another 308 IPC

39:04308 IPC is attempt to culpable homicide.

39:07307 is attempt to murder or

39:10308 is attempt to commit to commit

39:13culpable homicide.

39:15under sections are not you know, pressed

39:17into service often.

39:20302

39:22This has not been invoked by any of us.

39:29I think if

39:30Sanjayan is one of the participants, he

39:32will know.

39:34What are you doing criminal work again?

39:36Misappropriation case.

39:40The case misappropriation case. You know

39:43the client I want to know the already

39:44client to build a good character case.

39:47Magic Lantern magic tricks for the

39:49people in the

39:51Ready better make 302 the CRPC petition

39:53for the Now going to get case going to

39:55get away. Try trial and error to grow

39:58photo below the letter magic state

39:59modified the order to say you come under

40:01301 sub class 2. You did not you know

40:04give us the permission under 302 CRPC.

40:06Of course, there are a lot of a lot of

40:08limitations whether could be conducted

40:10or not. But then there is a provision

40:12here. So You got to you know I don't

40:14know what I am going to 301 is different

40:16from 302 and so on and so on.

40:18Yeah, when the

40:20302 crpc when they

40:25what kind of when they what do they want

40:27another need another need another need

40:29another criminal trial another

40:30magistrate court what do they need

40:32another what do they need sessions court

40:34in the 302 apply when they another

40:36sessions court again need another need

40:38another need another need another need

40:40another need another need another need

40:42another need another need another need

40:43another need another need another need

40:45the reason is not far you know that far

40:47to see that is because of

40:50section 225 crpc

40:53which is a you know a

40:55trial before a court of session chapter

40:5718

40:59you know very clear a

41:01trial to be conducted by public

41:02prosecutor in every trial before a court

41:04of session the prosecution shall be

41:07conducted by a public prosecutor and

41:09there is no qualification no writer

41:10nothing you know

41:12section 302 has been

41:15limited to learn another state court and

41:17not to sessions court and the

41:24but you need a pretty European

41:27or

41:28or or private party or body corporate or

41:30off the year money bonger

41:33if you need a little bit of a video

41:35ready in the in the sooner or later be

41:36now

41:38in the morning section

41:39302 you know 225 crpc another public

41:43prosecutor down or another

41:46another need another need another need

41:47another need another need another need

41:49another need

41:50301

41:51Bravo

41:53they say they say another need another

41:55need another need another need another

41:56need another need 302 what do they need

41:59another need another need another need

42:01another need another need another need

42:03another need another need another need

42:04another need

42:06you need another constitutionally

42:08opposed to section article 21

42:11it is strike down fundamental of being a

42:14slowly

42:15Rajasthan High Court play

42:172001 criminal law journal page 912

42:22Bhopal Singh and others was the state of

42:24Rajasthan. I've been getting a lot of

42:26luck

42:27It is an anomaly okay.

42:29What I can order them

42:31and boy and what can we do to not to be

42:33doing article 21

42:35is there

42:36a fairness of trial

42:37and I like it doesn't satisfy article 21

42:40these three provisions have got to be

42:41struck down.

42:43I've been slowly the virus a question

42:45bunny virus

42:47this section

42:50No but we are we are on a different

42:51virus

42:52I've been assuming

42:53they

42:56honorable the Rajasthan High Court

42:57division bench comprising of Justice

42:59Martha and Justice the AKC and I saw

43:02what what two or three sentences.

43:04I do valid no solid course valid

43:07no section valid

43:09strikes a balance between the the case

43:12of

43:13the victim and the accused it satisfies

43:16article 21 slowly do

43:18I will observe on them

43:20the complaint has no independent

43:22victim

43:23What do you do?

43:24What is not getting in here with it the

43:26complaint has no independent right to

43:27have guilty person punished it is felt

43:30necessary in the larger public interest

43:31to save the people from prosecution by a

43:33private party. Once the offense is

43:35committed it is not against an

43:37individual but is against the entire

43:39society.

43:41The society has realized that the

43:43privilege of the prosecution should be

43:44of the state alone because it is neutral

43:47interceptor as it never loses and never

43:50wins.

43:51This will save innocent persons from

43:52vexatious prosecution and also

43:54harassment during trial.

43:57Such a provision these provisions cannot

43:59be struck down simply because somebody

44:01thinks that the appointment of public

44:03prosecutor is not on the basis of merit

44:06or

44:07that they are susceptible to misuse and

44:09corruption. I'm only reading the

44:11the observations of the learned judges.

44:13Susceptible to misuse and corruption. If

44:15an individual case there is any

44:17grievance against a public prosecutor,

44:19the appropriate remedy is to lodge a

44:20complaint against him before the

44:22appropriate authority. Provisions of

44:24225, 301, and 302 are in consonance with

44:27the concept of fairness of trial as

44:29enshrined in Article 21, and therefore

44:31they are constitutionally valid.

44:35This is again, you know, the sector and

44:37final or the march of law, the evolution

44:40in the money

44:43decision on the other day.

44:45The journey for the journey for the

44:48journey for the the

44:51the journey for the journey for the

44:53journey for the journey for the journey

44:53for the journey for the journey for the

44:54journey for the journey for the journey

44:55for the journey for the journey for the

44:56journey for the journey for the journey

44:57for the journey for the journey for the

44:58journey for the journey for the journey

44:59for the journey for the journey for the

45:00journey for the journey for the journey

45:01for the journey for the journey for the

45:02journey for the journey for the journey

45:03for the journey for the journey for the

45:04journey for the journey But then

45:06the

45:07the journey for the journey for the

45:08journey for the journey for the journey

45:09for the journey for the journey for the

45:10journey for the journey for the journey

45:11for the journey for the journey for the

45:12journey for the journey for the journey

45:12for the journey for the journey for the

45:14482 CRPC inherent power level 100

45:18wash machine for the journey

45:21private complaint

45:23after

45:24the case is taken on file and copies are

45:26issued accused to play wash for the

45:28journey the private complaint and will

45:31be made a party respondent in a wash

45:33petition under 482.

45:35Police case law

45:37original

45:38state was made the party as a complaint

45:41and

45:41as a party respondent.

45:44Later the law developed that no, no, the

45:47de facto complaint and should also be

45:48arranged as a party respondent.

45:51Yeah, that other one

45:53it is it is in all fairness

45:55they should also

45:57know what the proceedings are because

45:58the accused are asking for a washing and

46:00so it should be there. They he is

46:02entitled to know

46:03to have a reasonable opportunity.

46:07I mean it could be already decision

46:09written like that which I was not able

46:11to lay my hands on. But I am really I'm

46:14now quoting JK International versus

46:16state government of NCT Delhi

46:192001

46:21volume two CTC

46:23page

46:24500 64 2001

46:28volume two CTC page 500 61.

46:37By their lordship justice

46:39Thomas

46:41Justice Sethi and Justice Agarwal

46:44I don't know 482 going forward in a

46:46police case

46:47I don't know about the island the

46:48complainant seeks to imply himself.

46:51The high court rejects his employment

46:54petition.

46:55Then the matter goes to Supreme Court.

46:57The Supreme Court says that he he his

47:00participation is necessary. That is

47:02a body corporate already participation

47:04is necessary. Scheme of code of criminal

47:07procedure indicates that the complainant

47:10is not all together wiped out merely

47:13because investigation was taken over by

47:15police and the charge sheet was filed.

47:18Private person who is agreed by the

47:19commission of offense is not debarred

47:21from participating in the trial even in

47:23sessions court where people is only

47:25authority to conduct prosecution.

47:27The dismissal of impleading a petition

47:29filed by complainant by High Court was

47:30set aside and the matter remitted

47:32remanded for disposal after affording an

47:34opportunity to the

47:36the opportunity to the complainant. This

47:38is again one such case where private

47:39parties participation was permitted in a

47:42quash 40 petition saying that he's also

47:44a necessary party.

47:48You there 225 CRPC or PP that can take

47:51on the sessions work here 301 written

47:53argument that I would have 302 CRPC my

47:56state court love private working case

47:58number 3 million anybody would on

48:00I'm being a section salon discuss funny

48:02too the three judges Supreme Court then

48:04in para 11 they say

48:07in view of such a scheme as delineated

48:09above how can it be said

48:12that the aggrieved person

48:14must

48:17keep himself outside the corridors of

48:18the court when the case involving his

48:21grievance regarding the offense alleged

48:23to have been committed

48:24committed corridors whose destroy are

48:26considered by the court already case

48:28number 2 11 11 11 11 11 11

48:30he's got a role to play that is para 11

48:33then they you they in paragraph 12 they

48:36also say

48:38all these would show that an aggrieved

48:39private person is not all together to be

48:42eclipsed from the scenario when the

48:43criminal court takes cognizance of the

48:45offense based on the report submitted by

48:47the police

48:48the reality cannot be overlooked that

48:51the genesis in almost all such cases is

48:54a grievance of one or more individual

48:56that they were wronged by the accused by

48:58committing a offenses against them

49:00I've been so limited

49:02they also in para 13

49:04uh

49:05relay on I'm going to be known on the

49:07protest petition when I'm going to

49:08Bhagwan Singh's case about this and in

49:10case of the government we may now

49:11proceed to point the usefulness of the

49:13observations made by the three judge

49:15bench in Bhagwan Singh versus

49:17Commissioner of Police and then in the

49:19list of the calendar 1985

49:22volume two

49:23Supreme Court cases

49:26page 537 by slot to Justice Bhagwati

49:29as he then was

49:30who spoke for the bench pointed out that

49:33the informer informant having taken the

49:35initiative in lodging the FIR with the

49:37view to initiate investigation by the

49:39police for the purpose of ascertaining

49:40whether any offense has been committed

49:42if so by whom is vitally interested in

49:45the result of the investigation and

49:47hence the law requires that the action

49:49taken by the officer in charge of the

49:50police station on such FIR should be

49:53communicated to him. That is protest

49:55petition on the Bhagwan Singh Bhagwant

49:57Singh b b h a g w a n t Bhagwant Singh

50:02versus Commissioner of Police 1985

50:05volume 2 SCC page 537.

50:09I don't know protest petition order to

50:11money in the RCS CFD notice when they

50:14first informant to put on them I'm being

50:16a the parking below them the the

50:19participation of a private private party

50:21body corporate or in a or criminal

50:23record of a CM

50:24I'm being a deal in the in the record

50:27uh deal money could do So, you think I

50:29don't know when they about the uh

50:33uh the uh participation of a private

50:36party when they the very interesting

50:38case

50:392017

50:41volume one lovely criminal

50:44page 730

50:46I didn't know this one double of what

50:48you Mr. Kalyan noted.

50:50He saw Nandan in the day that he won

50:52industries limited

50:53versus Kishore Badwani and others

50:562017

50:58volume one lovely criminal page

51:01730

51:03That is a case of

51:05uh forgery

51:06465 467 and 471

51:10or private complaint could do

51:12I don't know 1563 forward I if I I

51:16police charge sheet I I don't know when

51:18they we generally I mean uh Portland

51:21filing at the same time

51:24discharge is pension for longer accused

51:28I don't know in the complainant in a

51:30bundle

51:31You know when they discharge pension

51:33money in a argument money to in a

51:35anomaly could do or I can get a

51:38The learned magistrate permits the oral

51:41oral you know

51:42representation of the de facto

51:44complaint.

51:46That was questioned by

51:48the accused in the higher forums.

51:50the accused in the higher forums.

51:53The matter goes up to the Supreme Court.

51:56The Supreme Court says

51:57the as far as 302 CPC is concerned, the

52:02power is conferred on the magistrate to

52:03grant permission to the complainant to

52:05conduct the prosecution anxious

52:07consideration, we are obliged to think

52:09that when a complainant wants to take

52:11the benefit as provided in the 302, he

52:14has to file a written application

52:16making out a case in terms of JK

52:18International 2002 volume 1 Law Weekly

52:21Criminal 131.

52:23So that the magistrate can exercise his

52:25jurisdiction as vested in him and form

52:27form the requisite opinion.

52:29We We only observe that it would be open

52:31to the appellant if so advised file an

52:32application under 302 CPC before the

52:35learned magistrate. That is

52:37302 learn the

52:38provision you get.

52:40Oral permission in the bundle, you make

52:42a written application before the uh uh

52:46the trial and trial magistrate. I've

52:48been so silly. This is decided

52:51permitting the participation

52:53to to participate in a discharge

52:55petition by arguing invoking section 302

52:59CPC a private party. Of course, provided

53:02the learned magistrate to form his

53:04opinion on the requisite consideration.

53:06You know I'm going to wait because 302

53:08says that it is a discretion that

53:09entirely lies within the discretion of

53:12the learned

53:13magistrate. So this is the private

53:16party's participation. The last one in

53:19in

53:21of the case of private party

53:24this party now

53:25is it so relevant to the law?

53:27Uh

53:27article 136

53:30uh

53:30of the constitution law competence of a

53:33private party as distinguished as

53:35distinguished from the state

53:37to invoke jurisdiction of the Supreme

53:39Court under article 136 of the

53:40constitution against judgment of

53:42acquittal by High Court

53:44SLP filed by private parties

53:45maintainable 2003

53:49volume four

53:51current criminal reports

53:53Supreme Court page 158 158

54:00Ramakant Roy

54:02versus Madan Roy

54:04and others

54:06Their Lordships this is Doraisamy Raju

54:07and Arijit Pasayat.

54:10And

54:11there are no quarrels so far as article

54:13136 a private party

54:15can go as against acquittal by the High

54:17Court. Only thing is

54:19that party should have some connection

54:21in a case of National Commission for

54:22Women NCW in a rape case they went you

54:26know under article 136 the Supreme Court

54:28said that you are not in any way

54:30connected with the case and therefore

54:32you cannot. The The this this article

54:35you know 136

54:37can be invoked by a private party. Now

54:41I mentioned about criminal justice

54:43delivery system and the participation of

54:46body capital work

54:48I

54:49mentioned the revision

54:51in a higher forum the participation of

54:53the aggrieved person.

54:56Um portal another vision area his

54:58participation 301

55:00and

55:01302

55:03It is It is so long with it.

55:06One important

55:12decision

55:13I'm sorry amendment

55:15which I should mention here is because

55:18revisional jurisdiction

55:20and trial

55:22You can go on the victim or the

55:23everybody in the provisions but that you

55:25know the appellate jurisdiction so far

55:28as an aggrieved person is concerned.

55:31I have everything in the car.

55:33That came in by way of an amendment

55:35to the criminal procedure Code

55:38in Act

55:395 of 2009 with effect from

55:4631/12/2009.

55:49The amendment to the CRPC to section 2,

55:53victim.

55:54Victim is defined under section 2 W A.

56:00The The victim is introduced, the

56:03definition. Means a person who has

56:05suffered any loss or injury caused by

56:09reason of the act or omission for which

56:13the accused person has been charged. And

56:15the expression victim includes his or

56:18her guardian or

56:21a legal heir. So, it's a person who has

56:23suffered any loss or injury caused by

56:26reason of his act or omission.

56:28The loss or injury definition define

56:32loss definition we will have to take it

56:34along with the injury.

56:36Injury is defined in

56:38IPC in section 44.

56:41Injury The word injury denotes any harm

56:44whatever illegally caused to any person

56:47in body, mind, reputation, or property.

56:51In body, mind, reputation, or property

56:54injury is illegally caused any to any

56:57person. So, in 44 IPC like it is

56:59defined. The only question is whether

57:01the IPC definition can be taken into

57:05CRPC. That again is clear in section 2

57:08Y.

57:09Words and expressions used herein are

57:12not defined

57:13but defined in the IPC

57:16have the meanings respectively assigned

57:17to them in that code. Therefore, they

57:19are complementary to each other. It can

57:22be taken. So, this is the

57:24definition of victim as

57:28as in the amendment in Act 5 of 2009.

57:31Now, what happened? 2009 December was

57:34the amendment that you want to

57:36which came into effect. In 2010 then

57:41the kick start started.

57:44Of course, this is what

57:47quoted decision of his lordship Justice

57:50M.M. Sundaresh. Uh

57:53any lawyer practicing on the criminal

57:54side more particularly in bail

57:57applications everybody will be familiar

57:59with this will be familiar with this.

58:01Sathyavani Ponrani versus Samuel Raj and

58:04another

58:052010

58:08volume two law weekly criminal

58:11page 792.

58:15Now here

58:20the amendment victim under 2 WA.

58:25Along with that amendment section 24

58:29subclause 8

58:31proviso to CRPC which amendment also

58:34coming at the came in at the very same

58:36time

58:37on

58:38with effect from 31 12 2009. Section 24

58:43refers to public prosecutors.

58:45Section 24 subclause 8 refers to central

58:48government or state government may

58:49appoint for the purpose of any case or

58:52class of cases a person who has been in

58:54practice as an advocate for not less

58:56than 10 years as a special PP.

58:59Provided this is an amendment that the

59:01court may permit the victim that is

59:04section 2 WA victim to engage an

59:06advocate of his choice

59:09to assist the prosecution under this

59:11subsection.

59:13This as opposed to 301

59:16or 302.

59:18301 Leo 302 Leo

59:21you will not find engage an advocate of

59:24his choice. You will not find to assist

59:28the prosecution.

59:30Here again

59:33It's only a photo

59:36You know

59:36debatable point and all in the moment

59:38making it.

59:40Assist the prosecution

59:42assist the prosecutor

59:44and get rid of it. I don't know what

59:45happened splitting up but that is my

59:48in the in the this is the provision.

59:50In the amendment assist

59:52advocate engage money prosecution assist

59:55money

59:56for amendment

59:57in the amendment they own

59:592 W A amendment victim and all the

1:00:01definition you

1:00:02301 and 302 and all that you discuss

1:00:05money

1:00:07It's not to just as MMS just says

1:00:10that

1:00:12the victim's counsel

1:00:14is entitled to

1:00:16submit his arguments

1:00:18along with the public prosecutor

1:00:21in a criminal proceeding

1:00:22and in

1:00:24deserving cases in in certain cases he

1:00:26can even examine a witness of course

1:00:29with the permission of the court.

1:00:32That is what he said is

1:00:34his lordship observed

1:00:36that there is right of audience

1:00:38for

1:00:40the victim's counsel engaged

1:00:42as per section 224 sub clause 8.

1:00:45That is the decision

1:00:48which he you know

1:00:50you there is a you will find that there

1:00:53are about eight

1:00:56points that he had

1:00:58given his conclusion to.

1:01:00And

1:01:02mentioning all that he said that the

1:01:03victim

1:01:06counsel has got the right of audience.

1:01:08While

1:01:10you know discussing all these provisions

1:01:13certain observations made by the learned

1:01:16judge his lordship Justice MMSJ

1:01:18will again go to show the victim's

1:01:21participation in the criminal justice

1:01:23delivery system. I just read two two

1:01:26sentences in page number 794.

1:01:29It is further to be seen that the victim

1:01:32is a part of the criminal justice. The

1:01:34case of the prosecution primarily based

1:01:36upon the victim of the person who sets

1:01:38it is in motion. After all

1:01:41the prosecution takes up the case of the

1:01:42victim and such a victim is part of the

1:01:44society.

1:01:46While a decision of the competent

1:01:47criminal court does not affect the

1:01:48society directly, it does so for the

1:01:51victim.

1:01:54When a bail or an anticipatory bail

1:01:55granted by a court of session is

1:01:57amenable to be cancelled at the instance

1:02:00of a de facto complainant before the

1:02:02High Court and section 482 CRPC

1:02:06and under section 482 CRPC similarly in

1:02:09a criminal proceeding which is sought to

1:02:10be quashed, de facto complainant is to

1:02:13be heard. The decision I just mentioned.

1:02:16A transfer application can be filed by a

1:02:17victim. If that is the position, it

1:02:20cannot be said that a post

1:02:22that a person shall not be allowed to

1:02:24conduct the prosecution along with the

1:02:25public prosecutor by supporting the case

1:02:28of the prosecution.

1:02:31About the public prosecutor also, his

1:02:33lordship MMS J says in page number 795.

1:02:37It is also to be noted more often than

1:02:39not a PP may not be aware of the facts

1:02:42which the victim is in possession of.

1:02:44Further, a PP is instructed by police

1:02:46and not by the victim. It could also be

1:02:48seen that in a changing society, the

1:02:50nature of offenses also get changed

1:02:52according to the situation.

1:02:57He also

1:02:59you know, traverses article 14

1:03:01article 21, 21 due process of law, 14

1:03:05equality and also 39 A about equal

1:03:09opportunity, 39 A of the constitution

1:03:11later amendment and says that it is the

1:03:14duty of the state to ensure that every

1:03:15citizen of the country should have the

1:03:17free and fair investigation and trial.

1:03:21Now,

1:03:23among the fair trial for

1:03:25fair

1:03:26from all the fair trial presupposes a

1:03:29fair investigation.

1:03:32Upon investigation in city

1:03:35trial in city, there should be an equal

1:03:37playing field for both the complainant

1:03:41the aggrieved person body corporate or

1:03:43equal

1:03:44equal playing field are going to be

1:03:47under under under cricket pitch or the

1:03:49football ground or equal are going to be

1:03:51between the two of them or other than

1:03:52that

1:03:52only if we agree

1:03:54other other other than that other than

1:03:55that

1:03:56therefore at least give him this right

1:03:58of right of audience to argue up in the

1:04:01but the one upon upon Rani's case.

1:04:04But unfortunately

1:04:07the latest decision in this regard

1:04:10I don't know

1:04:12um

1:04:14This this is uh

1:04:16this is familiar to many.

1:04:18Rekha Murarka versus State of West

1:04:20Bengal

1:04:22Supreme Court of India.

1:04:24The date of judgement is 20 11 2019.

1:04:30And if my remembrance goes it is AIR

1:04:332020 Supreme Court page 100 subject to

1:04:36correction.

1:04:38In that

1:04:40the judge the his Lordships were Justice

1:04:42Mohan M. Shantanagoudar and Justice

1:04:44Krishna Murari

1:04:46Satyawani Ponrani and similar such cases

1:04:49of various High Courts have been

1:04:51diluted.

1:04:53Diluted by native

1:04:5624 sub clause 8 in the Indian city

1:04:58301 sub clause 2 in the Indian city and

1:05:01the mighty right of audience could

1:05:02become a mighty in the world meaning of

1:05:04number one in the Indian city.

1:05:07I have a

1:05:09or body corporate

1:05:11public practice to public prosecutor or

1:05:13AP promoter public prosecutor

1:05:19up buddy a PP 1 B

1:05:23not a good movie that is

1:05:25or Kelly Kelly and naka

1:05:28a p a p p to public prosecutor to Sally

1:05:31other cake salad in the window

1:05:32in the water argument with an argument

1:05:34of what to call in the other one other

1:05:36one cake yellow belly for some reason or

1:05:38other of dinner

1:05:40need him under 10 million

1:05:42under body temperature need him under 10

1:05:45million in the window

1:05:47need him under 10 million 1 2 1 2 1 2

1:05:493 1 1 3 1 1

1:05:511 6 5 1 6 5

1:05:54Indian evidence act other

1:05:57than a lot of people to get in other

1:05:59than a lot of people to get in Maria

1:06:01credit card in the Maria near a boy

1:06:04public prosecutor saying that I send you

1:06:06none boy other

1:06:08argue parallel up in the garden it will

1:06:11be working private jet engine of the

1:06:13mirror that you want to get in

1:06:15I don't know how to get in there there

1:06:16there private party counselor other than

1:06:18public prosecutor conflicting I don't

1:06:21know how to get in there there there it

1:06:22is really you know you find which is to

1:06:25be taken note of up in the garden and I

1:06:27don't know how to get in there there

1:06:28there

1:06:29or public prosecutor in the independent

1:06:31officer of the garden and I don't know

1:06:32how to get in there there there he's

1:06:34taking sides in the mirror that I don't

1:06:35know he's neither interested in

1:06:37he's only you know placing before the

1:06:40garden he's he's you know he's not a

1:06:42prosecutor he's only a prosecutor in the

1:06:44mirror that I don't know how to get in

1:06:45there there there I don't know how to

1:06:46get in there there there in the

1:06:48that you want to get in there there

1:06:49there I don't know how to get in there

1:06:50there there

1:06:51when I don't know how to get in there

1:06:52there there I don't know how to get in

1:06:53there there there I don't know how to

1:06:54get in there there there I don't know

1:06:55how to get in there there there I don't

1:06:56know how to get in there there there I

1:06:57don't know how to get in there there

1:06:58there I don't know how to get in there

1:06:58there there I don't know how to get in

1:06:59there there there I don't know how to

1:07:00get in there there there I don't know

1:07:01how to get in there there there I don't

1:07:02know how to get in there there there I

1:07:03don't know how to get in there there

1:07:04there I don't know how assisting

1:07:06the prosecution will not mean that hear

1:07:08his voice

1:07:10along with the public prosecutor in the

1:07:12land generally and the decision when

1:07:13they diluted this is you know the so far

1:07:18as the

1:07:20the one upon Ronnie's case.

1:07:23Then what happened

1:07:25more interestingly

1:07:27the

1:07:31There is one other section

1:07:33which has been amended

1:07:36under Act 5 of 2009

1:07:38regarding appeal by a victim.

1:07:42Appeal by a victim

1:07:44is introduced

1:07:46by way of a proviso to

1:07:48section 300

1:07:5072.

1:07:51I know I'm trading into a very sensitive

1:07:53area in the in the present juncture, but

1:07:57I will be very careful.

1:07:59372

1:08:00CRPC

1:08:03Section 372 CRPC

1:08:06starts by saying

1:08:08no appeal

1:08:10to lie unless otherwise provided.

1:08:13Chapter 29

1:08:16No appeal shall lie from any judgment or

1:08:18order of a criminal court except as

1:08:20provided for by this court or by any

1:08:23other law for the time being in force.

1:08:26This is amendment proviso provided that

1:08:28the victim to WA victim shall have a

1:08:31right to prefer an appeal against any

1:08:34order passed by the court

1:08:36acquitting the accused

1:08:38or convicting for a lesser offense or

1:08:40imposing inadequate compensation the

1:08:42moment

1:08:43acquittal lesser offense inadequate

1:08:46compensation more than appeal for a long

1:08:48victim and such appeal shall lie to the

1:08:50court to which an appeal ordinarily lies

1:08:52against the order of conviction of such

1:08:54court.

1:09:04This is the provision read along with

1:09:06section 2 W A.

1:09:13frequently we are put up a particular

1:09:15now

1:09:16138

1:09:18check this on a particular now

1:09:20Check this on a particular 372 which

1:09:23appeal against that particular were

1:09:24filed before the

1:09:26learned uh

1:09:27session judge. 372 because

1:09:30one point that is to be noted in section

1:09:33372 proviso is

1:09:35the right of appeal is an independent

1:09:37statutory right.

1:09:39It is not you know that is

1:09:41no no there are no you know tax attached

1:09:44to it strings attached to it

1:09:46subject to permission leave or nothing.

1:09:48It's a independent statutory right which

1:09:50was being used

1:09:53invoked

1:09:54in 138 appeal against that particular.

1:09:57The matter went to the High Court

1:10:00Madurai bench before Justice P.R.S. J.

1:10:02Justice P.R. Shivakumar. Selvaraj versus

1:10:05Venkatachalapathi

1:10:072015

1:10:10volume one Madras Weekly Notes Criminal

1:10:14BCC

1:10:16page 26

1:10:20Selvaraj versus Venkatachalapathi

1:10:23The

1:10:24honorable judge

1:10:27discussed the definition of victim

1:10:30discussed section 372 proviso

1:10:34and also discussed

1:10:36section 378

1:10:39subclause four

1:10:41criminal procedure code

1:10:44section 378 reading the other

1:10:45subsections 378

1:10:48subclause four

1:10:50criminal procedure code

1:10:53If an order of acquittal is sub

1:10:55subsection four

1:10:57If an order of acquittal is passed in

1:10:59any case instituted upon a complaint

1:11:03in any case instituted upon a complaint

1:11:06now

1:11:10What is criminal what I could then he

1:11:11put on it?

1:11:26This is 378 subsection four.

1:11:29It doesn't any make any other

1:11:32distinction or

1:11:34you know

1:11:35category it doesn't categorize the party

1:11:38at all in any case instituted

1:11:41upon a complaint.

1:11:44And the High Court on an application

1:11:45made to it by the complainant in this

1:11:47behalf grants specially to appeal from

1:11:49the order of acquittal. The complainant

1:11:51may present such an appeal to the High

1:11:53Court.

1:11:57PRS J and I say

1:12:01138 appeals in law instituted upon a

1:12:05complaint.

1:12:06private complaint and he put on that

1:12:09I put it in what would it

1:12:11I'm going to move to 378 subsection four

1:12:13letter on earlier.

1:12:15372 victim number one more time there

1:12:18car and I'm 378 subsection four in the

1:12:22day

1:12:23378 provides a code within the code.

1:12:27And the special provision for dealing

1:12:29with appeals against acquittal in

1:12:30complaint cases

1:12:32general provision under section 372

1:12:35stands excluded by the special provision

1:12:38under section 378 so saying

1:12:41he he ruled that appeal against

1:12:44acquittal in all 138 cases which are

1:12:47instituted on a private complaint

1:12:50they are appealable only to the High

1:12:51Court subject to the leave granted by

1:12:54the honorable High Court.

1:12:56This then

1:12:57you know, went to his lordship Justice

1:13:00S.M.J.

1:13:01in the

1:13:03decision

1:13:04in 2016

1:13:07volume two Law Weekly Criminal

1:13:11page 26.

1:13:14Ganapathi versus Senthilvel.

1:13:18Now,

1:13:20the

1:13:22the learned judge his lordship Justice

1:13:24S.M.J. held

1:13:26that

1:13:27he disagreed with the view of the

1:13:31P.R.S.J. and he held that

1:13:34when the victim

1:13:35and the complainant are one and the same

1:13:38then section 372 will come into play.

1:13:42And that is a statutory the right of

1:13:44appeal can be, you know, invoked. An

1:13:48appeal against acquittal in such cases

1:13:51will lie before the District and

1:13:53Sessions Court.

1:13:55At any rate, because there are plethora

1:13:57of decisions for and against

1:14:00he

1:14:01his lordship, you know, observed like

1:14:03this. Uh he said, "In view of the

1:14:06discussions made thus far, with due

1:14:08respect, I regret I find it difficult to

1:14:12persuade myself to fall in line with the

1:14:14view taken by this court in Selvaraj's

1:14:15case and also the judgments of various

1:14:18courts holding the view that the victim

1:14:19complainant has got no right to appeal

1:14:21under 372 of the CrPC. I agree with the

1:14:24view taken by various High Courts taking

1:14:26the view that the complainant who

1:14:27happens to be a victim has got a right

1:14:29of appeal under proviso to 3

1:14:32372 of the CrPC. I deem it appropriate

1:14:37to place the matter

1:14:39before my lord the honorable Chief

1:14:40Justice for referring the following

1:14:42questions to the larger bench." I've

1:14:44been told he he framed his lordship

1:14:47framed certain questions and it went up

1:14:49to the larger bench, namely 2016

1:14:54volume two law weekly criminal

1:14:56page

1:14:5726.

1:14:59Ganapathy versus Senthilvel

1:15:01the full bench of their lordship Justice

1:15:03V. R. S. J. Justice V. Ramasubramanian,

1:15:05Justice N. Kirubakaran and Justice S.

1:15:07Vaidyanathan

1:15:08and the learned judges

1:15:11disagreed with P. R. S. J. Justice P. R.

1:15:14Sukumaran's

1:15:16finding

1:15:17and upheld S. N. J.'s uh

1:15:20decision and maintained that the appeals

1:15:24are uh you know maintainable before the

1:15:27court of

1:15:29the assistant sessions judge in page

1:15:31number 40 of the

1:15:33uh judgment of the full bench uh in

1:15:35Madurai

1:15:37bench of the Madras High Court.

1:15:39Para 31 one, a victim of the crime who

1:15:42has prosecuted an accused by way of a

1:15:43private complaint

1:15:45has a statutory right of appeal within

1:15:48the limits prescribed under section 73

1:15:5072 CrPC

1:15:52in a private uh the term victim

1:15:55sorry, a victim as defined under 2W(a)

1:15:57of the CrPC does not cease to be a

1:15:58victim merely because he also happens to

1:16:00be a complainant and he can avail all

1:16:03the rights and privileges of a uh of a

1:16:06victim also. And so saying

1:16:09the appeal there are other findings. If

1:16:10I go to other findings, it'll be you

1:16:12know uh

1:16:13a lot of time consuming. I only I'm only

1:16:16on this board that

1:16:18uh in a private complaint instituted on

1:16:21a complaint

1:16:23namely 138

1:16:25both the victim and the complainant are

1:16:27one and the same and therefore 372 can

1:16:30be

1:16:31uh invoked. The right of statutory right

1:16:33of appeal will will come into play.

1:16:36The the the

1:16:39uh this is the um

1:16:40full bench

1:16:41uh

1:16:42reference judgment.

1:16:44Then in that judgement

1:16:47Satyapal Singh's has been quoted.

1:16:50Satyapal Singh's case is one from

1:16:53the Supreme Court

1:16:55in I am I am able to get it from

1:16:57legal eagle

1:16:59Satyapal Singh versus the state of MP

1:17:01and others

1:17:022015 legal eagle

1:17:05Supreme Court 825.

1:17:07That was a case of the police case 498A

1:17:11and 304B.

1:17:13It was tried before the learned session

1:17:14judge.

1:17:16The deceased woman's

1:17:18father was the complainant.

1:17:20The trial in the trial the accused got

1:17:23acquitted.

1:17:25The father, the complainant, the victim

1:17:28filed an appeal against acquittal

1:17:31invoking section 372 CRPC

1:17:34to the High Court.

1:17:36The accused contended that

1:17:38he ought to get he ought to have got for

1:17:40the leave under section 378 sub clause 4

1:17:43and this is not maintainable.

1:17:46In Satyapal Singh's case

1:17:48in

1:17:48para 13

1:17:50um, the honorable Supreme Court holds

1:17:54whether the appellant, that is

1:17:56the appellant is the father of the

1:17:57deceased has statutory right to prefer

1:17:59an appeal to the High Court against

1:18:01order of acquittal under proviso to 372

1:18:04without obtaining the leave of the High

1:18:05Court as required under 378 CRPC.

1:18:09This court is of the view

1:18:10that

1:18:12the right of questioning the correctness

1:18:14of the judgement and order of acquittal

1:18:16by preferring an appeal to the High

1:18:18Court is conferred upon the victim

1:18:19including the legal heir and others as

1:18:21defined under 2 WA of CRPC under the

1:18:24proviso to 372

1:18:26but only after obtaining the leave of

1:18:29the High Court as required under section

1:18:30378 sub clause 3 CRPC. Somebody is

1:18:33asking the citation. Satyapal Singh

1:18:36versus the state of MP and others.

1:18:40It is 2015 legal eagle Supreme Court

1:18:43825. Somebody has mentioned India Kanoon

1:18:46also here. So they said leave to appeal

1:18:50is necessary, but only one question here

1:18:53that I would like to pose.

1:18:55When it when the Supreme Court I mean it

1:18:57is only a debatable point. I'm not

1:18:59finding picking holes with the you know

1:19:01order of the Supreme Court.

1:19:03When Supreme Court says the appeal is

1:19:06maintainable under Section 372 CRPC.

1:19:10Then it becomes an appeal by way of an

1:19:12by way of a right of the person to file

1:19:14the appeal as it as it is said that it

1:19:16is an independent statutory right. In

1:19:18which case can it be said that a leave

1:19:20of the court is necessary? It becomes

1:19:23mutually contradictory. And that is

1:19:26therefore

1:19:27this I'm just

1:19:29putting it across for a debate

1:19:33for your kind consideration. But then

1:19:37then came the latest one.

1:19:40You know this is the reason why

1:19:42our Madras High Court has stayed

1:19:45the entire

1:19:46appeals

1:19:47under Section 138 CRPC and has also

1:19:52the

1:19:53the the

1:19:55the filing of appeals.

1:19:58In 2019

1:20:01Criminal Law Journal

1:20:03page 532

1:20:06Mallikarjun Kodagali

1:20:09versus state of Karnataka

1:20:12page 532

1:20:142019 Criminal Law Journal.

1:20:18Now what happened?

1:20:20This Mallikarjun Kodagali was was an

1:20:22injured.

1:20:24He filed he is the first informant also.

1:20:28His case is tried as a sessions case.

1:20:31In the sessions case the accused are

1:20:33acquitted.

1:20:34The matter goes up in appeal against

1:20:36acquittal

1:20:38under section 372.

1:20:41The question arose whether

1:20:43a deal is to be obtained

1:20:45and whether section 372 by itself could

1:20:47be invoked.

1:20:49The honorable Supreme Court interpreted

1:20:52section 2 W A of the CRPC and section

1:20:56372 CRPC and said proviso under this in

1:21:00para 77

1:21:02the honorable Supreme Court held

1:21:04under the circumstances on the basis of

1:21:07the plain language of the law and also

1:21:09as interpreted by several high courts

1:21:11and in addition to the

1:21:12resolution of the General Assembly of

1:21:14the UN

1:21:15it is quite clear to us the victim as

1:21:17defined under section 2 W A of CRPC

1:21:20would be entitled to file an appeal

1:21:22before the court to which an appeal

1:21:23ordinarily lies against order of

1:21:24conviction.

1:21:26It must follow from this that the appeal

1:21:28filed by Kodagali before the high court

1:21:30was maintainable and ought to have been

1:21:31considered on its own merits. It was

1:21:33under 372. Later

1:21:35as far as the question of grant of

1:21:37special leave is concerned

1:21:40we need not be overwhelmed by the

1:21:42admissions submissions made at the bar.

1:21:45In para 78, the language of the proviso

1:21:48to 372 of CRPC is quite clear

1:21:51particularly when it is contrasted with

1:21:53section 378 sub clause 4 of CRPC.

1:21:56The text of this provision is quite

1:21:58clear and it is confined to an order of

1:22:00acquittal passed in a case instituted

1:22:03upon a complaint. That is 378 (4).

1:22:06Another private complaint cases done

1:22:08under forum done.

1:22:10The word complaint has been defined

1:22:11under 2 D and refers to any allegation

1:22:14made orally on writing to a magistrate.

1:22:16This has nothing to do with the lodging

1:22:18or registration of FIR and therefore it

1:22:20is not necessary to consider the effect

1:22:22of a victim being the complainant as far

1:22:24as 372 CRPC is concerned.

1:22:27In the para

1:22:29finding the

1:22:30observations of the court one the dome

1:22:34378 for reiterate Supreme Court 106 378

1:22:38subsection 4 will apply to all cases

1:22:41instituted on a private complaint and

1:22:43one that period

1:22:44Honorable Madras High Court by

1:22:50three of the honorable judges MMSJ this

1:22:53is V Barathidasan and justice

1:22:56stayed all the appeals

1:23:00quoting Mallikarjun Kodagali versus

1:23:02state of Karnataka saying

1:23:06prima facie such an appeal because in

1:23:08that case prima facie such an appeal can

1:23:10be maintainable only before this court

1:23:12under 378 for considering all these

1:23:14views you would like to get the views of

1:23:16the association as the percussion would

1:23:17be of a large impact. Therefore,

1:23:19registry is directed to issue notice to

1:23:21advocate association bar association

1:23:22women lawyers indicating the date of

1:23:25hearing as 25 to 2024 the matter

1:23:28so and so

1:23:29this was

1:23:31this has been stayed. Therefore, this is

1:23:32where the matter stands so far as the

1:23:35appeal by so far as the police case is

1:23:38concerned that is it is

1:23:41there is no quarrel at all so far as the

1:23:43appeals

1:23:45that are maintainable under section 372

1:23:48then comes

1:23:50in the criminal justice delivery system

1:23:52sir

1:23:55because I have protest petition and in

1:23:56further investigation.

1:24:03The criminal justice delivery system

1:24:05there

1:24:06um

1:24:07such with your attorney

1:24:10higher forums appeals and revisions

1:24:15another aspect of the participation of

1:24:17victim in criminal justice delivery

1:24:19system is protest petition

1:24:23people I mean you do it now

1:24:27juniors

1:24:31knowledge

1:24:33uh

1:24:34get going

1:24:36the

1:24:41protest petition of being there

1:24:44put the resolution

1:24:48I don't mention money define

1:24:51I mean get that

1:24:52I don't want to be able to make

1:24:55I don't even come over there in the

1:24:56protest petition get it

1:24:58It is a judgement law.

1:25:01You have to do the judgement law of one

1:25:03of them all.

1:25:04It is a good morning now in the uh or a

1:25:06decision by the one thing A R 1985

1:25:10Supreme Court page 1285 I don't know

1:25:13what the equivalent decisions

1:25:15A R 1985 Supreme Court

1:25:18page 1285 I think it's better when I get

1:25:21the other SEC I don't want to tell you

1:25:22anything there.

1:25:24I'm the I'm the

1:25:26decision A R 1985 Supreme Court

1:25:31page

1:25:32uh 1285

1:25:35I don't know what the

1:25:36uh

1:25:38the complainant

1:25:40in a

1:25:43in a case where it is closed

1:25:46in a the complainant in a case where it

1:25:48is closed

1:25:49He has got to be given an opportunity by

1:25:52being informed the result of the

1:25:54investigation.

1:25:56I don't even get the solution.

1:25:59I don't want to think it's like

1:26:02I would like to have you put it over

1:26:03there.

1:26:05I don't even have anything to put it

1:26:06over there.

1:26:07I would have to let

1:26:08protest petition I don't know I've been

1:26:10getting the A R 1985 Supreme Court page

1:26:131285 by the lordship Justice P N

1:26:15Bhagwati Amarendra Nath A Justice A N

1:26:18Sen and Justice Madan.

1:26:21In a case where the magistrate to whom a

1:26:22report is forwarded under 173(2) decides

1:26:25not to take cognizance of the offense

1:26:27and to drop the proceedings and takes

1:26:28the view that there is no sufficient

1:26:30ground for proceeding, the magistrate

1:26:32must give notice to the informant,

1:26:33provide him an opportunity to be heard

1:26:35at the time of consideration of the

1:26:36report.

1:26:40In an appeal of that number

1:26:42protest petition is being filed.

1:26:45One important uh

1:26:47aspect which is to be noted

1:26:52police in order to negative report, that

1:26:54is other one to be reported to someone

1:26:56in a negative report to someone again.

1:27:00The

1:27:02You don't know how to

1:27:04police in order to report when I have to

1:27:06operate it in the column we are the

1:27:07other positive or negative or negative

1:27:08or negative or negative or negative

1:27:11You know you know I could uh don't know

1:27:13what what reason.

1:27:16Because that is for found in various

1:27:18Supreme Court judgments. Police in order

1:27:20to do the final authority court of the

1:27:22final authority in the magistrate of the

1:27:24court.

1:27:26You know

1:27:27you know you don't want to debate the

1:27:28point of which you can

1:27:30The police in a criminal case

1:27:33is as much a litigant

1:27:37as the

1:27:38private party or an accused in a

1:27:39criminal case.

1:27:42Upper police or case of close for dinner

1:27:45then it it becomes as though he's taking

1:27:47the role of a judge.

1:27:48So, that needs to be cabined and

1:27:51confined. And that that should be have

1:27:53that should be some checks and balances.

1:27:55Police told her they allow me

1:27:57gospel truth and to come with you there.

1:28:00I'm being there with a problem that you

1:28:02don't know the in the money order law

1:28:04developed by you I'm going to close for

1:28:06dinner protest petition can be filed in

1:28:08order to do that. You know you don't

1:28:09know what they are doing there.

1:28:11Remember classic decision

1:28:14in this uh um

1:28:15aspect is

1:28:171987

1:28:20Supreme Court cases

1:28:23criminal

1:28:25page 82

1:28:29equal at 1987

1:28:32volume one SCC

1:28:35page 288

1:28:37in the 1987 SCC criminal page 82 or at

1:28:4196

1:28:44Shivanandan Paswan opponent

1:28:47for the state of Bihar and another

1:28:51The judges honorable judges in this case

1:28:56His lordship the Chief Justice as he

1:28:58then was Justice P.N. Bhagwati

1:29:00Justice E.S. Venkataramiah

1:29:03Justice V. Khalid

1:29:05Justice G.L. Oza

1:29:07and Justice S. Natarajan

1:29:09comprising of these five judges

1:29:11They went into the question of

1:29:12withdrawal of prosecution under 321

1:29:14CRPC.

1:29:16Other party

1:29:17uh you know discuss when we do that

1:29:20incidentally

1:29:22there is a an orbiter by

1:29:25their lordship Justice P.N. Bhagwati and

1:29:27Justice Oza

1:29:30I cannot do better than

1:29:32the observations made in the orbiter and

1:29:34another

1:29:35or not in the sentence I will have to

1:29:37read What is the treatment given to

1:29:40a police report?

1:29:42Be it a positive or a negative report.

1:29:46And what is the role of a by this

1:29:48learned magistrate in those cases? That

1:29:50is

1:29:51this orbiter

1:29:52in page 96 the police has no absolute or

1:29:55unfettered discretion

1:29:57whether to prosecute an accused or not

1:29:59to prosecute him.

1:30:02In our constitutional scheme

1:30:04conferment of such absolute and

1:30:06uncanalized discretion

1:30:08would be violative of the equality

1:30:10clause of the constitution.

1:30:12The magistrate is therefore given the

1:30:14power

1:30:15to structure and control the discretion

1:30:17of the police.

1:30:18If the magistrate finds from the report

1:30:20made by the police either on initial

1:30:21investigation or on further

1:30:23investigation

1:30:24direct uh

1:30:26uh you know

1:30:29If the magistrate finds from the report

1:30:30made by the police either on initial

1:30:32investigation or on further

1:30:33investigation direct to the magistrate

1:30:36that for MFAC an offense appears to have

1:30:37been committed the magistrate is

1:30:39empowered to take cognizance of the

1:30:40offense notwithstanding the contrary

1:30:43opinion of the police. Police case now

1:30:45case pull up order relay up being sold

1:30:47in the lump cognizance of the pull up

1:30:49order lump in the event the magistrate

1:30:50has

1:30:51filed a positive report up there and

1:30:54down other magistrate mirror killer at

1:30:57any rate the discretion of the police to

1:31:00prosecute is thus cabin and confined and

1:31:04subject to the ability of revision and

1:31:06the magistrate is made the final arbiter

1:31:08on this question. This is why you know

1:31:10the law is developed over over close

1:31:13money now under uh

1:31:18other one day uh opportunity for filing

1:31:21the protest petition for the criminal

1:31:23appeal the close one more day the

1:31:25opportunity are you going to put it on

1:31:27the air

1:31:28the are you going to put it on the air

1:31:29just over for for practical the

1:31:32court of so and so court of magistrate

1:31:34and put the case number put the

1:31:36crime number put the

1:31:38final report filed by the investigating

1:31:40officer take notice that in the case

1:31:42registered by so and so on your

1:31:44complaint the IO has filed a final

1:31:46report referring it as mistake of fact

1:31:49or law

1:31:50mistake of law or law

1:31:52further action dropped or law referred

1:31:54charge sheet or law up in so you need to

1:31:56you are up required to appear in court

1:31:58on such and such a day

1:31:59up in court up in boy protest petition

1:32:02court day

1:32:03other number

1:32:17There are checks and balances of India.

1:32:20If a protest petition portal

1:32:23Suppose on the number of Google product

1:32:25there or police case that investigate

1:32:27money in the land of offenses are not

1:32:29made out. Now that close contract in the

1:32:31court of equal to go.

1:32:32I mean I got to go number one there.

1:32:34under and then the final report the

1:32:36other which I took on the path to it is

1:32:39really a lot of Syria number protest

1:32:40petition portal. And the protest

1:32:42petition portal portal

1:32:44The learning magistrate has got the

1:32:45following options.

1:32:47one and the protest petition

1:32:50Our solicitor in the police report Syria

1:32:53portal closure accept under the one.

1:32:56And the closure accept under the alarm

1:32:58in the learning 30 for the investigation

1:33:00for the opening solar 102. Mulan

1:33:03and the protest petition accept money

1:33:06private complaint edited process issue

1:33:08money other one there may come to

1:33:11criminal private complaint another

1:33:13opinion of the year 50.

1:33:14It is there.

1:33:16The latest in

1:33:18landmark decision in this in this aspect

1:33:21is

1:33:24Vishnu

1:33:26Tiwari Vishnu Kumar Tiwari was state of

1:33:30Uttar Pradesh.

1:33:312019

1:33:34volume 8 Supreme Court cases

1:33:37page 27.

1:33:42It is in the solar panel.

1:33:46Police B report that is negative report

1:33:48filed by now.

1:33:51protest petition

1:33:52portal

1:33:54under police report in period year

1:33:58section

1:33:59sub clause 1 B letter

1:34:02cognizance at the

1:34:04200 to 202 procedure follow for number

1:34:08process issue for me

1:34:10case another plan

1:34:12I'll be into a point in the decision of

1:34:14the plan

1:34:16I believe it They also going to another

1:34:18question.

1:34:19Protest petition can be treated as a

1:34:22complaint. I'll be into a solution

1:34:25I'll be into a solution Protest petition

1:34:27in most of the cases may not satisfy the

1:34:30requirement of a private complaint

1:34:32because

1:34:33protest petition the one day on the

1:34:36police negative report lead to say I let

1:34:38other say I let I'll be into a solution

1:34:40I'll be picking holes in the police

1:34:41report I'll be ground of a bill money or

1:34:44to do I just set aside get the ball I'll

1:34:47be 2D definition of complaint the one

1:34:49o'clock I'll be I'll be I'll be list of

1:34:51witnesses in the garden protest petition

1:34:53the so It is not always practicable to

1:34:57treat it as a protest petition though

1:34:59the decision says it can be treated. So

1:35:02in such cases it will be advisable that

1:35:05when a police case is referred and

1:35:08closed try to be closed and if a protest

1:35:10petition is filed and if the learned

1:35:13magistrate accept the protest petition

1:35:15then it is always advisable to go with

1:35:17the private complaint and follow the

1:35:19procedure instead of a protest petition

1:35:21being treated as a complaint because it

1:35:24may not satisfy the requirements of the

1:35:25complaint or the original complaint for

1:35:28harm and also on me that can be taken as

1:35:31the private complaint. In in

1:35:34cases where

1:35:36complaint for 21563 letter we are

1:35:38referring a police for you close up for

1:35:40you

1:35:41original number 200 CRP civil court a

1:35:43complaint one day it can be taken as the

1:35:47private complaint and procedure can be

1:35:49followed. Therefore so far as the

1:35:52protest petition is concerned,

1:35:54the private party, a victim, is given a

1:35:56role.

1:35:57He is made known about the fate of the

1:36:00case, police case, that it is closed for

1:36:03such and such aspect. If it is not

1:36:05satisfied with the police closure

1:36:06report, he goes with the protest

1:36:08petition and initiates the proceedings

1:36:11either by way of a private complaint or

1:36:13by way of a further investigation that

1:36:16is, you know, done. Then

1:36:20participation in appeal or revision

1:36:23participation in trial

1:36:25participation by protest petition

1:36:29and then

1:36:30participation in

1:36:33further investigation. Sriram

1:36:36participation in further investigation

1:36:40Now, what do you want to tell me?

1:36:47Private party, a de facto complainant or

1:36:49first informant.

1:36:53Can he demand a further investigation

1:36:55under 173 sub clause 8?

1:36:59Police, of course, the investigating

1:37:01officer, if there is if there are fresh

1:37:02materials

1:37:03he can go for a uh you know, further

1:37:07investigation under 173 sub clause 8.

1:37:11Whether a private party I mean, because

1:37:13we are under that under that topic

1:37:15whether he can go for a further

1:37:17investigation.

1:37:19No.

1:37:21I don't know whether

1:37:24uh advocate Venkatesan Trichy, yes, but

1:37:27this is still pending consideration. I

1:37:28don't know what you are saying. Because

1:37:29of the definition of victim this is now

1:37:32pending consideration. I will just This

1:37:34I did not circulate it because I did I

1:37:36got it only now.

1:37:39Supreme Court of India record of

1:37:41proceedings.

1:37:43The order is dated 7th May 2018.

1:37:50Jagdish Pat Pat

1:37:52Uh I don't know how to pronounce it.

1:37:54Jagdish P A T N I Patni.

1:37:57Jagdish Patni versus Nikita Prakash

1:38:00Patni and others.

1:38:03Criminal Appeal 773 of

1:38:062017

1:38:09which is in the court of High Court of

1:38:12Bombay.

1:38:13SLP is

1:38:143806 of 2018.

1:38:183806 of 2018.

1:38:21It arises from a criminal appeal of

1:38:23Bombay High Court.

1:38:24Jagdish Patni versus Nikita Prakash

1:38:27Patni and others.

1:38:29I only one paragraph which I will read

1:38:31because it's still pending

1:38:32consideration.

1:38:34By the Lordships Justice Chelameswar and

1:38:36Justice Sanjay Kishan Kaul.

1:38:39The High Court dismissed the case of the

1:38:41petitioner.

1:38:43By the impugned order

1:38:46relying on a judgment of this court

1:38:48reported in Rita Nath

1:38:50versus State of West Bengal and others.

1:38:53And I separate one line. 2009 volume 9

1:38:56SCC

1:38:57129.

1:38:59Wherein it was held that the criminal

1:39:01court is not competent to direct further

1:39:04investigation

1:39:07at the instance of the de facto

1:39:08complainant.

1:39:10Further

1:39:11that judgment is rendered on the basis

1:39:13of law Sarita.

1:39:15Uh further that judgment is rendered on

1:39:18the basis of the law as it existed prior

1:39:21to the judgment

1:39:22prior to to the amendment act five of

1:39:262009

1:39:27which came into force on 31/12/2009.

1:39:31The right of appeal is created in favor

1:39:33of a victim against an order of

1:39:35acquittal under the proviso to section

1:39:36372.

1:39:38In the light of the above-mentioned

1:39:39amendment

1:39:41the scheme of 173C CrPC in our view

1:39:46requires a further examination.

1:39:49We therefore deem it appropriate that

1:39:52this matter be heard

1:39:54by a

1:39:55larger bench.

1:39:58The locus standi of a de facto

1:40:00complainant

1:40:02to seek

1:40:03further investigation

1:40:05is now being reconsidered in view of Act

1:40:095 of 2009

1:40:11amendment by introducing victim is you

1:40:14know the

1:40:16in the criminal procedure code. Now so

1:40:20this is then

1:40:22I have in in this regard I'm tempted to

1:40:25quote a decision though it is totally

1:40:28a digression from the topic.

1:40:31AIR 2019 Supreme Court. This is just

1:40:35a kick off a debate that I'm

1:40:38AIR 2019

1:40:405233.

1:40:42Vinubhai Haribhai Malaviya

1:40:46versus State of Gujarat.

1:40:48Where

1:40:51where

1:40:52the his lordship justice Rohinton

1:40:55Nariman leading the judgement

1:40:57a case where Vinubhai that is the party

1:41:01here is an accused

1:41:03in a land grabbing case.

1:41:05The his lordship justice Nariman

1:41:08discusses further investigation power by

1:41:11magistrate and says that the magistrate

1:41:14can suo motu order further investigation

1:41:17but very carefully uses wonderful words.

1:41:20But in 40 para 40.6

1:41:23he says but it is a procedure of

1:41:25propriety that the police has to seek

1:41:28permission.

1:41:29And again in paragraph 51 his lordship

1:41:32says

1:41:32courts of higher jurisdiction can only

1:41:34order fresh investigation and

1:41:38reinvestigation. I'm only quoting this

1:41:40slightly

1:41:41you know, digressing from the point that

1:41:43locus standi of the de facto

1:41:44complainant. I am on the point subject

1:41:47to correction.

1:41:48I am on the point that in this case

1:41:51I don't find anywhere in the judgement

1:41:54the locus standi of the accused

1:41:58to you know, to agitate the matter for

1:42:00further investigation because he asked

1:42:02for further investigation here.

1:42:04That has been in any way you know,

1:42:05traversed or discussed in this decision.

1:42:09And this is this one landmark ruling so

1:42:11far as further investigation is

1:42:12concerned. Be it a de facto complainant

1:42:14or an accused. That's why I I I had to

1:42:17cite this.

1:42:18Then

1:42:20the other two

1:42:21you know, provisions for the victim's

1:42:24relief is

1:42:262000 that is

1:42:29this is AAR 2019

1:42:32Supreme Court 5233.

1:42:355233. And there is compensation we all

1:42:39know for a victim under 357 CRPC. And

1:42:42there is an amendment to 357A CRPC. I'm

1:42:45only you know, tempted to read one

1:42:47amendment

1:42:48subsection in 357. See voluntary that is

1:42:51this

1:42:52voluntary victim compensation scheme. It

1:42:55says

1:42:56there is there's a scheme that used to

1:42:58be

1:42:59formed for you know, compensation to

1:43:01victims. If 357 is not adequate, 357A

1:43:05can be invoked and compensation can be

1:43:07given.

1:43:14The welfare legislation is to be brought

1:43:16under subsection 4 of 357A capital A.

1:43:20Where the offender is not traced or

1:43:22identified but the victim is identified

1:43:25and where no trial takes place and the

1:43:26offender is really not tried, the victim

1:43:28or his dependents may make an

1:43:30application to state or legal service

1:43:32authority for award of compensation. So,

1:43:36this much I can, you know,

1:43:39um

1:43:41address on the question of victim's

1:43:44participation in criminal justice

1:43:47delivery system, which contains