R. S. NAYAK v. A.R. ANTULAY April 5, 1984 .•

- 412 A • (D.A. DESAI, R.S. PATHAK, 0. °CHINNAPPA REDDY,. A P, SEN AND V. BALAKRISHNA BRAD!, JJ.] . Crlmf ja/ ,Appel/ate -Jurisdi'ctioft-Transfer of a pending criminal trial 1

from the court oi Sessions to the· High Caurt-Proc.edure to be followed iS the same as prescribed in chapte.- XIX !Fof the Code of Criminal Procedure-If the Cognizance of an offence is taken upder section B{J} of the Criminal' Law c {Ame11dment) Aci,- J.952-State need not- appoint Q Public Prosecutor--The. comp}ail.zant's ad-JoCate will the Pu.b(iC Prosecutor.

In comPiianc: with directions given by the_ Constitution Bench of.the Supreme Court, tho Bombay High Court withdrew to itself Special Case No, 24 of 1982 and Special Case No. S/83 pending in the Court of the Special Judge, Greater Bombay and assi8ned the said two c8ses to Mr. D !1Jstice S.N. Khatri a sitting Judge of the said court. When ·the cases· were t~ken up for heariagJ two prelimioarY. contentions were raised ·as to wbeihel'. State should appOint a. PU:blic ProseCutOr to conduct the tdal and· what should be the 'procedure to bo followed and from what stage_ .Of the trial. Hence the twO applications for classification. The court; ·

F 2. If the cognizance of an olfcace is taken under section s(;) of tlie criminal law (Amendment) Act, 1952, and the trial has t.o be held acdording to: the procOdure prescribed 'thereicl, under sec~iOn 8(3), the learned advocate engaged by the complainant to coaduct the prosecution will be Cteem~d tO be a Public ·prosecutoc, Io such a situation, there is DO questiOn. of the State appointed Public Prosecutor to conduct~' the prosecution. It is for ~the complaiila1lt io decide who should be his G learned advocate in charge of tho Prosecution. [4 !SB-C] ' \ . . .· CRIMINAL JUR\sDiCT\ON :.Criminal Misc. Petition No. 1740 of· 1984. (For Directions) IN (Crimin'll Appeal No; 356 of 1983)

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it .. s. NA.YA.K v. A.:tt A.NWLA.Y (Desai, J.) 413 And • A (Criminal Misc. Petition No. 22rl7of1984) (For Directions) ,. IN (Criminal Appeal No. 356 of .1983) .B Ram Jethmalani, Ms. 1 Rani Jethmalani, Naresh Jethmalani and J. Wad for the Petitioner.

A. K. Sen, M. N. Shroff and Dalveer Bhandari for the Respondent. C

The Order of the Court wa.s delivered by

DESAI,· J. Consequent upon the order made by a Constitution ' j Bench <!f this Court on February 16, 1984 in the Judgment rendered iu Criminal Appeal No. 356 of 1983 and Transferred D Case No. 347 of.'1983 alongwith Transferred Case No. 348 of 1983, ,Special Case ·No. 24 of 1982 and Special Case No. 3/83 pending in the Court of the Special Judge, Greater Bombay (Shri R.B. Sule) were withdrawn and sto9d transferred to the High Court of Bombay. Jn compliance with the direction. given in the same judgment, the learned Chief Justice of the High Court of E Bombay assigned both the cases to Mr. Justice S.N. F;,hatri, .a sitting Judge of the High Court. The learned Judge called upon the parties to appear before him on March· 12, 1984. When the cases were taken UI> for hearing, ·certain ·preliminary objections ·were raised on behalf of the accused which we were .told have been dealt with by the learned Judge in his order dated March 16, F

1984. In respect of two issues further consideration was postponed. These issues turn upon the q.uestion of procedure to be adopted by the learned Judge in the trial of the two cases and who should . · be .incharge of the prosecution. In our opinion, if the judgment · of this Court was read with care and precision, these two questions would have hardly arisen. However, two misc. petitions were ·o moved in tliis Court for clarification of the judgment so as to .thwart avoidable delay in the trial of cases.

The operative portion of the judgment which has a bearing on the question i:afsed reads as under:

"Therefore, Special Case No. 24 of 1982 .and Special Case No. 3/83 pending in the Court of Special Judge,

. SU.!>REM1! C:OURT Ral>ORTS · [!9S4) 3 S.C.R. ·'A·. Greater Bomb~ Shri R.B. Sule are withdrawn and trans- ferred to t)'te High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting . Judge of the High Court".

In the penultimate paragraph of the jii:dgment while allowing the appeal this-.Court directed as Under : . .

"This appeal accordingly succeeds and i~ ·allowed. The · order and decision of thp learned Special Judge Shi'i R.B~ , , Sule dated July 25, 1983 discharging the a.ccused in Special Case No. 24 of 1982 alid Special ·Case No. 3!83 is hereby c set aside and the trial shall proceed further from the stage , where the accused was discharged."

Reading two dir.e.ctions togethet, it clearly emerges that the learned Judge has to hold trial according to the procedure . prescribed in Chapter XIX' B i.e. the procedure prescribed in . Secs .. 24.4 to 247 of the Code of Crimina.l Procedure, 1973. .T-0 · be precise;· the learned Judge has to try the case according to the procedure prescribed for cas~s mstituted. otherwise·. than. on'poli~ report by Magistrate. This position 'is clear. and. unambiguous in view of the fact that this .Co1m while allowing the appeal was hearing amongst others Transferr.ed Case .No. 347 of 1983 being the Criminal Revision ~pplicatfon No ..354 of 1983 on the fil.e of the Hig]j Court of the Judicature at' Boin bay against the 'or'der'of. the learned Special Judge Shri RB. Sule disc)larging . ". the accus.ed. 1f the ·criminal revision application was not with- drawn ·to ti;lis Court, . the lligh' Court· while hearing criminal . . revision application could have under Sec. 407 Code of Crim.inal f Procedure, 1973 transferred the Special case from which criminal revision application arose to itself for trial and irr such a situation the High Court under Sec. 407 (8), Code of Criminal Procedure, •. !973 would have to follow the same procedure which the Court. of Spe~ai Judge would have followed it the case would .not have been so transferred. His 11ot in dispute that th() learn~d Special Judge while holding the trial was required to follow the pro,cedure prescribsd by tlie Code of Criminal Procedure, 1973 for trial of .·warrant cases by Magistrates and in the facts of this case the :procedure would !J,tl· in respect of cases instituted. oth.erwise than on police report. "(he trial was to proceed further from the. stage when. the accused was discharged. This in our ,opinion is obvious !ff and needs no furbher clarification. Sec. S(I) o[Jhe Criminal.Law (AmeD;dmeilt) Act, 1952 as interprete~ by this Court in Criminal

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R. s. NAYAK v. A. R. ANTULAY (Desai, J.) 415

• Appeal No. 247 of 1983 decided on February 16, 1984 makes A this position unambiguous and.abundantly clear.

The clarification in re,pect of the first point read with the' judgment rendered in Criminal Appeal No. 247 of 1983 in which Sec. 8 (3) of the 'Criminal Law (Amendm~nt) Act, 1952 had come in 'for interpretation, it follows as a corollary that iflhe cogni- B zance of an bffence is taken under Sec. 8(1) of the Criminal Law (Amendment) ·Act, 1952 and the trial has to be held according to • the procedure prescribed therein, under Sec.. 8 (3) · the learned ' advocate engaged by the complainant to conduct the1Jrosecution will be deemed to be a public prosecutor. In such a 'situation, ·there is no question of.the State appointed public prosecutor c to ~onduct the prosecution. It is, th~refore, clarified which· to · some extent may appear tautologus in view of the af0<ementioned

. judgment, that it would be for th~ complainant to .decide who would be the learned advocate iucharge of the prosecution and ' .the advocate so appointed would be deemed to be a public prosecutor. '

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Dr. Singhvi who appeared for the respondent-accused sub- '·mitted that in the ·guise of a petition for clarification, it is a covert attempt to forestall or foreclose the deCision on the afore- mentioned two points .which. are ·pending before the learned Judge E before whom both the cases are pending. There was no.question of peciding the aforementioned two. poi.nts afresh because the answers to them are implicit in ·the judgments referred to aBove. Dr,' Sing'hvi had nothing to say when invited by the Court about the clarification which the Court my offer in respect of the afore- • · ·mentionecftwo questions. He left us in no doubt that he does · .. F to not wish make any submission on the ,question of clarification in respect of the aforementioned two questions.

We note that the Government of Maharashtra has entered appearance before us through Shri A.K Sen and 'shri M.N. Shroff but no submission were made by them. · G Mr. Jethmalani, learned counsel for the complainant wanted this Court to consider. prayers· Nos. (c) and (d) in the ,misc. petition which we consider for the· disposal of the misc. petitions as irrelevant and we do not propose to deal with the same in these petitions. H • Tn sum the clarification is that the learned Judge in the tril\\

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4i6 .' SUPRJ!Mll COURT REPORTS (1984) 3 S.C.R.

A of the two.cases pending before.him has to follow the procedure prescribed in Secs. 244 to 247 (both-inclusive} included in Chapter XIX-B of the Code of Criminal Procedure, 1973. It is for the complainant to decide who shonld·be his learned advocate focharge "or tjle prosecution and there is no question 'of entrusting the trial of the two cases to a State appointed public prosecutor. B

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