Special Judge Human Rights New Delhi 04.03.2024 M 54 With Annxs

M-54/2021
Sarvadaman Singh Oberoi v. UOI & Ors.
04.03.2024
Present: Petitioner in person.
Victim report of facts by next friend under Sections 30 &

31 of the protection of Human Rights Act, 1993 read with Articles 2.3,
5.2, 9, 10, 11, 14, 16 & 26 of International Covenant on Civil and
Political Rights, 1966 for appointment of independent prosecutor to
prepare and present case before special judge human rights for
prosecution of unknown persons in accordance with international law-
Jus Cogens along with copy of order of Hon’ble High Court of Delhi
dated 27.01.2022 in CWP 1851 of 2021 in case ‘Sarvadaman Singh
Oberoi Vs. Govt. of NCT of Delhi and Ors’, copy of order dated
16.02.2023 in CWP 1851 of 2021 in case ‘Sarvadaman Singh Oberoi
Vs. Govt. of NCT of Delhi and Ors’ and certain other judgments filed
by the petitioner.
Part argument heard.
At request, list for further arguments on 04.05.2024.
(Dr. Hardeep Kaur)

ASJ-02, NDD/PHC/New Delhi
04.03.2024
1
IN THE COURT OF LO. ADDITIONAL DISTRICT & SESSIONS

.flJDGE-CUM- SPECIAL JUDGE HUMAN RIGHTS, NEW DELID
M. NO. OF 2024 IN M. NO. 54 OF 2021
(FOR APPOINTMENT OF INDEPENDENT PROSECUTOR TO

PREPARE AND PRESENT CASE BEFORE SPECIAL JUDGE HUMAN
RIGHTS FOR PROSECUTION OF UNKNOWN PERSONS IN
ACCORDANCE WITH INTERNATIONAL LAW - JUS COGENS)
IN THE MATTER OF:

Sarvadaman Singh Oberoi, (Next Friend), aged 75 years s/o late Capt.
H.S. Oberoi, r/o 1102, Tower-I, Uniworld Garden I, Sector-47, Gurugram
122018, Mob: 9818768349 Email: manioberoi@gmail.com
...... Reporter/Next Friend of Victim
Versus
1. The Union of India through The Secretary, Ministry of Home Affairs,

Government of India, North Block, Central Secretariat, New Delhi 110001.
&
9. The Secretary, Ministry of Law & Justice, Government of India, 4th

Floor, A-Wing, Shastri Bhawan, New Delhi 110001.
[2 to 8 & 10 being Proforma Respondents, excluded at this stage.]
.......... Defendants 1 & 9/ Proforma Respondents 2 to 8 & 10
VICTIM REPORT OF FACTS BY NEXT FRIEND UNDER

SECTIONS 30 & 31 OF THE PROTECTION OF HUMAN RIGHTS
ACT, 1993 READ WITH ARTICLES 2.3, 5.2, 9, 10, 11, 14, 16 & 26
OF INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS, 1966 FOR APPOINTMENT OF INDEPENDENT
PROSECUTOR TO PREPARE AND PRESENT CASE BEFORE
SPECIAL JUDGE HUMAN RIGHTS FOR PROSECUTION OF
UNKNOWN PERSONS IN ACCORDANCE WITH
INTERNATIONAL LAW - JUS COGENS
2
Respectfully submitted,
1. That Next Friend herein is resident of Gurugram, and has brought to
attention of this Learned Court. (on 30.01.2018 a matter ofcontinuing non-
registration of FIR from 01.12.14 till date) victim report of facts under
Sections 30 & 31 of the Protection of Human Rights Act, 1993 read with
Articles 2.3, 5.2, 9, 10, 11, 14, 16 & 26 of International Covenant on Civil
and Political Rights, 1966 for appointment of independent prosecutor to
prepare and present case before Special Judge Human Rights, New Delhi
for prosecution of unknown persons in accordance with international law -
jus cogens, [& Mukul Dalal v. Union of India, 1988 (90) BomLR 208
(SC), at BomLR p.211 lines 3 to 14] in the custodial death of Sh. Brijgopal
Harkishan Loya, Additional Sessions Judge, Mumbai while On Duty at
Nagpur as recorded in P.S. Sitabuldi Daily Diary No. 6901 dt 01.12.2014,
in which continuing failure to register the mandatory FIR till last 9 years
has now become a festering sore in the brilliant human rights record of
India.
2. Thatthe Hon'ble High Court ofDelhi in Judgement & Order dt. 27.01.22
in CWP 1851 of 2021, Sarvadaman Singh Oberoi v. Govt ofNCT of Delhi
and Ors, (Review Order) has, significantly recorded the fact at paras 2 &
4 that
"2 ... ... Petitioner submits that since the complaint before the Human
Rights Court is with regard to an action of the Government,
Government should not be empowered to appoint a public
prosecutor before the Human Rights Court ... ..... .
[K.C. Sud v. S.C. Gudimani, 1981 ILR (1) Delhi 680 at ILR p. 700 para
16 which was upheld in Mukul Dalal v. Union of India, 1988 (90)
BomLR 208 (SC),]
·4.. This Court in its order dated 18.07.2023, has merely noticed the
provisions of Section 31 of the Act which mandate that the State
3
Government by notification shall specify the Public Prosecutor or

appoint an advocate who has been in practice as an advocate for not
less seven years as a Special Public Prosecutor for the purpose of
conducting cases in that Court. This Court in the said order has not
directed appointment of Public Prosecutor but has merely noticed
the provisions of the Act. Accordingly, there is no ground made out
to review to the said order. "
3. Articles 2.3, 5.2, 9, 10, 11, 14, 16 & 26 of International Covenant on
Civil and Political Rights, 1966, state, inter alia:
ICCPR 2.3 Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official
capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies
when granted.
ICCPR 5.2 There shall be no restriction upon or derogation from any of
the fundamental human rights recognized or existing in any State Party to
the present Covenant pursuant to law, conventions, regulations or custom
on the pretext that the present Covenant does not recognize such rights or
that it recognizes them to a lesser extent.
ICCPR 9.1 Everyone has the right to liberty and security of person. No
one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law.
4
ICCPR 9.2 Anyone who is arrested shall be informed, at the time of arrest,
of the reasons for his arrest and shall be promptly informed of any charges
against him.
ICCPR 9.3 Anyone arrested or detained on a criminal charge shall be
brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a reasonable
time or to release. It shall not be the general rule that persons awaiting trial
shall be detained in custody, but release may be subject to guarantees to
appear for trial, at any other stage of the judicial proceedings, and, should
occasion arise, for execution of the judgement.
ICCPR 9.4 Anyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a court, in order that that court
may decide without delay on the lawfulness of his detention and order his
release if the detention is not lawful.
ICCPR 9.5 Anyone who has been the victim of unlawful arrest or
detention shall have an enforceable right to compensation.
ICCPR 10.1 All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person.
ICCPR 10.2 (a) Accused persons shall, save in exceptional circumstances,
be segregated from convicted persons and shall be subject to separate
treatment appropriate to their status as unconvicted persons;
ICCPR 10.2 (b) Accusedjuvenile persons shall be separated from adults
and brought as speedily as possible for adjudication.
I CCPR 10.3 The penitentiary system shall comprise treatment of
prisoners the essential aim of which shall be their reformation and social
rehabilitation. Juvenile offenders shall be segregated from adults and be
accorded treatment appropriate to their age and legal status.
ICCPR 11 No one shall be imprisoned merely on the ground of inability
to fulfil a contractual obligation.
5
ICCPR 14.1 All persons shall be equal before the courts and
tribunals. In the determination of any criminal charge against him, or of his
rights and obligations in a suit at law, everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal
established by law. The press and the public may be excluded from all or
part of a trial for reasons of morals, public order (ordre public) or national
security in a democratic society, or when the interest of the private lives of
the parties so requires, or to the extent strictly necessary in the opinion of
the court in special circumstances where publicity would prejudice the
interests of justice; but any judgement rendered in a criminal case or in a
suit at law shall be made public except where the interest of juvenile
persons otherwise requires or the proceedings concern matrimonial
disputes or the guardianship of children.
ICCPR 14.2 Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according to law.
ICCPR 14.3 In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees, in full
equality:
ICCPR 14.3 (a) To be informed promptly and in detail in a language
which he understands of the nature and cause of the charge against him;
ICCPR 14.3 (b) To have adequate time and facilities for the preparation
of his defence and to communicate with counsel of his own choosing;
ICCPR 14.3 (c) To be tried without undue delay;
!CCPR 14.3 (d) To be tried in his presence, and to defend himself in
person or through legal assistance of his own choosing; to be informed, if
he does not have legal assistance, of this right; and to have legal assistance
assigned to him, in any case where the interests of justice so require, and
without payment by him in any such case if he does not have sufficient
means to pay for it;
6
ICCPR 14.3 (e) To examine, or have examined, the witnesses against

him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him;
ICCPR 14.3 (t) To have the free assistance of an interpreter ifhe cannot
understand or speak the language used in court;
ICCPR 14.3 (g) Not to be compelled to testify against himself or to
confess guilt.
ICCPR 14.4. In the case ofjuvenile persons, the procedure shall be such
as will take account of their age and the desirability of promoting their
rehabilitation.
ICCPR 14.5 Everyone convicted of a crime shall have the right to his
conviction and sentence being reviewed by a higher tribunal according to
law.
I CCPR 14.6 When a person has by a final decision been convicted
of a criminal offence and when subsequently his conviction has been
reversed or he has been pardoned on the ground that a new or newly
discovered fact shows conclusively that there has been a miscarriage of
justice, the person who has suffered punishment as a result of such
conviction shall be compensated according to law, unless it is proved that
the non-disclosure of the unknown fact in time is wholly or partly
attributable to him.
ICCPR 14.7 No one shall be liable to be tried or punished again for
an offence for which he has already been finally convicted or acquitted in
accordance with the law and penal procedure of each country.
ICCPR 16 Everyone shall have the right to recognition everywhere as a
person before the law.
ICCPR 26 All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this respect, the
law shall prohibit any discrimination and guarantee to all persons equal and
7
effective protection against discrimination on any ground such as race,

colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.
4. The inaction on all sides in Justice Delivery is also to be construed as
Collusive Jus Cogens Crime vide Law of Nations/ Constituent Assembly
Clauses (7) & (8) of Objectives Resolution 22.01.1947 [(1973) 4 sec 225
(13 JUDGES)] by the Judiciary. The following list, demonstrates that this
is the rarest of the rare cases, and the documents listed are referred to from
the List of Documents submitted on 27.02.21122.03.21 and/ or enclosed
(at pp.9-70) for the assistance of the independent prosecutor which needs
must be appointed by this Learned Court in accordance with international
law -jus cogens, Articles 2.3, 5.2, 9, 10, 11, 14, 16 & 26 of International
Covenant on Civil and Political Rights, 1966, so as to enable preparation
of a case for trial, which is so far inchoate, in absence of filing of FIR since
01.12.14.[ Shailesb Kumar v. State ofU.P., 2024 SCC OnLine SC 203]
Ser Particulars Date Pages
I Volume I to XVII (pp.1-4513) in one 26.01.21 Only on
PDF-provided on CD in the Court ofLd CD
ASJ-02 & H.R.C., NDD/PHC on
27.02.21122.03.21
2. Judgement & Order dt. 27.01.22 in C\VP 27.01.22 9
1851 of 2021, Sarvadaman Singh Oberoi
v. Govt ofNCT of Delhi and Ors
3. Judgement & Order dt. 16.02.23 in CWP 16.02.23 10-13
v. Govt of NCT of Delhi and Ors
(Review)
4. Judgement & Order dt. 18.07.23 in CWP 18.07.23 14-18
v. Govt ofNCT of Delhi and Ors
5. Mukul Dalal v. Union of India, 1988 04.05.88 19-24
(90) BomLR 208 (SC), at Born.LR p.211
lines 3 to 14
8
6. K.C. Sud v. S.C. Gudimani, 1981 ILR 21.02.80 25-45

(1) Delhi 680 at ILR p. 700 para 16
7. Shailesh Kumar v. State of U.P., 2024 26.02.2024 46-70

sec OnLine sc 203
PRAYER
That it is therefore humbly prayed that Learned Human Rights Court
may kindly set the international human rights law in motion under Law of
Nations, Jus Cogens Mandatory Norn1s vide Articles 2.3, 5.2, 9, 10, 11, 14,
16, & 26 of International Covenant on Civil and Political Rights, 1966 read
harmoniously with Sections 30 & 31 of the Protection of Human Rights
Act, 1993 and Article 38 of the Statute of the International Court of Justice,
which is, inter alia, "38 (].) (a.) The Court, whose function is to decide in
accordance with international law such disputes as are submitted to it,
shall apply: (b.) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states; (c.)
international custom, as evidence of a general practice accepted as law;
(d.) the general principles of law recognized by civilized nations; (e.)
subject to the provisions ofArticle 59, judicial decisions and the teachings
ofthe most highly qualified publicists ofthe various nations, as subsidiary
means for the determination of rules of law. (2.) This provision shall not
prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto. "
Place: New Delhi
Date: 04.03.2024 s;;::j~
Sarvadaman Singh Oberoi
Next Friend
1102, Tower-I, Uniworld Garden I, Sector-47,
Gurugram 122018,
Mob: 9818768349 Email: manioberoi@gmail.com
9
$~A-20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1851/2021 & CM APPLs.5422-5433/2021
SARVADAMAN SINGH OBEROI ..... Petitioner
Through: Petitioner in-person.
versus
GOVT OF NCT OF DELHI and ORS ..... Respondents

Through: Mr.Arun Panwar, Advocate for
Mr.Santosh Kumar Tripathi,
Advocate for GNCTD.
Mr.Anil Soni, Advocate with
Mr.Devesh Dubey, Advocate for
UOI.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 27.01.2022
The petition has been heard by way of video conferencing.
GNCTD and Union of India are directed to file their comprehensive
counter affidavits within four weeks. Rejoinder affidavits, if any, be filed
before the next date of hearing.
List on 7th July, 2022.
MANMOHAN, J
NAVIN CHAWLA, J
JANUARY 27, 2022/TS
10
$~2 (Special Bench)

+ W.P.(C) 1851/2021
Through: In person (through VC)
versus
GOVT OF NCT OF DELHI AND ORS. ..... Respondents

Through: Mr. Anil Soni, CGSC with Mr.
Devvrat Yadav, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 16.02.2024
REVIEW PET. 228/2023 & CM APPL. 44062/2023
1. Petitioner seeks review of Judgment dated 18.07.2023, whereby the

petition filed by the petitioner was disposed of noticing that petitioner had
sought the relief for establishment of Human Right Courts and the role of
Special Public Prosecutors under Section 30 and 31 of the Protection of the
Humans Right Act, 1993 (hereinafter referred to as the Act).
2. Petitioner in person submits that subject review petition has been filed
on the ground that this Court has noticed the provisions of Section 31 which
provide for the State Government to appoint Special Public Prosecutor of no
less than seven years of practice for conducting cases before every Human
Rights Court. Petitioner submits that since the complaint before the Human
Rights Court is with regard to an action of the Government, Government
should not be empowered to appoint a public prosecutor before the Human
Rights Court.
W.P.(C) 1851/2021 1
11
3. Section 31 of the Act reads as under:

“31. Special Public Prosecutor.
For every Human Rights Court, the State Government shall, by
notification, specify a Public Prosecutor or appoint an advocate who
has been in practice as an advocate for not less than seven years, as a
Special Public Prosecutor for the purpose of conducting cases in that
Court.”
4. This Court in its order dated 18.07.2023, has merely noticed the
provisions of Section 31 of the Act which mandate that the State
Government by notification shall specify the Public Prosecutor or appoint an
advocate who has been in practice as an advocate for not less seven years as
a Special Public Prosecutor for the purpose of conducting cases in that
Court. This Court in the said order has not directed appointment of Public
Prosecutor but has merely noticed the provisions of the Act. Accordingly,
there is no ground made out to review to the said order.
5. The review petition is consequently, dismissed.
CM APPL. 44063/2023
6. This is an application on behalf of the petitioner seeking a certificate
under Article 134 A read with under Article 132(1) of the Constitution of
India to appeal to the Supreme Court against the order dated 18.07.2023.
7. Article 134 A reads as under:
“134A. Certificate for appeal to the Supreme Court

Every High Court, passing or making a judgment, decree, final order, or sentence,
referred to in clause (1) of article 132 or clause (1) of article 133, or clause (1) of
article 134
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of the party
aggrieved, immediately after the passing or making of such judgment,
decree, final order or sentence, determine, as soon as may be after such
passing or making, the question whether a certificate of the nature referred
to in clause (1) of article 132, or clause (1) of article 133 or, as the case
W.P.(C) 1851/2021 2
12
may be, sub-clause (c) of clause (1) of article 134, may be given in respect
of that case”
8. Article 134 A of the Constitution provides that a High Court passing

or making a judgment, decree, final order and sentence referred to inter alia
in clause 1 of Article 132, make on its own motion, if it deems fit, or on a
oral application made by or on behalf of the party aggrieved, immediately
after the passing or making such order determine as soon as after such
passing or making the question whether a certificate of the nature referred to
inter alia Article 132(1) may be given in that respect.
9. It is noticed that the impugned order, qua which a certificate is sought,
was passed on 18.07.2023 and the subject application had been filed on
16.08.2023, it does not satisfy the requirement of Article 134 A of a prayer
being made immediately after the passing or making of such order.
10. Further reference may be had to article 132 which reads as under:
“132. Appellate jurisdiction of Supreme Court in appeals from High Courts

in certain cases
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final
order of a High Court in the territory of India, whether in a civil, criminal or other
proceeding, if the High Court certifies under article 134A that the case involves a
substantial question of law as to the interpretation of this Constitution.
XXX XXX XXX”
11. Article 132 (1) stipulates that an appeal shall lie to the Supreme Court
inter alia from the order, if the High Court certifies under Article 134A that
the case involves substantial question of Law as to interpretation of this
Constitution.
12. In the instant case, the grievance of the petitioner is with regard to
appointment of the Special Public Prosecutors by the State Government for
W.P.(C) 1851/2021 3
13
the Human Rights Court under the Protection of Human Rights Act, 1993.
As noticed hereinabove, this Court by Order dated 18.07.2023, had merely
referred to the provisions of Section 31 of the Act and there is no
pronouncement on a question of Law by the order dated 18.07.2023.
13. Consequently, the application is rejected on the ground that no
substantial question of law arises pertaining to interpretation of the
Constitution of India.
SANJEEV SACHDEVA, J
SUBRAMONIUM PRASAD, J
FEBRUARY 16, 2024/ns
W.P.(C) 1851/2021 4
14
Neutral Citation Number: 2023:DHC:4946-DB

Judgment reserved on: 26.05.2023
% Judgment delivered on: 18.07.2023
+ W.P.(C) 1851/2021 and C.M. Nos. 5422/2021, 37296/2022,

37297/2022, 37298/2022, 4479/2023, 28090/2023, 28092/2023

Through: petitioner in person.
versus
GOVT OF NCT OF DELHI AND ORS ..... Respondent

Through: Mr. Santosh Kr. Tripathi, SC with
Mr. Arun Panwar, Ms. Mahak
Rankawat, Mr. Utkarsh Singh and
Mr. Pradyumn Rao, Advocates for
Respondent No. 1.
Mr. Anil Soni, CGSC for
Respondent/UOI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
SATISH CHANDRA SHARMA, C.J.
W.P.(C.) No.1851/2021 Page 1 of 5

15

1. The instant Writ Petition was filed and argued by the Petitioner in
person, seeking the following reliefs
I. Issue a writ/order/direction in the nature of quo warranto,

mandamus or any other appropriate writ / order quashing
Delhi Gazette. Pt. IV No. 259 dt. 24.11.2020, Govt. of the NCT
of Delhi, N.C.T.D. No. 209 (SG-DL-E-25112020- 223298)
and/or;
II. Issue a writ/order/direction in the nature of quo warranto,
mandamus or any other appropriate writ / order quashing
Govt. of the NCT of Delhi Notification F.6/13/2011-
Judl./Suptlaw/721-725 dt. 14.06.2011 and/or;
III. Issue a writ/order/direction in the nature of mandamus or
any other appropriate writ / order directing Respondents to
ensure one Human Rights Court under Section 30 of Act 10 of
1994 in each of the eleven district courts of Delhi in accord
with the International Rule of Law which is the mandate of
Articles 51 and 253 of the Constitution of India, 1949 read with
sub-section (d) & (f) of section 2 of Central Act No. 10 of 1994
within a period of 240 days or lesser period, preferably in
seisen of the Learned District & Sessions Judge, as may be in
IV. Issue a writ/order/direction in the nature of mandamus or

any other appropriate writ / order directing Respondents to
ensure one Independent Human Rights Prosecutor under
Section 31 of Act 10 of 1994 exclusively appointed to examine
and process claims of human rights offences for prosecution of
appropriate case before the Human Rights Court in each of the
eleven district courts of Delhi in accord with the International
Rule of Law which is the mandate of Articles 51 and 253 of the
Constitution of India, 1949 read with sub-section (d) & (f) of
section 2 of Central Act No. 10 of 1994 within a period of 240
W.P.(C.) No.1851/2021 Page 2 of 5

16
Court and/or;
V. Pass any other order as this Hon'ble Court may deem fit and
proper in the interest of justice.
2. Vide Order dated 15.02.2021, this Court had issued notice only with
respect to Prayers III & IV and directed the Respondents to file counter-
affidavits only with regards to the same. Further, observing that several
parties had been impleaded as Respondents who were either not necessary
nor proper, this Court deemed it fit to direct deletion of Respondent Nos. 3-
10 from the array of parties and directed the Petitioner to file an amended
memo of parties.
3. The reply filed by the Home Department of Respondent GNCTD,
reveals that the Human Rights Courts have already been established and the
Home Department of GNCTD vide Notification bearing no.
F8/272/2020/HP/I1/617-632 dated 08.03.2021 has specified the Additional
Public Prosecutor of Directorate of Prosecution attached with the concerned
Courts of Additional Sessions Judge in each district of Delhi/Designated
Courts to deal with the cases pending in such Courts under the Protection of
Human Right Act, 1993.
4. Vide Order dated 07.07.2022 too, this Court observed the aforesaid.
Mr. Santosh Kumar Tripathi, Ld. Standing Counsel for the Respondent /
GNCTD had brought to the notice of this Court that vide the aforesaid
notification the Home Department has specified the Additional Public
W.P.(C.) No.1851/2021 Page 3 of 5

17

Prosecutor of Directorate of Prosecution attached with the concerned Courts
of Additional Sessions Judge in each district of Delhi/Designated Courts to
deal with the cases pending in such Courts under the Protection of Human
Right Act, 1993.
5. From a perusal of the prayers, it is evident that the Petitioner sought
relief inasmuch as the establishment of Human Rights Courts and the role of
Special Public Prosecutor existed under Section 30 & 31 of the Protection of
Human Rights Act, 1993 respectively.
6. Section 30 of the Protection of Human Right Act, 1993 provides for
designation of a Court of Session in each district to be a human rights court,
in order to provide for speedy trial to offences emanating out of violation of
human rights. The proviso to the said section thereafter reads that the section
shall not be applicable in case a Court of Session is already specified as a
special court or a special court is already constituted.
7. Section 31 thereafter reads that the State Government is to appoint a
Special Public Prosecutor with no less than seven years of practice for the
purpose of conducting cases, for every Human Rights Court. By virtue of
the aforementioned Notification dated 08.03.2021 Special Public Prosecutor
is also available for the Human Right Courts.
8. In light of the aforesaid, nothing survives in this instant Writ Petition
for adjudication and this Court does not find any reason to proceed further
with the instant proceedings.
9. The instant Writ Petition is disposed of, along with pending
application(s), if any.
W.P.(C.) No.1851/2021 Page 4 of 5

18
(SATISH CHANDRA SHARMA)

CHIEF JUSTICE
(SUBRAMONIUM PRASAD)
JUDGE
JULY 18, 2023
W.P.(C.) No.1851/2021 Page 5 of 5

19
208 THB BOMBAY LAW RBPORTEa [ VOL. XC
SUPREME COURT
Presenl : - The Ilon•bte Mr. R. S . Pathak, Chief Justice and Mr. JuJtice Ra11guna1h Misra
MUK.UL DALAL v. UNION OF INDJA*
( riminal Procedure Code, . 1973 (Act II of 1974), Secs. 2(u), 24, 15 - Maliarash:ra Rules
for the Concl11ct of the Legal Affairs of rhe Government, 1984, r, 22 - Rule wlte:lll:r
contrary to ~-cfrnme of Criminal Procedure. Code and bad in Jaw - Making sen.-ices
of Special Public Prvsecutors available to private complainant without scree11i11g and
without basis of prescribed guidt:lines-Con.stitut{o·n of fodia, Art. 14.
From the spirit contained in the scheme of the Criminal Procedure Code, 1973
it is clear that it is the duty of the Public Proseculor to ~upport prosecutions ini-
tiated by the State. Cases in$tltuted on a police rq,ort are intended to be handled
by a Public Prosecutor. Cases instituted on a complaint, however, stand on a diffe-
rent footing and the complainant has choice of his own counsel. The otnce of lb~
Public Prosecutor is a pubhc one.
K. C. Sood v. S. C. Gudimam, aJ)J)roved.
In most of the States, the Remembrancer of J_egal Affairs looks after the St.ate
litigations. He is a rcsponsibli;, officer alld normally with judicial experience. W\1e11
an application for the services of a Spc:cial Public Pnisecutor or 3Jl Assistant Pub·
lie Prosecutor is made in a given case the power would be: vested in him to examine
the facts and take <le.cision as to whether the <:ase merits the appointment of a Spe-
cial Public Prosecutor or an Assistant Public Prosecutor. 1t would not be appro-
priate to accept the position that whCDever an application is made it should be
allowed and a Specia1 Public Prosecutor should be appointed; that would be contrary
to the spirit of the scheme of the Criminal Procedure Code. Without screening on
the basis of guideJines prescribed or to be pTescribed, the services of a SpecfaI
Public Prosecutor should not be made available to a private oomplajnant. The pri-
macy given to the Public Prosecutor under tho scheme of the Criminal Procedure
Code has a socia1 purpose and the same would be lost if the procedure adopted by
T. 22 of Maharashtra Rules for the Conduct of the Legal Affairs of the Govern-
ment. 1984 is accepJed. Rule 22. therefore, is bad.
The rcque3t for appointment of a SJ,«ial Public rroKCUtor 11hould be properly
~amincd by the Rcmcmbraoccr of Legal Affairs and only when be i!'I f!,atiisficd that
the ca.sc, deserves the supJ,>Ort of a Public Prosecutor or a Special Public Prosecutor
that such a ~oo should be 11ppointeu to be inchargt: of the 1:ase. The rate uf foes
should be pr~ribeu and lbe private cvmplaiua.nt shuul(1 be called upon to dept-islt
the fees eithci- with the: RemembraJJccr of Legal Mairs or a prescribed State aget\cy
from where the fees would be drawn by the Special Public Pr-OSeCUtor. To leave the
private complainant Lo pay to t:he Special Public Prosecutor would mdced not be
appropriate.
P. G. N'1rayankurty v. Smte of Keralfl2, Dilipbhai Chhotalal Dave v. Stale of
G ujarat3 a_ppro\red,
The facts appear in 88 Born. LR. 491.
RANGANATH MISRA, 1. Special Leave granted in each of the throe cases.
A common question arising for consideration in these appeals is as to the
justifiability of the uppointment by the Stat~ of Special Public Prosecutors and
• J>ecided, May 4. 1988. Criminal Appeal July 2, 1986 [reported in (1986) 88 Bom.
Nae;, 305. 306 and 307 of 1988 arising LR. 491.].
out of S.L.P. (Crl.) Noo. 3048 and 3W.7 l (1981) Il Cri. LJ. 1779 (D1.1.
()f 1986 and 703 of 1987 from the dcci• 2 (1982) 88 Cri. LJ. 208S (Kerala).
si-on of the Bombay High Court dated 3 (1971) 12 Ouj. LR. 999.
20
19881 MUKUL V. UNION (S.C.)- R . .\1.i!)7Q, J. 209
Assistant Fublic Prosecutors under ss. 24 and 25 respectively of the Code of

Criminal Procedure. 1973 at the cost of the private complainants.
In Criminal Ap~I arising out of S.L.P. (CrJ.) No. 3027 of 1986) the appel-
lants are facing prosecution for charges of forgery and cheating before the Addi-
tional Chief Metropolitan Magistrate, 37th Court. Esplanade, Bombay. On 4th
of December, 1979 the Government of Maharashtra appointed an Assistant Public
Prosecutor for conducting the said case for the prosecution in exercise ot powers
under s. 25{1) of the Code of Criminal Procedure. ln the connected Criminal
Appeal arising out of S.L.P. (Crl.) No. 30'48 of 1986) the appellant is accused
of an offence punishable under s. 409 read with ss. 120-B and 34- of the Indian
Penal Code and is facing his trial in the court of the same Metropolitan
Magistrate. On 3rd of August, 1983, the State of Maharashtr.a in exer-cise
·of powers under s. 24(8) of the Code of Criminal Procedure bas appointed two
advocates as Special Public Prosecutors for conducting th.e prosecution. In the
other connected Criminal Appeal arising out of S.L.P. (Cd.) No. 703 of 1987)
the appellants arc being tried for offences punishable under cc. 506(ii). 337. 354,
504, 498-A. read with ss. 114 and 34 of the Indian Penal Code in the Court
of the Metropolitan Magistrate, 40th Court, Girgaum. Bombay. By notifi~
cations dated December 4, 1979. August 3, 1983 and July 17, 19&5, the Govern-
ment of Maharashtra in exercise of powers under s. 24(8) of the Code appointed
two advocates as Special Public Prosecutors for conducting the prosecution. These
notifications Were assailed in a group of writ petitions before th.e Bombay High
Court and a Division Bench of that Court by a common judgment dated July
2. 1986. rejected the writ petitions and upheld the appointments. That common
.judgment of the High Court is assailed in this batch of appeals. Since com-
mon questions have been raised and argued at a time, this judgment shall dis-
pose of an the three appeals.
The impugned appointments have been made either in exercise of powers
under s. 24 or s. 25 of the Code of Criminal Procedure of 1973. Section 24
deals with Public Prosecutors while s. 25 makes provisfons for Assistant Public
Prosecutors. While sub-section (1) of s. 24 enables the Central Government or
the State Government to appoint a Public Prosecutor or an .Additional Public
Prosecutor for the purposes of High Courts, sub-s. (2) makes provision for
appointment of one or more Public Prosecutors for the purposes of conducting
of cases in any district or local area and sub-ss. 4, 5. 6 and 7 deal with the
modality of such appointments, sub-s. (8) provides : --
'The ~ntral Government or the Stale Government may appoint, for the purposes of
any case or class of cases, a person who hes been in practice ~s an advocate for not less
than ten years as a Special Public Prosecutor."
Section 25 deals with the appointment of Assistant Public Prosecutors, Sub-sec-
tion (1) provides : -
"The State Government s,hall appoint in every district one or more Assist.mt Public
Prosecutors ~or conducting prosecutions in the courts of magistrates."
The provisions contained in these two sections in the Code uf 1973 correspond
to s. 492 of the -Old Code which dealt with the appointment of Public Prose-
cutors.
Challenge by the appellants to the notifications in question is on the ground
that the Code confers a special status on the Public Prosecutor; ,-.·hcrever it has
been considered necessary. law has prescribed the interest to be represented ey
the Public Prosecutor and it would not be in proper exercise of power by thu
State Government to make appointment of a Special Public .Prosecutor to support
a private transaction and provide for his remuneration from private source. The
High Court referred to some decisions of the different C.Ourts supporting and
opposing the view canvassed before it and came to hold [at p. 500 of 88 Bom.
L.R. 491] :-
"According to us, the ~onduct of prosecution by a lawyer appointed and paid by the
-4-
21
210 THll BOMBAY LAW REPOUER [ VOL. XC
private party does not affect his capacity aod ability to perform his role as a Public
Prosecutor. To accept such a propo!>ition is to invalidate all private prosecutions."
Nt gativating the plea advanced by the appellants, the High Court has further
held [at pp. 500, 501 of 88 Bom. L.R. 491] : -
" For the reasons give abov~, ,1,1ith respect, it i?; not possible for us to asree th::tl (1
pleader evgaged by a private person is a. de facto complafoant and c~nnt>t be expected
to be ~ impartial as pleoadc-r appointed by the State to conduct public prosecution. On
the other hand. we ar~ of the view that as stated earlier, perw.iss.i(111 to engage an ad-
vocate should be given freely to the complain~t. The compla.iniint has as much a right
as me accused to .repres<:ul his case effectively befoi:e the coun."
The High Court also negatived the challenge against the appointment of llic
Assistant Public Prosecutors under s. 2.5 by holding [at p. S0l of 88 Born. LR.
491] :-
..Hence the absence of a provision such a-~ section 24{8) will oot bar a.ppointment of
:in Assistant Public Prosecutor specially to conduct a case or class of cases."
While dealing with the matter at a different place in the judgment the High
Court observed [at p. 498 of 88 Born. L.R. 491) :-
"Bul apart from this, we ai:e of the: view that guiddint:s m nu gudelines, wht:ocv~1
there is a i:equest made by a private patiy to engagi; an advocate of his i,;hoice to be
paid for by him, tl11; req_uest shvuld be granted as a rule. The complainant in such cases
' is either a victim of the offence or is related lo the: victim or otherwise an aggrieved
person. He has a right to be heard and vindicated. As stated earlier, the right to be
heard implies a rjght to be eff~tivcly reprc.ciented at the hearmg of the case. He has
therefore a right to engage an advocate of his choice. There is there.fore no rea~on why
the State ~houJd refuse him the permission to conduct. the prosecution with the help of
his advocate ... ".
Appellants' counsel have ch,'l.llenged these conclusions of the High Court. Und~r
the Criminal Procedure Code, the Public Prosecutor has a special status. and
his is a statutory appointment. Under some of the provisions made in the
Code, he receives special recognition. Section 2(u) of the Code defines the Publfo
Prosecutor. Sections 199(2), 225, 301(1), 301(2), 302. 306, 321. 377 and 378 ar~
some of the provisions in the Code which confer a special position upon th~
Public Prosecutor. From the spirit contained in the scheme of the Criminai
Procedure Code it is clear that it is the duty of the Pub1ic Prosecutor to sup-
port prosecutions initiated by the State. Trial before a court of session has to
be conducted by the Public Prosecutor as required under s. 225 of the Code.
Cases instituted on a police report arc intended also to be handled by a Public
Prosecutor. Cases instituted on a complaint. however, stand on a different foot•
ing and the complainant has choice of his own counsel. A set of rules known
a~ Maharns.htra Law Officers (Appointment, Conditions of Service and Remune-
ra tion) Rules , 19&4 made in exercise of powers confe:rf('.d by proviso to art. 309
read with art.165 of the Con.:;itit11tion have been placed before us in course: of
the hearing. Chapter III of those ru]es Jays down qualifications of the Gov-
ernment Pkader and Public Prosecutor while O,apter IV prescribes the duties
of the Public Prosecutor. Another set of rules known as The Rules for the
Conduct of the Legal Affairs of the Government, 1984, which appears to be
administrative in character. was also placed before us. Chapter TIT of these
Rules provides for Special Counsel and Special Public Prosecutors and Rule 22
thereof provides : -
..lf io any case, d vil or criminal, a requcsl is made tiy any private parly, interesi:ecl in
tbc case, for the appointment of Jts own advocate as a Spectal CoUDSel or 51,eciat Pub·
lie Prosccmor, as tile case may be, on the condition that the payment of :recs of such
advocale will he:: borne by that p.11Ly, the Remembrancer ot Legal Affairs may, after
considering such case on merits, appoint such advocate for ,that particular case or cases."
Appel1ants' counsel challenged the validitv of r. 22 and contended that suc.:h
a Rule is contrary to the spirit of Code of Criminal Procedure and this Rule
22
1988] MUKUJ, v. UNION (s.c.J - R. Misra, ]. 211
affects the spedal status conferred on the Public Prosecutor and would cause
prejudice to that public office. _
The office of the Public Prosecutor is a public one. A learned smgle Judge
-Of the Delhi High Court in K. C. Sood v. S. C. Gudimani,' rightly held that
the Public Prosecutor, the Additional Public Prosecutor and the Assistant Public
Prosecutor hold an office. The learned Judge said: -
"lt is public office of trust w,d therefore like any oth<?t" public office, is msceptiblc
to misuse, aod corruptioo if not properly insula~ It is an office of t"e$ponsibiHty rnore
.impo111lllt than mi\lly oUicrs bccauso the holder is required to prose<:ute with de,tad1-
meot on tho one hand, and yet with vigour on the other. When advooates are recruited
•o these, office&, they have certain professional and official obligations nnd pdvileges.
Some Seate Oovcmmcuts hctve appropriatcly made it ao exp~ 1enn of thcir ~ppoi.nt
men t tllllt they sball not accept any brief in criminal matters a110 shall oot even in civil
matten appe.ar ·n any case in which e interests of the Stale ap_pear to be involved."
SjmiJar observations were made by another learned single Judge in the case of
P. G. Narayanankutty v. State of Kefala.'A In this case. Bhat J., of the Keraia
High Court pointed out : -
''Special Public PJ'o.,ocutor cnnnot be al)90intod with a view to se,;;ure conviction. at
.all costs. Special Public Prosecutor could bo appointed only woon publio jnterest demands
it and not to vindicate the gricvan.c~ of a privare- person., i.uch as close ~Jation of the
deceased. In orlkr that he d ischarges his duties. properly, he, shoUild look to the State for
remuneration for his services; if he lools to a private party Coe his rcmunc:ration, h~
<:apaclty and ability to perform his role as Public Pr08<\:utor pru~rly will be ~danger~
ed Government cannot appoint Special Public Prosecutor on such term5, abdicating theic
1inancial responsibility or directing him to rcx:civ0 hi9 remuneration Crom any private
individual ...".
Some other High Courts have taken a different view of the matter. A divi -
sion Bench of the Gujarat High Court in Dilipbhai Chhotaltil Dave v. State oj
Gujarats considered a case of this type where the Public Prosecutor and the
Assistant Public Prosecutor were designated as Special Public Prosecutors for
-conducting a particular case. It was found by the Court that remuneration of
the advocates had been left to be fixed by ugreement between them and the
Central Bank: of Jndia for whom they were to appear was to pay them directly.
The High Court held : -
'That though the Public Prosecutor would be i.ncharge of and is required to conduct
the prosecution before: tho court of sessions. the control of proce.edinas before the Court
is ultimately in the hands o{ the presiding Judge. It would not be unreasonable to as-
sume that if there i& unnecessary prolongation of. the trial and C-Onsequential harassment
<'f the accused at the hands of the Public Prosecutor or unfair handling of the prose-
cution case by the prosecutor, the Court would always intefVene and protect the aC('\Jscd
-and ensure a fair tr.i'aJ."
The Court further found that:-
"RuJe 38 of the Gujarat Law Officers (Conditions of Service) Rules. 196, made pro-
vision that it a Special Qiunse:I was appointed, the terms and COD<lidons of his ~mploy-
ment would be such as may be detennined by lho State Government by an. order in vmt·
iug. It was open to the State Government to provide for fees o[ the Special Counsel
appointed t,y it to be paid l:>y virtue of an ap-ecmcnt directly arrived at between the
~iaJ Counsel and the complainant."
Some other cases taking the same view as the Gujarat High f'..ourt were :.:ilso
placed before us in course of the hearing.
The pattern that prevails in most of the States is that there is a Remembrancet
of Legal Affairs who inter alia looks after the cases instituted by the State. At the
-district le vel such interest of the State is looked after by the District Magistrate.
1 (1981) II Cri. LJ. 1779 (Di.). 3 (1971) 12 Ouj. LR. 999.
2 {1982) 88 Cri. L.J. 2085 (KeraJa).
23
212 nm BOMBAY LAW R.l!PORTBR I VOL. XC
There may be instances where a case instituted on a private complaint is really

a public cause. In such a case the prosecution though initiated by a private
fadividual is really one which should be taken over by the State. If the com-
plainant thereof approaches the State for assistance in. a. case of that type by
a.pp::>inting a Special Public Prooecutor or a Assistant Public Prosecutor to -su~-
port the prosecution it would be for the Legal Remembrancer or the District
Magistrnte to favourably consider such a request and it would ordinarily be ex-
pected that Government would appoint a Special Public Prosecutor to take
charge of the prosecution. There may also be cases of private complainants.
where for various reasons it would be appropriate for the State to support the:
prosecution by appointing a Public Prosecutor or a Special Public Prosecutor to
look after the case. Instances of this type would be cases where the victims
are of economically backward c1asses who are not in a position to vindicate their
rights through Court wjthout the assistance of the State. Here again the Public
Prosecutor•s services may be placed at the disposal of the complainant. It is a
well-known position in Criminal Jurisprudence that the State is the prosecutor
and that is why the primary position is assigned to the Public Prosecutor and
where the Public Prosecutor appears. the request of the complainant or the victim
to be represented by any other counsel is suoiect to pennission of the Court.
Two questions have now to be dealt with - whether as a rule whenever there
is a request made by a private complainant for the appointment of a Special
Public Pmsecutm, should the same be accepted and whether such Special Public
Prosecutor should be paid by the private party availing his services. In most
of the State~. <1s we havf': ~lre~y ohserve.d, the Remembrancer of T..egal Affairs-.
looks after the State litigations. He is a responsible officer and normally witb
judicial experience. When an application for the serviees of a Special Public
Prosecutor or an Assistant Public Prosecutor is made in a give.n case the power
would be vested in him to examine the facts and take decision as to whether
the case merits the appointment of a Special Public Prosecutor or an Assistant
Public Prosecutor. It would not be appropriate to accept the positioo that
whenever un application is made it should be allowed and a Special Public ·P ro·
secutor should be appointed would be contrary to the spirit of the scheme of
the Code. There may be cases where a wcrful comQ_lainant may have begun
a proceeding to victimize his opponent. ff in such a ca,e the State concede~
to the request for appointment of a Special Public Prosecutor there will be tra~
vcrsity of justice. Without screening on the basis of guidelines prescribed or
to be prcS<;ribcd. the services of a Special Public Prosecutor should not be made
available to a private complahJaot. The primacy given Lu the! Public :Pwstxulor
under the scheme of llu; Cutle has a social pu1 vo.se ,md the same would be
lost il the procedure adoptt=d by r. 22 of Maharashtra Ruk:. rdern,u to above
is accepted or what the High Court has indicated is adopted . We are inclini::u
co observe that the request for appointm~nt of a Special Pub1ic Prosecutor should
be property examined by the Remembrancer of Legal Affairs and only when
he is satisfied that the case deserves the suppon of a PubJic Prosecutor that
such a person should be appointed to be incharge of the case.
The next question should be whether the Special Public Prosecutor should be
pennitted to be paid by the private complainant. There js considerable force ju-
what has been stated by the Kenda High Court in the case we have referred to
above. There may be certain cases where exception may be made. such ns
where the prosecutor is a public secior undertaking. a bank whether nationilised
or not, an educational institution and the like. The rate of fees should be
presc;ribed and the private complainant should be called upon to deposit the
fees either with the Remembrancer of Legal Aftarrs or a prescribed State agency
from where the fees would be drawn by the Special Public Prosecutor. To leave
the private complainant to ay to the Special Public Prosecutor would indeed
not be approprjate. We would make it clear that we do not support the con-
clusion ot the High Court that as a rule whenever there is request of appoint-
ment of a Special Public Prosecutor or an Assistant Public Prosecutor, the same
24
i988] Mt,;KUL v. UNlON (s.c.)-R. Misra, J. 213
should be accepted. The Remembrancer of Legal Affairs should scrutinise

every request, keeping a prescribed guideline in view and decide in which cases
fiuch request should be accepted, keeping the facts of such case in view
Ordinarily the Special Public Prosecutor should be paid out of the State funds
~ven when he appears in Stupport of a private complainant; but there may be
~ome special case where the Special Public Prosecutor's remuneration may be
coll-ected from the private source. In such case the fees should either be de-
posited in advance or paid to a prescribed State agency from where the Special
Public Prosecutor could collect the same. In, view of these conclusions and our
disagreeing with th.e view of the High Court. the appeals shall stand allowed.
Rule 22 of the Maharashtra Rules. referred to above, in our view is bad and
the State Government should properly modify the same keeping our conc1usions.
.in vjew. The Remembrancer of Legal Affoirs of the Maharashtra Government
will now decide as to whether in the three c.ases refe.rred to here, the services of
a Special Public Prosecutor, a Public Prosecutor or an Assistant Pnblic Prose-
cutor shou]d be provided and in case he comes to the conclusion that such pro-
vision should be made, he should decide as to whether the State administration
5hould pay for :;uch Public Prosecutor or the private comploina.nt should bear
the same. There would be no order a.~ to c~ts.
Appe.als allowed.
Source : Indian Law Reports Delhi
25
~&O
A REVISlONAL CRIMINAL •
LT. COL. K. C. SUD . . .. PETITIONER

Versus
B
S. C. GUDIMANI ..... RESPONDENT
(M. L. JAlN. J.)
Criminal Revis:on 224-1980 Dc'.;idd on i 3-2-1981
C
Indian Penal Code-Complaint wider sections 120B,
420, 421, 422, 425 & 34--Code of Criminal Proce-
dure, Ss. 397, 401 & 403-Revision--no person bas
a right ro be beard in criminal revision unless an
order to the prejudice of the accused is made or the
D court deems fit-whether a Public Pro5ecufor can
:ippear against the State in a rc\'isio?J.
The respondent lodged a complaint before the Metrnpolitan

Magistrate, New Delbi against six persons under sections 120B.
E 420, 421_. 422, 425 and 34 of the lodian Penal Code. The
accused were ri.:pr.:s,;-1\ted in the court of the Magistrntc by the
Public Prosecutor :i'n the High Court for the Delhi Administration
and his junior without a power of attorney. The Metropolitan
Magistrate summoned 4 of the ;iccused including the petitioner
under section 420 read with section 34 of ihe Indian Penal Code:
F and dismi~scd the complaint with regard to the offoncea under
the other s~ctions oi the Indian Penal Cede, and with regard
!o 1hc rcmainiag accused the said Public ?rc~..:C,,lC'r and hi·,
junior filed the present petition in the High Court under sectiori
397 of the Code of Criminal P'rocedore on b~half of the accused.
G The respondents have raised an objection that the Public Prose-
cutor caPnct appear on behalf of an accused and, th::refore, •lhe
reviSi\)n fi!ed by h:n~ was a nullity, Sustaining 11:::- 01::~·c!ion.
HELD:
ff 1. Crime is not hi r. g but an offencc, and on off..:: nee is an acf
or omission which is made punishable by any Jaw for the time
being in force and subject to any specially enacted modification.
:s capable of being investigated, inquired into, tried and other~
wise dealt with according to the provisions of the Code of Cri~
minal Procedure currently prevalent. (Para 4).
2021-06-25 (Page 1 of 21) MANU/DE/0052/1981 SARVADAMAN OBEROI

26
Jlll
y (1981) I Delh·1 LT. COL. K.C. SUD v.S. S.C. GUDIMANI 681
A 2. In all prosecutions the State is the prosecutor and a pro-
ceeding is always treated as a proceeding between the Stale and
the .iccuseu. State alone bas the interest in peace and security
and has the right lo prosecute and the complainant bas no
independent right to have the guilty person punished. (Para 4)
B . 3. According to the Code of Criminal Procedure, l 973,
secfons 90, 2(d) and 2(r), the prosecutions are instituled,---
(a) on complaints by private persons;
(b) by the police, (i) on police report in caSc of cogniz-
C able offences, and non•cognizable offences investi-
gated under section 155, and (ii) on a complaint in
cases, in whlch after i·nvcstigation a non<ognizable
offence is disclosed;
(c) on i.:ouiplaints by :.pccificd public scrvaots or C<Jurts;
D
(cl) or._ othl-r information or •personal krowled~ of the
magistrate. (Para 7)
4. The Code provides -:

E (a) for the High Court, a Public Prosecutor and Addl. Public
Prosecutors appointed by the Central Government or the State
Government for conducting in sucb court, any- prosecution,
appeal, or other proceedings on behalf of the Central er State
Governments, as lhc case may be, after consulration with the
F High Court ;
(b) for the District, (i) one or more Public Prosecutors
appoinled by the Central Government for the purpose of conduct-
ing any case or class of cases; (ii) a Public Prosecu.tor and one
or more Addl. Public Pi-osecutors, if any appointed. by the State
G Go\'t., out of a regular cadre of Prosecuting Officers where such
cadre exists, otherwise out of a panel ·of ad-vacates prepared by
tbe Distt:kt Magistrate in consultation wilh the Sessions Judge;
(c) Special Public Prosecutor appointed by the Central or
State Governments for any case or class of cases; and
H
(d) Asst. Public Prosecutors appointed by the State or the
Central Governments in the c:::iurts of magistrates;· no police
officer c<1n be appointed as an Asstt. Public Prosecutor. \Vb.en no
Asstt. Pnblic Prosecutor is available for a'ny particular case, the
District Magistrate may appoint any person .1s Asstt. Public
2021·06·25 (Page 2 of 21) MANU/DE/0052/1981 SARVADAMAN OBEROI

27
682 1NDIAN LAW REPORTS (DELHJ) ILR (1981) l Delhi
A Prosecutor ip.cluding a police officer if be is not below tbe rank

of an Inspector or if he bas not taken pan in the investigation
into the offence with respect to which the accused is being prose-
cuted. A magistrate may, however, _pernut the prosecution to be
conducted by any person or his pleader but the Advoc1.te-Geoeral,
Govt. Advocate, or a Public Prosecutor or Asstt. Public Prosecu-
B lor will require no permission. (Para 8)
5. The Public Prosecutor holds a public office created by law

right from the court of a magistrate to the Hi&h Courr. It exists
apart from the mcumbent. The pos".tion by itself is of per-ma-
c nency and continuity and even involves exercise of some _RQrtion
of sovereign functions of the State.
The Public Prosecutor though an executive officer is in a

larger sense also an officer of the court. He is bound to assi$t
the court with his fairly considered view aml the coun ls entitled
to have the benefit of the fair exercise of his function . [State of
Bihar v. am Naresh Pandey and another, A.LR. 1957 S.C. 389
and Subhash Chander v. The State (Chandigarh Admn.) and
others, A.LR. 1980 S.C. 423 re1ied on].
E It is a:n offiee of responsibility because the holder is required

to prosecute with detachment on the on,e hand and with vigour
ou the other. When advocates are recruited to these offices they
have certain rofessioaal and officiaJ obligations and rivileges.
Some Stale Governments liavc made it an ex.ores~ term of their
appointment that they shall not accept any bricf in criminal
0
F matters and shaU not even in civil matters appear in ;iny case in
which the interests Qf the Sta ap~ ar to be involved. [Alfred
Crompton Amusement Machines Ltd. v. Commissiooers of
Customs nnd Excise, (1972) 2 All E.R. 353 (376) relied on).
(Paras 9 & 11)
G 6. In the instant case, th~ Standing Cou:nsel (Criminal) and
4 panel lawyers have been appointed as Public Prosecutor and
Additional Public Prosecutors under the Code. The Public Pro-
secutor is responsible for the entire criminal litigation fo the
High Court. The ofli~ of the Public Prosecutor has to be keQ!
H above susgicion and ils i:,urity has to be protected. The office of
the Public Prosecutor includes the t\.dditional Public- Prosecutor
and th~ Assistant Public Prosecutor and they cannot h::: permitted
to appear against the P:rosecution whatever be the mcde of pay-
ment of their services. The same conclusion also afplies to
de rtmental counsel.

28
ILR (1981) I Delhi LT. COL. ~ C. SUD Vs. s. C. GUDBfANl 683
A The Public Prosecutor and the Additional. Public Prosecute[

cannot aPJ>C!r ~ the State in criminal matter<; The same
position will prevail even where the party has cat'efu11y avoided
impleadj_ng_ lbe State ~ a ~ in a _reYJSion or in appellate
other crunmal Qroceedings. This applies to panel lawyers as well
because no panel lawyer can a~ without beiog appuinled ~
an Additional Public Prosecutor.
It is not permissible for the State or the Delhi Adn,ini:slr:1-

\ion to allow the Public Prosecutor or the Additional Prosecutor&
to appear against itself and it must P.:rovi~e so specifically in the
term~ 0f their aJ?:pointment.
The Public Prosecutor cannot appear on beh11f of the

accustd even in case& instituted on; .a complaint by a private
pnrty. (Poros 13, 14, 15 & 16)
D
7. Revisfon petitions occupy a peculiar position in criminal
proc.edure. Ne, party has a right to be beard either hy person or
by pleadu except where an order to the prejudice of the accused
oi any person is made or th~ court thinks it fit to do so. In tbe
E instant case, the Public Prosecutor cannot be beard as of right
and that will be the po_sition even if it were a revision by the
State but the revision filed by him cannot be held to be a
nullity.
p There can be no objection to the appearancr. ,:,f the Public

Prosecutor·s 1unior on behalf of the petitioner on tb,; sote ground
that ·she has been working In the chambers of the Public Prosecu.-
tor. (Para 17)
G For the Petitioner : Shri D. C. Mathur with Miss Naresb K.

Parmar and Shri R. B. Datar, Advocates.
For tbe Respondent : Shri Balraj Trikha, Advx,1te, Shri Sital

A K. Dar, Advocate, Intervener.
JI
CASES REFERRED ~
(1) Bisheshar and others v, Rex (1949) 50 Cri. L. J. 322.

(2) Sardar Surinder Singh v. Comrade Ram Pian M.L.A. and,
another, Criminal Revisions Nos. 1161 and 1162 of 1964,

29
634 lNDIAN LAW REPORTS _(DELHI) I LR ( I98 I) 1 Delhi
A dcddcrl on 20-1-1965 by a Division Bench of !he High Court

of Judicatu·re at Allahabad. (3) Q.Jeen-Emprcss v. Murarji
Gokuhtas, (1'389) ILR 13 B:Jmbay 389. (4) Aini:1.ram Mahadco
_Ghosale and others v. State, AIR 1965 Born. 9. (5) Re. ivlalayil
Kottayi! Kcyassan •Ku tty, (1917) 18 Cri, L. J. 329. (6) Gum
Bhagat v. N.aain Singa, (1924) 25 Cri. L.J.R. 446. (7) Mundrika
B Pras:id Sinha v. State of Blhar, AIR 1979 SC 187 l (pJ ras 4 and
17). (8) Regina v. Puddick, (1865) 4 F. & F. 97. (9) Rex v.
Banks, (1916) 2 K.B. 62 I. (10) State of Bihar v. Ram Naresh
Pandey and another, AIR 1957 S.C. 389. 01) Subh?.sh Chander
v. The S!~,t~ (C'ha,>1digarh Admn.) and oth~ts. Al R I %'.0 SC
c 423. (12) Roop K. Shorey v. The State, 1967 Cri. LJ. 251.
(13) A Mohambaram ·v. M. A Iavavelu and others. A IR 1970
Mad. 63. (14) Smt. Kanta Kathuria v. Manak Cha,d Surana.
A lR I 97G SC 694 (l5) Mahadeo v. Shanti Bai (Criminil1 Appeal
No. 1832/1967 decided on 15-10-1968 by Suprem~ Court of
India. (16) Statesman (P) Ltd. v. M. R. Deb and oth!c'rs:, AIR
D 1968 sc 1495. (17) ureat Western Railway OJ. v. Bater. (L922)
2 Tax Cases 231 (235). (18) Alfred Crompt0n A111asCTTic11l
Machinl!s Ltd. v. Commissioners of Customs and Excise, (l972)
2 All E.R. 353 (376). (19) M. D. Sigamani v. Vidyasaganm.
(.1969) I M. L. J. 99. (20) Ratanshah Kavasji v. Koki Behrarnsba
E and others. (1945) 46 Cri. L. J. 434. (21) State of Puniab v.
Sutjit Singh and another, AIR 1967 SC 1214. (22) S. Naganna
v. Krishna Murthy and another, AIR 1965 AP· 320.
M. L. JAIN, J.-$_ C. Gudimani lodged a complaint against

six persons before the Metropolitan Magistrate. New Delhi,
P on February 21, 1980, under Ss. 120B, 420, 421, 422, 425 and
34 I.P.C. Though there is nothing on record. but it is not
denied that the accusf:d were .represented by Shri Mathur and
Kumari Naresh Parmar, a junior colleague of Shri Dinesh Chand
G Mathur. and they did so without a Vakalatnama. The teamed
Metropolitan Magistrate by his order dated May 15, 1980, sum-
mon.eel onlv four of the accused including Lt. Col. K. C. Sud.
undn S. 420 read with S. 34 J.P.C. and dism;ssed the complaint
with regard to offences under s~. 120B, 421. 422 and 425 LP.C.
H
2. Airninst the aforesaid order, the present pct;tion under
S. 397C~. P. C. ·has been filed on behalf of Lt. Col. ~ud by Shri
D. C. Mat~nr and Kvmari Nare~l1 Parmar. The re·"is:on pctl-
tion w:\s admitted by this court on Augu'.it 20, 1980. When the

30
ILR (1981) I Delhi LT, COL. K.C. SUD Vs. S.C. GUDJMANI 685
A petition came up for hearing, Shri Balraj Trikha, the teamed

Advocate for the resJX)ndent, objected that since Shri Mathur
was the Public Prosecutor for the Delhi Administration, be could
not appear on behalf of the accused person. The revision there-
fore, filed by him was a nullity. He urg~d that no body has a
B right to be heard in a revision and yet in the ordinary course.
the High Court docs hear counsel appearing in revisions out that
is always subject to the rights of the State. He relied upon
Dishes bar and otbers v. Rex. ( 1949) 5 0 Cri. L. J. 3 22 (1). He
C also quoted profusely Sardar Surinder Singh v. Comrade Rani
Pfara M.L.A. and aoother, Criminal Revis.ions Nos. 1161 and
l162 of 1964, decided on January 20, 1965 (2), by a Division
Bench of the High Court of Judicature at Allahabad. Complaints
filed in the court of a Magistrate in Punjab against Surinder
o Singh Kairon and late Shri S. Pea.tap Singh Kairon and some
others were transferred by the Supreme Court for !'rial to a Dis-
trict Magistrnte in Uttar Pradesh. The Kairons filed some re-
visions in the High Court of Allahabad. Pt. K. L. Misra llie
then Advocate--General of the ·state of Uttar Pradesh, it in
aranee on behalf of the accused etitioners after obtaining
ission of the Goyernor as tbe relevant RuJes prevented the
Advocate-General from appearing as a private counsel for an
accused ~rson. Yet an objection was raised to bis awexance.
The Division Bench which came to consider the hsut:, was pre-
F sided over by Hon'ble V. Bhargava, J. (later on a Judge of the
Supreme Court) and Hon'ble M. H. Beg, J. (later on thP- Chief
Justice of India). They held that it was well establNJed that in
all criminal proceedings, the right to prqsecute the offender ves--
G ted in the Government and it was only in exceptional CMCS that
a person aggrieved was a1so permitted to file a complaint in a
crimina} court under the Code of Criminal Procedure. Hence, tlie
proper party in a criminal case wa~ that State Govt. which was
intere1.ted in prosecutin~ the ca<:e, and not the State Govt. within
H whose territory the court was situate. And yet 11,e State of Punjab
was not a necessary party ber'.'"!tr~e in a crirnin1l revision. there
was no nececsary party, but being rm aooropriate authority to
.1.on-cnr ,1<: pro<:ecutor, it could be implead~d as a partv and given
an oppo1'.1lnity of being beard at any star~ of the proceedings

31
686 lNDIAN LAW REPORTS (DELHI) JLR (l 98 I) I Delhi
A arising out of the complaints, if the court considered it desirable

to dJ'l so. Since the Stale of U.P. was not a party, there
bar against the Advocate-General of U. P.· aJ>pe
pacity as an advocate for the accused. avi--..
d, Pt. Misra withdrew, Why ? To keep his offi.
ers)'.. Tb court, however, did not decide the
r it w mpetent or inappropriate for any Adv;
even is personal capacity to appear and r~ r
d to the party which apP:Qinted him
• Trik.ha submitted that in a criroin
,a necessary party or a natural party
esirable party whether impleaded or not and in anv
blic Prosecutor ~inted b - =~~~
It wou1d be against public interest if the Public
o Prosecutor began to play the role of a private prosecutor or a
private defender.
3. Shri Mathur contended that in a petition like the present.

such a question could not be raised; and the respondent if be so
E chooses, should resort to a petition for a writ of quo warranto.
But, this contention has to be overruled because it is not bis
appointment a<- PubJ:c Prosecutor that is in question; wbat is
being questioned is the legality and propriety of the Public ProJ-
sectrtor· to appear against the State. I have observed one Addl.
P Public Prosecutor opposing another Addi. Public Prosecutor in
the same case. To me tllat was an unusual sight but the learned
Public Pro5erutor and his AdditionaJs claimed that they had a
right to accept briefs from any of the parties to the prosecution
G as long as Administration did not debar them from doing so. They .
.i;pecially the Add1. Public Prosecutors, further claim that they
are lawyers empaneIJed to handle only such cases as are a-noca~
ted to them and outside such allocation, they are free to practise
as advocates in anv case for any party which engages them. T6ey
also claim that their predecessors had been doing likewise. There
are besidr-,; several lawyers who appear in the departrnental coro-
nlaints wi1h the freedom to appear against the department in cases
in which the department does not engage them. I, therefore, fctc
that tlie controversy raised was of general public importance,

32
ILR_ (1981) I Delhi LT, COL. K.C. SUD Vs. S.C. GUDIMANI 687
_A and with a v:iew to examine it in all its aspects, framed the fol-
lowing three questions : -
( 1) Whether a Public Prosecu an A

Prosecutor or a panel la~ er for that
B ap~ ar against the State ?
(2)
tration to ublic Prosecutor or an
blic Prosecutor to appear against the State '/
C
(3) Whether a Public Prosecutor can a2pear on behalf of
the accused person in cases institut~ on a £2::!m)laint
h}, a m:ivate P.!!!D' 7 •
D At this. stage, Shri Sita! A. K. Dax, Advocate, joined in.

Notices were also issued to the Delhi Administration; the Presi+
dent of the Delbi High Court Bar Association; and the Chairman
of the Bar Council of In~a. B11t, none of "the officers of tfie
i;:ourt" bas cared to return the courtesy of appearing and putting
E fonh what the considered to be the pro:Qer approach and assist
me in reaching the correct conclusions. Per , they rud not
wish to render '.the labour of love'_and de¥ote their 'valued' time
to the exercise which it appears, seemed sterile to them. But
F unless I knew their views, I had no means of knowing: if the c
troversi m?S non-productive. Alas, the Delhi Admin1stration had
chosen to remain reticent and ignore the notice of this court on
a matter which pertinently and primarily a.fleets public interest
and which, was their immediate conoem. The burden, therefore,
G was shared by Shri Balraj Trikha and Shri Sita] A. K. Dar on the
one side, and Shri D. C. Ma1bur and Shri R. B. Datar. on the
otner, and I must record my appreciation and thanks for their
unqualified assistance. I took time for consideration.
H •4. Blackstone ilivided wrongs into private and public.

former are termed civil injuries~ the 1atter, crimes, because a
crime is an act harmful- to the public. Yet, at certain level this
classification breaks down and crime remains inca able of recise
juristic definition. But th<i General Oauses Act and the Code of

33
688 INDIAN LAW REPORTS (DELHI) ILR (198 I) I Delhi
A Criminal Procedure have made the task easier for us. Crime is
orbing out an offence, ana an offence is an act or omission which
·s made pllrlisfiab e 15y an law for the time being in force and
•subject to any specially enacted modification, js capable of being
investigatea, inquired into, tried and otherwise deal ith accor-
B oing to tht: provisions of the Code of Criminal Procedure cucrcotly
prevalent. Any per:-on can set this procedure into motion, he-
cause if he otherwise arrcgates it to himself. to deal with it in his
own manner, he wi.11 himself most likely commit an offence. It
C sounds so simple but it has taken the human civilisation centuries
to reach this stage when !he modern State has come to acquire
a monopoly to adjudicate and use force when fights between pri-
vate individuals take place. That is why justice is represented
by scales and sword. In all prosecutions the State is the proseClltor
I) and a proceeding is always treated as a proceeding between the
State and the accused. State alone ha,; the interest in pcaa;:. and
secunty and has the rigtit to prosecute and the complainant has
no independent right to have the guilty person punished; see
Queen-Empress v. Mur arj i Goku Jdas, (18 89) I. L. R. 13 .Hom.
~ 389(3); Atmaram Mahadeo Ghosaie and others v. State A.1.R.
I 965 Born. 9( 4); In re Malavil Kottavil Koyassan Ku tty, (1917)
18 Cri. L. J. 329( 5): and Gulli Bhagat v, Nflrain Sing..,. (1924),
25 Cri. L. J. R. 446(6). That is so because the society has so
far found no better clevice 10 combat crime in keeping with the
F needs ·of peace and ideals of liberty ;ind yet, a-s in cas~ of civil
litigation, it" wa,. the criminal and his victim who were required to
settle their scores in the court. It took a tong time for the society
to realise that it should largely take over the prosecmional functions
G because it is a neutral interc~tor-it never . loses, it never wins.
But the court affairs call for expertise and hence conduct of
secution is entrusted to prosecutors aJ! ol.ntcd by the State.
5. But the defence is still Iais~ez faire. Our criminal justice

II system is cracking under the oppressive weight of (l) delay and
(2) costs. Of coune, thc.omount of work in the courts hai,; goL
to be large in v;cw of the twin explotion of population and lcgis-
la•ion. 0t"lav is there because it suiis one of the contestants. In
crlmcs inv;tin-g c;evcrc pe!lalties, Jclay h::is proved to be of immense

34
ILR (1981) I Delhi LT. COL. K.S. SUD Vs. S.C. GUDlMANl
A advantage because, as the time rolls by, the initial indignation of

the victim aod the society wears off, witnesses are persuaded by
threat or temptation to resile or their recollections genuinely faint
or fail, the legislature may alter the law or the courts reverse their
rulings or reduce or relieve tbe severity oI the consequences or
B non-prosecution or composition may take place. In cases of vexa-
tious prosecution, it suits the complainant because be can subject
his adversary to continued harassment with regard· to any sup-
posed or genuine grievance. "'So, one party has always a vested
C interest in delay backed by expert and tactical management of
the case in its passage through one court and from one coun to
the other. The other malaise of costs in criminal cases comprises
mainly ,the price of the legal services which continue to spiral
along with general inflation. Without a beavy price, best service
D is nor accessible in a temple o( justice. Our present legal appa-
ratus is nothing but a legal priesthood. Efficient judicare is avail-
able onlv to those who can afford to buy. In Mundrika Prasad
Sinha v. Sate of Bibar, A.LR. 1979 S.C. 1871(7) (paras 4 and 17),
the Supreme Court posed the question, "What in essenc.e is the
E orientation of the bar ?", "Geared to the people·• or "a conspiracy
against the laity ?" It ~pproved the remarks of Joel Gerstl and
Glenn Jacobs at p. 3 of "Introdll'ci:ion" to their compilation "Pro-
fessions for the People", that "one could carry on commerce by
sleight of hand while donning the vestments of professional al-
F truism". Having recognized that the system itself prevents justice
from. being accessible to those who are without resot1rces, Article
39A of the Constitution of India directed tbat "the State shalJ se-
cure that the operation of the legal system promotes justice, on a
G basis of equal opportunity, and shalt, in particular, provide free
legat aid, by suitable legislation or schemes or in any other way to
ensure that opportunities for securinir justke are not denied to any
citizen by reason of economic or other disabilities". Blff nothing
is on the anvil to impkmcnt tl:ic first and more important parl.
H More cmpha~is"is laid on the second. that is, free, legal aid. Though
the second part has got to be implemented. yet it is a sympto-
matic treatment while the system ca.Us for a courageous operation.
In the countries where the State has adopted public defender
system, it has tended to speed np court procedure, yet there are
2021-06-25 (Page 10 of 21) MAN U/DE/0052/1981 SARVADAMAN OBEROI

35
690 INDIAN LAW llEPORTS (DELlil) lLR (1981) I Delhi
A people who refuse to support it as they regard it as a step to-

wards socialisation of law. Even the Royal Commission on legal
Services in U. K., rejected for no solid reason the suggestion for a
national legal service, vide its Report, Vol. II, P. 251, para 5.7.
But the objective of the firsl part of Art. 39A cannot be achleved
B by periodical tinkering with procedural Jaws or by providing free
]egal aid. Time has come when it must seriously be considered
whether the purpose of the ConstiMion can best be ful.filed only if
a national legal service is cohstituted. But more of it on some
C other occasion. Sufiice to say for. the present that while the de-
fence is still jn the private sector, investigalive and prosecuting
services stand nationalised to a great extent at least in the area of
major crimes and that is why efforts should be mac;fe lo preserve
the integrity, impartiality and efficiency of these services.
D 6. In U.S.A., the District Attorney whether elected or appoin-
ted is a lawyer, politician, law-enforcement official, administrator,
reform advocate,· "architect of fair trials", local "minister
of justice", all rolled into one. He is bound by the ethics both
E of his office and profession. His office demands and the public
expects him, to accord basic fairness to all persons. to protect
the innocent and to safeguard the rights guaranteed to all. includ-
ing the f!Uilty (see Donald J. Newman. Introduction to Criminal
Justice, Ed. 2, pp. 207-209). 1£ a: public pr<"secutor in one
F State defends a person accused of crime in another State, it
is considered that it would undermine confidence in him and his
office. A former prosecutor cannot represent, on appeaL a patty
pfQsecuted. The partner of a prosecuting att-::irney cannot
defend one accused of crime in another country ( see Henry
G J. Drinker, Legal Ethics, pp. 118-119). As early as 1704, a
Connecticut Statute provided, "Henceforth there shaJl be in
every· countie a sober, discreet and religious person appointed
by the countie courts to be attorney for the Queen to prosecu1e
H and implead in the laws alt criminals and t9 do all other thir.gs
necessary or convenient as an attorney to suppress vice and
rmmora Ut ie".
7. ln U.K .. therl! is nofhin.2 like a District Attorney cf
U.S.A.- a· lawyer who is engaged simply and solely in the work

36
ILR (1981) I Delhi LT. COL. K.C. SUD Vs. S.C. GUDlMANl 691
• A. of prosecution. The Director of Prosecutions discharges the

functions of the Crown's solicitor in criminal matters. The
Attorney-General continues, himself or by bis nominees, to
discharge the functions of the Crown's barrister. Ln all prosecu- _
B tions that are initiated by the Director, the Attorney-General
either appears himself or nominates counsel to take the brief.
Acura.lly, he appears himself in only two or three of the very
important cases each year. ln courts where there is a great
deal of work done by the Director, for example, the central
c criminal court in London, the 'Old Bailey', there is a panel of
counsel appointed by the Attorney General as Treasury
counsel who are retained to prosecute in the Director's cases.
At the Old Bailey, there are six such counsel. Bath of them
has a criminal practice and rarely does civil work; but they are
D enti11cd to appear for the defence and quite frequently do so.
But it is well established that the prosecuting counsel is to act
as a minister of justice assisting in its administration rather than
as an advocate; be is not to press for a con,viction but is to lay
E all the facts, those that tell for the prisoner as well as those tbat
tell a·gainst him : see Patri_ck Devlin, The Criminal Prosecution
in Englend, Ed. 1966, pp. 20-23; Regina v. Pudctick, (1865)
4. F. & F. 97(8); and Rex v. Banks, (1916) 2 K. B. 621(9).
In Jndia, according to the Code of Criminal Procedure. 1973.
F Ss. 90, 2(d) and 2(r), the prosecutions are institutell,-
{a) on complaints by private persons
(b) by the police, (!) on police report, in case of cogniz-

G able offences; and non-cognizable offences investigat-
ed under S. 155, and (ii) on a complaint in cases in
wlJich after imrestigatioo a non-cOj!;llizable offence is
disclosed;
H
fc) on complaints by specified public servants or courts:
(d) on other information or personal knowledge of the

ma~strate.

37
692 INDIAN LAW REPORTS (DELHI) l LR (19~~1) I Delhi
A 8. The law has taken care that the prosecutions which are
brought by the State agencies are properly and impartially moni-
tored and therefore has created the office of the Public Prosecutor
under S. 24 of the Code and any otber person appearing is
required lo act under his directions. The Code providcs,-
li
(a) for the High Court, a Public Prosecutor and Addi.
Public Prosecutors appointei;t by tbe Central Govt. or the State
Govt. for conducting in such court, any prosecution, appeal, or
other proceedings on behalf of the Central or State Governments.
C
as the case may be, after consultation with the Higb Court;
(b) for the District, (i) one or more Public Prosecutors

appointed by the Central Govt. for the purpose of conducting
n any ca-se or class of cases; (ii) a Public Prosecutor and one or
wore _Addl. Public Prosecutors, if any, appointed by thl! State
Govt., out of a regular cadre of Prosecuting Officers where such
cadre exists, otherw·ise out of a panel of advocates prepared
by the District Magistrale in consultation with the Se.~hms Judge;
(c) Special Public Prosecutor appointed by the Central

or State Governments for any case or class of ce.ses_: and
(d) Asstt. Public Prosecutors appointed by the Stale or the

F Central Govemrnent in the courts of ma~istraies; no police
officer can be appointed as an Asstt. Public Prosec'.1tor. Wh{:n
no Asstt. Public Pwsecutor is available for any particular c::ise,
the District Magistrate may appoint any person as Assff. Public
Prosecutor including a police officer if h~ is 110: below the rank of
(;
an Inspector or if he has not taken pnr; in the invcqi~ation into
the cffence with rcspecl to which the accused is b::ing prosecuted.
A magistrate may, however, permit the prcsecution to be con-
ducted by any person or his pleader_ but the Advocc1tc-General,
fl Govt. Advocate, or a Public Prosecutor or As~tt. Public Pro~c-
cutor will require no permission. (Ss. 25 and 302 Cr. P.C.).
The Public Prosecutor in charge of a ca·se may appear c1nd plead
without any written authority before any court of inquiry, trial or
appeal (S. 301 Cr. P.C.). Jo every trial before the High Coun or

38
ILR 198)()) I Dt:lhi LT.COL. K.c: SUD Vs. s.c. GUDIMANl 693
A . a fOurt of session, the pros,ec:ution shall be conducted by a

Public Prosecutor (Ss. 26,225 and 474 Cr, P.C.), Public Prosecu-
·tors _present appeals (Ss. 377 and 378 Cr. 'P.C.) and can with-
draw prosecutions {S. 321 Cr. P.C.).
B 9. In the State of. Bibar'v. Ram Naresh Pandey and another

AI.R. 1957 S. C. 389(10), the wurt bas observed that in this·
country, _the scheme of the ·administratipn of criminal justi,co
is that the primary responS1bility· of prosecuting cogi;tiz.able
C offences is on the executive authorities and therefore, the Public
Prosecuto1; ~gh an executive,,officer, is in a larger sense also
~ offi~ of the· court He is bound t9 assist- the court with hit
fairly "'considered view and the court is entitled to have the
benefit of· ~ fair' exercise- of his function. According to·
D Subhash Chander v. The State (Cbandigar~ Admn.) and others,
A.l.R, 1980 S. C. 423(11), in certain respects (such as while
exercia.ing the power of withdrawal) the Public Prosecutor acts
as a limb of the· judicative process. He must work as a ~ter
of justice assisting the State ill the administration of justice and
E not as a representative of a p&rty; see Roop K. Shorey v. The
State, 1967 Cri L, J. 251(12). The office of1the Public Prose--
cutor is a public office and inVQIVes duties of public nature and
of vit.oI ·importance to the public and ho is not joot nn advocate
r engaged by the State to conduct its pI'Olecution; see A. ·1v1-oba:m-
baram v. M. A Jayayelu andj others, A:l.R. 1970 Mad·. 63(13).
Even the . Govt. pleaders under the Code of CiviJ. Procedure
were held to.be holders of public offices; vide Smt. Kanta Kathuria
v. Manak Chand Surana. A.I.R. 1970 s.c. 694(14) and Mun-
G drika Prasad Sinht (supra). In ·Mabadeo v. Shanti Bai (Cri-
minal Appeal No. 1832 of 1967 decided on. 15-10-.1968)(15),
the Supreme Court held t1}at a panel lawyer engaged to conduct
cases on behalf of the Railway Admhristration held an office of
H prpfit. - In Statesmen (P) Ltd. v. H .. R... Deb and others, ~.I.R.
1968 RC. 1495(16),- it was .observed that an office is a· posi-
tion to which certain duties were attached. A public _ office
was one which" entitled ,tman to act in the affairs of others without
their appointment ~ ~ioo·. A~rding to Great Western

39
,
694 lNDJAN LAW REPORTS (DELHI) 1LR ( I 981} I Delhi
A -·Railway Company v. Bater, (1922) 2 Tax Case. 231(17) at

235, if a man \yas engaged on whatever terms, to do dutiea which
are assigned to him, his employment· to do tbOSP. duti~s did
not create an office to which these duties are attached. He was
merely employed to do certain things and that is •an end of
B it and if there was no office or etnployment existing in the case
es a thing, the ~ e d ·office 'Oli emp]oymerit was mere1y an
aggregate of the activities of the particular man for ,~ time
being. "An office on the other hand, is a substantive thing that
c existed apart from· the bolder which went on and- was fl.fled in
succession by successivci .holders. There 6bould tbetefore ·'be no
doubt that the Public Proeeeutor holds a public office •created
py 1Jlw riglit from the court of, a m~strate to the High ·court.
It exists apart from the incumbent. The P;QSition b~ itself is of
D pennanency: and-continuity and even involves exercise . of some
rtion of soverei functions of-tlle State.
10. There was no Public Prosecutor ·in -the High Court but
.E upon the re-commendation o( the Join~ Contmittee, the. 1973
Code created such -an offl.ce ~ tlte_:.Bigb .Court. It was u n the
stion of the Law Commission_ that it W$ enacted that toe
inzwnbeot of this office both in-the Hi~ Court 'and the court of
.. session should be recruited from the bar. The Code ha_s attempt-
F ed to completely separate the prosecution from investigation and
to secure the indepcndenc_e of. the office of the public prosecutor
from executive by providing that he shall· be appointed ·in con-
sultation with the High Court or the court of sessi·on, as the case
m be. e system of engagement of. Jawvers in the High Court
was eliminated.
i 1.. Upon i short survey of -precedents practiee and scheme

of public ·prosecutioos, one can -sefcly say that the PobJic· Prost"'-
H cntor the Addi. Public Prosecutor nd the Asstt. ·Pub4ic Prose-
cutor, hold an office. It .lar&elY differs front the practice pre-
valent in U. K. where tlle Treaiu_ry solicitor holds a flUbtic office
but the barristers briefed by him.float from one side to·the other
as they do not hold any office. It diffen from a District.

40
ILR (1981) I Delhi LT.- COL-. K.C. SUD .Vs. S,.C. GUDIMANl 695
- j i,~ . ;'::~ .... :-.. ;,
.A-Atta.~~y_.,in._~l~ $~-w-~e l)'.Wers tJian :liis,.Jndian
~opn~ _, ,art .~~~ JA,J@: . 'i!,.Jofiice _9f_ trust and tb.erefore,
• _e ~ ::\"l~r-~mir. ~J½S ~ ~ l e .to.,misuse ap __ e9rruw
~~n ,i f ~ot p~~~'•-~ ~- ~~ ~ .~ ~e of .r~~n~?ilit7 more
" '.Yi'\1?,0nfD t _J,l~ll:n, nw,ny -~ O ~ .- the ' jhw,der JS . ~~d to
g ~-~ ~th ~~t ~-D~ >ppe -.~ Md . let wiUi vigour
on :tlie .. o.~~- ~~:1'~,~"'_,~e .iecaj~ to t_bese offices,
~~ 1pa!t'.~-~~ p;:o_t;~ ,~- ~cial .qbljpqqns_ :fllld pri:n-
1~ - .~.w,.e :· ~~- Ji~Hl .~ve 8.{W[,9~tely J_~ e ii .
~ ~press ·temi ·_gt.. their "~tm~t that -the;.~ -~hall, 9'Qt ~ccept
.~Y -~ Jn - . ~;tl_,U)il1tefa_ _iqid ~ba,Jl.DQt .~~~ 1n p~ _.matters
•~l?'J>~~-.tu ~Y. . _ ~ -.:~ ~ ~ e Jn_t~Q!S,ts .of;rE~-iS~te_,fppear to
pe j1.1Y,9.J~: . ;i;..arp ,P:f¥J.¥li 4~~ ,~eir posit:ion , in Alfred
Croiiipton Amusement Machines- Lt_d. .v. ,~MO~~ of
D Cu~oms and &cise, {1972) 2 All H. R. 353(18) at 376, l~ke
.this,-
·"M'aoy lbarrii-f6i,a and- !Olicitors ate employed as legal
- ~ . wbole tinlc, 'by a sitigle employer. S0q1e~
..E -·timel :fl:te ~ e t is a :great commercial concern .
-At other times· it ·1s a govertunent department or a
l}ocal-~. • -It ·may ~ii .-be· the govemme~t it-
~ . ,;Re ·the Tteastlry ·&iicitoc ,and bis s~. J;n
,.~v~.,~e -:the&e ·legal ·achfiscrs -do: l~gal. :work f\lr tbeir
F em,~yer _ ~d •~or, ii~ one e~e. . ~ :~~. paid, not
•1,y fees -for •elroh. piece of work, ·bilt J>_y a fixed
annual salary. They are, no doubt, servants or
p.ge:n,t.s_~"'.tJ)e emph1fer.•.
n xx xx
G
They are regarded by : the law - u 'm •every respect in
• the same posltion as th_O$e--~b~,p.ractjse·,on;·their own
account_ The only difference is that they act for one
client only, and ndt 'for 'severai ctien'&·'. They muat
H uphold the same stan~,ot/bopc~.ur lffld ()f etiquette.
~ are subjeet to the same· duties to their client
.~·~i' to ·,the cirurt. tj_ey must ~~ ·9ie ',a·ll)~. confi-
dence.. . They and iheir 'clients h,ve. the fame
privilegoe!I." •

41
696 INDIAN LAW REFOJlTS (DELHI) ILR (1981) I Delhi
A 12. Even if their remuneration is described a· retainer, it is

not much distinguishable from salary. Retainer means a fee not
only for the rendition of professional services when requested
but also for taking the case, making himself availabfo to handle
8 it and refnsing employment by tbe adversary. .When a client
retains an attorney to act for him, he thereby prevents him
from acting for his adversary, vi.de Black's Law Dictionary,
Ed. 5, p. 1-183. l'hecefore, the Public Prosecutor whether re,-
tained or salaried can work for onl one client. that is, the
State. • To y_!eld to an: 0th.er position, :will be , to dem&ge the
~ty .iropartiality and efficien9'. •of the office. If there bas
been a practfoe to the contrary, it has to be discarded aftec such
an office bas been created· for the Hi Court "y the new Code.
13. Toe LL Governor of Delhi issued the followin notifica.
tion oo April 14, 1980 _,
exercise of the powers conferred l)y: sub-sectio !!!!!!!!!!!!!!!-->=~
of Section ·24 of the Code of Criminal P~

1973, the Lt Gove~ or, with rior consuita •
E the Delhi Hi r = ~· P.!eased to aRl?2!nt
dvocates Prosecutor/Additi01
Prosecutors, for_criminal work in the ='""=~;;;aa;aa;;,;.;
Hi
Delhi with effect from the date they resume ch
F Standing Counsel (Criminan/Public Pros,ecutor :
Shri Dinesh Chand Mathur, 3 Ansari Road, Daryaganj, ~-
Delhi.
G Panel Lawyers/ Addl. Public Prosecutors:
1. Sbrl Dilbagb. Raj Sethi
2. Shri I. U. Khan
3. Shrl Teja Singh Sodhi
H
·;i. Shri Harl.sh Gulati.
Thi~ Administration's-Notifications No. F. 3(13)/74-Lit. dated
22-12•77, 1-4-79 and 2-1-80 are hereby cancelled."

42
J(R (1981) I Delhi LT. -COL. K.C. SUD Vs. s.c. GUDIMANI 697
A .Jt appears that Shri MathW" -is a Standing Counsel (Criminal)

and the other ·roar arc panel lawyers for the same purpose. They
have been appointed as Public Prosecutor and Add.I. Public Pro-,
secutors under the Code. We_ do not know what their terms of
B appointment are ; nothing has-' ·been .placed on record, perhaps
they treat •them as confidential. But Shri Dar informs that -there
is an office of the Public Prosecutor which carries a 'fixed· salary of
Rs, 2500.00 pet. month· with an office establishment, naib court
and telephones .provided by the Administration. To· this office
c belong· the· Addi. Public Prosecvtocs. The· Public Prosecutor is
responSib1e for the entire criminal litigation in the High Court. and
also tenders adviee ·on matters referred to him. , All criminal w.ork
is allocat~ by the Administration to Shri Mathur who in tum
allocates ~rk to t,\le Adell. Public Prosecutors, who are paid
D casewise,. subject to some maxim1,1ID per day. All of tbfm cl~m
that they are required to han~e whatever ·case-work is allotted
fo th_em by the Administration· and· they are free to take up private
work and even have the right to oppose the State and it& prosecu-
tions if the same is .not allocated to them. They contend that they
E are not Go'Veflllllent servants who cannot take-_._up any other
assignment. •They are Ieglj] practitioners first and. public ·prosecu-
tors -afterw.:µ-ds and are rio~ required to suspend their practice
under Rule 51 of Chap. II of the Bar Council of India. Rules. They
F continue to remain advocates .and can, unless specifically disbarred
by law or by· the Administration, accept briefs against the State
not only iri:private coinpiaints but ·even in cases in which the pro-
secution has be.en lodged· by the police or the State or any other
departmental officer. They rely ,upon M. D. Sigamani v. Vidya-
G sagaran,. (1969) L M.L.J. 99.(19),_in which it was._held that tho-
ugh an Asstt. Pllblic. Prosecutor being a full-time Governm'ent
servant could not, even upon· permission of the Colle.ttor or the
Commissioner of Police, appear for any pe,rsoo in· any'case as a
practising advQCate, but an Add]. Public Prosecutor appointed for
.H a_ specified period,or 'specified cases did not cease to be an advo--
cate and tbere was no prohibition for· his appearanee in any case
for_ a party as an advocate if- the Gov~rnment permitted -hint_ to do
·so· during his period •of service. as Addi. Public Proserutor. They
further point out that S. 3:Zf of the Code, as _construed in

43
698 TNDfAN LAW REPORTS (DBLHI) ILR (1981) [ Delhi
A Ratansbah Kavasji v. Koki Behramsba and others, (l 945) 46 Cri.

L. J. 434(20,, clearly indicates, that in- order that a prosecution be
withdrawn, the prosecution must be one which is already being
conducted by the Public Prosecutor. Unless,- the Public Pn,se.cu-
tor is already in charge of the prosecution, -he- cannot withdraw
B ~ it; vide State of PUnjab· v~ Sifrjit' Siligh and a'riothet, A.LR.
1967 S. C. 1214(21). And;· therefore, until 1t ·Poblic ·Ptosecu-
tor is put in charge· of a aitte; he cannot apt· O:C plead· in tbat case
(S. 30! Cr. P. C.) and be shallbe ~ to have bcen·app6ilitcd
C case-wise and not generally for all CliSeS, 'and that leaves him free
to accept private briefs in .any other <:ase; -indeed, he is bound· to
accept a brief from a: persooiwhcroffers it first to him. vide'·Rtlie 11
of the Bar Council of Jndbl·-Jtule$, Chap. II.
_14. OnJhe,ot~ ban~·,~~~~ up ~e extrem~ ~ition
D that_ a Public Prosecutor ceases·to·oe an $oc&t&. In S. Naganna
v. Krishna Murthy and anoiher;· A.tR·. t96s· A.:f 320(22), in a
private comphuni filecf against two police offi~rs A.P.P. claimed
the right to appear to defend the accusoo:which vlas rej~ed. A
public prosecutor though~ cj'uanfied legal practitioner is· a whole--
E time Government servant. and must suspenct' his practk:e. upon
enterlng· ·oo~nt servk.e. rte cannot therefore· api,ear for
the acensed· in his capacity as
a: practising advocate. Th~t apart,
it" was' urged that ma'n ai.mh,-a1 c~~- at an stages_ the $tate is a
pSI\y either express or im~tid.. Th~rerore, an officer. be he an
F advocate, appointcii. as Pubfw Prosecirtor or an Addt Public
Prosecutor is retained by the State· and cannot appear ~ nst the
State ·during his terin.. of omce ettber here or below on be'half
of the aCC\JSed. That is the spirit of. the tode and. that is the
requirement of profes·sional pr6priety and· C?tljics. If this were not
so lield, the result will be that h will be fe-ft fo the· sweet-will at
the Public Prosecutor to appear in i,i ca·st- or ~ses as an .advocate
for a rivate 'art - specially Juc:rative· one and teave the State in
:lurch and in search for a new Public l'>rosetutor in that.case or
H ca•·es . .b~t the iaw docs not envisage nioie than one Public -~.rosccn-
tor. 'It was urged vehemently that the Public prosectttot and along
with him' his juniors, have an access to c>fficlai and coofideQtial re-
cords and if they are. a Uowed private practice, ttien there at e mar.y
chance~of this secret know1ed~ belog used against the State. More
\ •

44
ILR (1981) i' Delhi LT. COL. K,C, ftUO Vs. S,C, GUJ,)lMANl
A oven if these officei:s are aµa:~. t'? do private practice, then every
a<:cl.lsed wilt run lo :re"tain them because of the benefit that the
Public Prosecutoc will- get aµruence· in the courts and that
is bound . surtlY. tct ieai \O· ~ Qt). and abuse of the office.
I thiJ,u:: llierc is COAS~~~ bc:,e in • submissions and I am
ae •
of. the view Wtf the o,t;liq,, of_ . Pu.bile Prosecutor has to bo
kept abov~. such ·s u ~ .Qd ¥:S. ~ a.n,J perfection have to
~ pr~ecied. ~ , offi~ . qf_llie· Pul,lic Prosecutor includes the
Adc,ll. Pub.Uc Prosecu~or u.d· tbe -Asstt. Public P!osecutor. -The
·c Code envisages that th~_ o1iic«s· :,hQU)d be..oxclusive ones. They
are not expected and cannot be permitted to a ~ agaimt ·the
proirecution, whatever be the· mode of ~ yment for th~ir services .
•To do othmvise, will be _the very antltb.esJs of the functions in•
volved in pubffc prosecution. Same conclusion should apply to
a
·.D - ~ counsels. To my mind, excep~- _dlfl'erenre ot PfO"
cedure with· regatd to trial, complaints by courts or plJbUc servants
•~~ _deparupeut~ .ofti~rs me also pr~15 launched by the
St,$~ and su~b ~ shQuld not_ ~ allowe6 to •aJtemate their
sides; rather. they must be desigw®d '8 P\,bijc Prosecutors or
E _Addi. Public ~osecuton, as the need may dictate.
•~5. The· Publij Prosecu~rs assert that if \lie Stite ~as to

F obtain the servict::5 of ~¢ ~~n~ men in .PfOf~ss~o~ it has
to allow them. such freedom, otherwise they cannot ~ ayailable
OQ the ·me~ emoluments that the ~tate can o(fer. Bltt" then,
~t is for the State to pay the Pu6lic Prosecu_t_9r properly an(! ade,. ,
qua.tely and. not permit him to look .for private briefs. .But it
G 2annot par b.e~vily. •I_t must pot be forgotte~ ,that men ci. enti-
n~pce 11~t ·a puQiic office not. for but 1n tbe spirit .of sa¢.flce.
At any rate, it is bet~«. to have- a man 9f common me~t than to
·a.now· ~h~ office ~ing· exploi,te~L It bas. been the e~ence that
many a· lu,dge and let¥Jers in politics _an4 .professiQD. haye earlier
H been public or ··departmental prosecutors; (vide :flenry BJrin,er
Barnes· and Negley K. Teeters, New Horizons in Crlmlno]ogy, Ed.
3, Chap.· 16: p. 241) . • -One oorm of fu:in,r the reasonable pay-
~ t .coul4. t,e- to foDO:W the ~ttem adopted in the States in th0
neighbourhood of Delhi.

45
700 INDIAN LAW REPORTS (DELHl) JLR (1981) I Delhi
( 1) The Public Prosecutor, the Addi. Public Prosecuto(S

cannot appear against the State in criminal ma,tiers.
That is so even where the P.~ has carefully avoided
B,. to implead the State as a party in a revision or an
appeal, or any other criminal proceedings. This aPz
plies to panel lawyers as well, because no panel
lawyer can appear without being am,ointed as an
~ ~ A- d_d1. Public Prosecutor. ~- '
C
It is not rmissible for the State or the Delhi A.dm.in-
i,.tration to allow the Public Prosecutor or the Addi.
blic Prosecutor to appear against itself and it must
provide so ifically in the terms of their appoint-
D ment.
Prosecutor cannot appear on behalf ot

the accused even in .cases instituted on a complaint b)':
a .P_!!va=t.e::.. .r ~
E 17, Now. the present revision petition. These proce.edings
occupy a peculiar position in criminal procedure. No party has
a right to be heard, either in person or by pleader except where
( i) an order to the prejudice of the a'tcused or the person is
F made, or (fr) the court thinks it fit to do so; Ss. 401 and 403,
Cr. P. C. But at the same time, any person including the Public
Pros'ecutor even where he coosiders some injustice has occurred
to an accused· person, can bring to the notice of the court any
illegality or irregularity or impropriety. Therefore, though Shri
G Mathur cannot be heard as of right and that will be the· position
even if it were a revision by the State; but the revision filed by
him cannot be held to be a nullity. Further, I see no objection
to the appearance of Kumatj Pannar on behalf of the petitioner
on the sole ground that she has been working in the chambers of
H Shri Mathur.
18. The revision petition may now be listed for hearing.
• • Ordered accordingl:v.
S. V.

SCC® SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.
Page 1 Sunday, March 03, 2024
Printed For: Mr. Sarvadaman Oberoi
46
ltld•1¢1# SCC Online Web Edition: http://www.scconline.com
© 2024 EBC Publishing Pvt. Ltd., Lucknow.
T!.. SW'tSf WW/ to !Lgal ,-,,d,/"
-----------------------------------------------------------------------------------------------------------------------------------------------------------
2024 SCC Online SC 203
In the Supreme Court of India

(BEFORE M.M . SUNDRESH AND S.V.N. BHATTI, JJ .)
Shailesh Kumar ... Appellant(s);

Versus
State of U.P. (Now State of Uttarakhand)
Respondent(s).
Criminal Appeal No(s) . 684 of 2012
Decided on February 26, 2024
Advocates who appeared in this case :
For Appellant(s) Mr. D.P. Singh, Adv .
Mr. Vikram Singh, Adv.
Mr. Amit Gupta, Adv.
Mr. Archit Singh, Adv .
Mr. Manu Mishra, Adv.
Ms. Shreya Dutt, Adv.
M/s. Mitter & Mitter Co., AOR
For Respondent(s) Mr. Saurabh Trivedi, AOR
Mr. Ashutosh Kumar Sharma, Adv.
The Judgment of the Court was delivered by
M.M. SUNDRESH, J. : - The appellant convicted by the Additional
Sessions Judge/Special Judge, Anti-Corruption U.P (East) Dehradun in
ST 166/1992 under Section 302 of the Penal Code, 1860 (hereinafter
referred to as "IPC") for life imprisonment, as confirmed by the Division
Bench of the High Court of Uttarakhand at Nainital in Criminal Appeal
No . 888 of 2001 seeks acquittal.
2. Heard learned counsel Mr. D.P Singh appearing for the appellant
and the learned counsel Mr. Saurabh Trivedi appearing for the
respondent. We have perused the entire records placed before us, and
taken due note of the synopsis notes submitted .
BRIEF FACTS
3. The deceased, Gajendra Singh went to a picnic along with two
friends, Suresh (PW-2) and Sunil Mandal (PW-3) at about 11 a.m. on
the fateful day - 21.06.1992. On their return, they were intercepted by
the appellant riding on a motorcycle. The appellant by uttering the
words "Today I shall pay all your dues", attacked the deceased
Gajendra Singh with a knife inflicting two fatal blows on the chest and
stomach respectively. The motive of the attack appears to be the failure
of the aooellant in comoletina the work for which the deceased aave a
47
-----------------------------------------------------------------------------------------------------------------------------------------------------------
sum of Rs. 500/-.

4. PW-2 and PW-3 took the deceased, who was bleeding profusely on
a tempo whose driver has not been examined, to the hospital in which
PW-5 was working. After admitting the deceased in the hospital, PW-2
went to the house of the deceased by travelling, which took him 15
minutes, and passed on the information of attack on deceased, to his
father, PW-1. On examination, PW-5 found that the deceased was in a
serious condition and, therefore, merely gave first aid and referred the
deceased to a hospital in Dehradun. After reaching the hospital, PW-1
made an enquiry with the deceased who gave a dying declaration
narrating the incident. PW-5 did not speak about the presence of any of
the witnesses except the fact that the deceased was admitted by PW-3
and, therefore, did not refer to the said dying declaration given to PW-
1. PW-1 dictated the complaint to one Mr. Inder Singh (not examined)
and went to the police station situated just opposite to the hospital.
Prior to the aforesaid action on the part of PW-1, PW-5 has made an
entry in the emergency medical register which was subsequently filled
up by another person named Dr. B.V. Sharma (not examined) . Dr. B.V.
Sharma sent report immediately to the police station.
5. Before PW-1 could reach the police station, the report from the
hospital had reached and, therefore, investigation was triggered.
However, neither First Information Report (FIR) had been registered
nor noting had been made in the general diary. In fact, the available
noting on the general diary did not disclose any offence committed on
21.06. 1992, as per the statement of PW-13, who produced the same
before the court.
6. PW-2 and PW-3 took the deceased to the nearby hospital at
Dehradun as per the version of PW-1 and PW-2, while PW-3 said it was
himself and PW-1 who undertook the said exercise. As per the version
of PW-8, the doctor who attended the deceased at the Dehradun
hospital, the deceased was brought to the hospital by his brother Mr.
Bhupender Singh (not examined).
7. PW-11 took up the investigation. He went to the place of
occurrence, drew the sketch and prepared the site plan . While
returning, he was informed by PW-7, another brother of the deceased
that he received information that the appellant was trying to escape to
Dehradun. PW-6, who heard about the occurrence, went to the place of
occurrence out of curiosity. The appellant was found and arrested at
about 50-60 yards from the place of occurrence by PW-11 in the
presence of PW-6, PW-7 and one Mr. Sanjeev Saini (not examined). The
knife that was said to have been used for committing the offence was
recovered from an open place at about 50 steps near the place of
occurrence. No arrest memo has been prepared though an entry was
made in the oeneral diarv. Recoverv memo was sioned bv PW-6 and PW
48
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-7 alone.
8. The post-mortem was conducted by PW-4, Dr. Jaideep Dutta,
which indicated two major injuries, in tune with the case of the
prosecution . PW-9, being the police officer of a different jurisdiction,
prepared the inquest report, presumably on the ground that the
ultimate death happened there, as the second hospital was situated
within his jurisdiction.
9. After the initial investigation by PW-11, PW-12 took over the
further investigation, but did not take adequate care to check and verify
the earlier statements given by the witnesses. Some of the witnesses
have been examined at the earliest while the others like PW-2, PW-6
and PW-7 were examined 2 weeks thereafter. The FIR was curiously
sent by post and, therefore, reached the jurisdictional magistrate days
thereafter.
10. During the course of trial, the prosecution examined 13
witnesses. In the questioning made under Section 313 of the Criminal
Procedure Code, 1973 (hereinafter referred to as "CrPC" ), the appellant
clearly denied all the charges levelled against him. On a request made
on behalf of the appellant, the general diary was summoned and
perused by the trial court. This was done as a question was raised on
the story propounded by the prosecution which goes to the date and
time of the occurrence. On perusal, the trial court found out that there
were certain interpolations with specific reference to the dates and
certain pages were missing and jumbled. While giving a finding that
the noting of the date as 22.06. 1992 and thereafter striking it off to
21.06. 1992 as a clerical mistake, the trial court went on to put the
blame on the appellant that he maneuvered to do so in connivance with
somebody, though the said correction could only help the case of the
prosecution .
11. While convicting the appellant, the trial court placed heavy
reliance upon the evidence of PW-1 to PW-3. The discrepancies qua the
emergency medical register and amongst the statements of PW-1, PW-
2 and PW-3 were brushed aside as minor and natural or ignorable
discrepancies due to the passage of time. Much reliance has been
placed on the recovery of the two-wheeler, though not mentioned in the
site plan. The delay in recording the statement of the witnesses were
also taken lightly. The so-called dying declaration given before PW-1
was accepted, despite a clear statement made by PW-5 that none was
present during the stay of the deceased with him till he was sent to the
other hospital.
12. The High Court concurred with the decision of the trial court by
placing reliance upon the post-mortem report and the testimony of PW-
1 to PW-3.
49
-----------------------------------------------------------------------------------------------------------------------------------------------------------
SUBMISSION Of THE APPELLANT

13. Learned counsel for the appellant submitted that the evidence of
PW-1 ought not to have been accepted by both the courts. The report
from the hospital had reached the police station much before. The
person to whom PW-1 dictated the complaint has not been examined.
There is no material for motive and the testimony of PW-1 is contrary to
the one given by PW-3, PW-5 and PW-8. Similarly, the presence of PW-
2 is extremely doubtful as his evidence was recorded weeks thereafter.
He was also not found to be present by PW-3 in the second hospital,
though PW-3 deposed otherwise. Therefore, evidence of PW-2 also
ought to have been eschewed. His statement that it is PW-1 and
himself who took the deceased to the second hospital is found to be
incorrect in view of the testimony of PW-8. The courts below ought to
have placed adequate reliance upon the evidence of PW-5 and PW-8,
the doctors, who were admittedly working in the hospital at the
relevant point of time. The fact that the FIR was not registered
immediately after the information was received clearly indicates that it
was ante-dated. This contention is also strengthened by the inquest
report prepared by the police officer of a different police station i.e. by
PW-9.
14. Learned counsel vehemently contended that the trial court has
committed grave error in not noting the fact that no time, date and
adequate particulars were mentioned in the case diary. The object and
rationale behind Section 172 of CrPC coupled with Sections 145, 161
and 165 of the Indian Evidence Act, 1872 (hereinafter referred to as
"Evidence Act") have been clearly overlooked by both the courts. The
motive has not been proved as witnesses have not spoken about it in
their statements under Section 161 of CrPC. It is a case of completely
botched up investigation and, therefore, the appellant deserves
acquittal.
SUBMISSION OF THE RESPONDENT
15. Learned counsel for the State placed substantial reliance upon
the recovery of the vehicle. It is stated that admittedly the vehicle
belonged to the father of the appellant. That is the reason why an
application was filed seeking its custody, which came to be allowed.
Both the courts have rightly held that the discrepancies are bound to
happen in view of the passage of time from the date of incident till the
deposition is recorded in the Court. PW-2 and PW-3 did not have any
ulterior motive or reason to implicate the appellant. PW-3's statement
has been recorded at the earliest. There is nothing wrong in the inquest
report submitted by PW-9. As there is no perversity, appreciation by
both the courts of the evidence available on record for coming to their
conclusion does not warrant any interference.
DISCUSSION
50
-----------------------------------------------------------------------------------------------------------------------------------------------------------
16. Before considering the factual submissions of both sides, we

shall first deal with the position of law which is relevant for deciding the
appeal.
Investigation and the Role of Investigating Officer
17. An investigation of a crime is a lawful search of men and
materials relevant in reconstructing and recreating the circumstances of
an offence said to have been committed. With the evidence in
possession, an Investigating Officer shall travel back in time and,
therefore tick off the time zone to reach the exact time and date of the
occurrence of the incident under investigation. The goal of investigation
is to determine the truth which would help the Investigating Officer to
form a correct opinion on the culpability of the named accused or
suspect. Once such an opinion is formed on a fair assessment of the
evidence collected in the investigation, the role of the court comes into
play when the evidence i.e. oral, documentary, circumstantial,
scientific, electronic, etc. is presented for and on behalf of the
prosecution . In its journey towards determining the truth, a court shall
play an active role while acknowledging the respective roles meant to
be played by the prosecution and the defence. During the entire play,
the rules of evidence ought to be honoured, sprinkled with the element
of fairness through due procedure. Adequate opportunities would have
to be given to challenge every assumption. Administration of criminal
justice lies in determining the guilt of the accused beyond reasonable
doubt. The power of the State to prosecute an accused commences with
investigation, collection of evidence and presentation before the Court
for acceptance.
18. The investigating agency, the prosecutor and the defence are
expected to lend ample assistance to the court in order to decipher the
truth . As the investigating agency is supposed to investigate a crime,
its primary duty is to find out the plausible offender through the
materials collected. It may or may not be possible for the said agency
to collect every material, but it has to form its opinion with the
available material. There is no need for such an agency to fix someone
as an accused at any cost. It is ultimately for the court to decide who
the culprit is. Arvind Kumar @ Nemichand v. State of Rajasthan,
(2021) 11 SCR 237,
"Fair. Defective. Colourable Investigation
40. An Investigating Officer being a public servant is
expected to conduct the investigation fairly. While doing so.
he is expected to look for materials available for coming to a
correct conclusion. He is concerned with the offense as
against an offender, It is the offense that he investigates.
Whenever a homicide happens, an investigating officer is expected
to cover all the aspects and, in the process. shall alwavs keep in
51
-----------------------------------------------------------------------------------------------------------------------------------------------------------
mind as to whether the offence would come under Section 299 !PC
sans Section 300 !PC. In other words, it is his primary duty to satisfy
that a case would fall under culpable homicide not amounting to
murder and then a murder. When there are adequate materials
available, he shall not be overzealous in preparing a case for an
offense punishable under Section 302 !PC. We believe that a
pliable change is required in the mind of the Investigating
Officer, After au. such an officer is an officer of the court also
and his duty is to find out the truth and help the court in
coming to the correct conclusion. He does not know sides.
either of the victim or the accused but shall only be guided by
law and be an epitome of fairness in his investigation.
41, There is a subtle difference between a defectiye
investigation. and one brought forth by a calculated and
deliberate action or inaction. A defective investigation per se
would not enure to the benefit of the accused. unless it goes
into the root of the yery case of the prosecution being
fundamental in nature. While dealing with a defective
investigation. a court of law is expected to sift the evidence
available and find out the truth on the principle that every
case jnyolyes a journey towards truth. There shall not be any
pedantic approach either by the prosecution or by the court as
a case involves an element of law rather than morality.
XXX XXX XXX
44. We would only reiterate the aforesaid principle qua a fair

investigation through the following judgment of Kumar v. State,
c2018) 7 sec 536:
"27. The action of investigating authority in pursuing the case
in the manner in which they have done must be rebuked. The
High Court on this aspect, correctly notices that the police
authorities have botched up the arrest for reasons best known to
them. Although we are aware of the ratio laid down in Parbhu v.
King Emperor [Parbhu v. King Emperor, AIR 1944 PC 73], wherein
the Court had ruled that irregularity and illegality of arrest would
not affect the culpability of the offence if the same is proved by
cogent evidence, yet in this case at hand, such irregularity should
be shown deference as the investigating authorities are
responsible for suppression of facts.
The criminal justice must be aboye reproach. Jt is
28.
irrelevant whether the falsity lie in the statement of
witnesses or the guilt of the accused. The investigative
authority has a responsibility to investigate in a fair manner
and elicit truth, At the cost of repetition. I must remind the
52
-----------------------------------------------------------------------------------------------------------------------------------------------------------
authorities concerned to take up the investigation in a

neutral manner. without having regard to the ultimate
result. In this case at hand, we cannot close our eyes to what has
happened; regardless of guilt or the asserted persuasiveness of
the evidence, the aspect wherein the police has actively connived
to suppress the facts, cannot be ignored or overlooked ."
45. Afair investigation would become a colourable one
when there involves a suppression. Suppressing the motive.
injuries and other existing factors which will have the effect of
modifying or altering the charge would amount to a
perfunctory investigation and. therefore. become a false
narrative, If the courts find that the foundation of the
prosecution case is false and would not conform to the
doctrine of fairness as against a conscious suppression. then
the very case of the prosecution falls to the ground unless
there are unimpeachable evidence to come to a conclusion for
awarding a punishment on a different charge."
(emphasis supplied)
19. Common Cause v. Union of India, (2015) 6 sec 332,
"31. There is a very high degree of responsibility placed on an
investigating agency to ensure that an innocent person is not
subjected to a criminal trial. This responsibility is coupled with an
equally h igh degree of ethical rectitude required of an investigating
officer or an investigating agency to ensure that the investigations
are carried out without any bias and are conducted in all fairness not
only to the accused person but also to the victim of any crime,
whether the victim is an individual or the State. "
Case Diary
Section 17 2 of CrPC
"172. Diary of proceedings in investigation.-(!) Every pol ice
officer making an investigation under this Chapter shall day by day
enter his proceedings in the investigation in a dairy, setting forth the
time at which the information reached him, the time at which he
began and closed his investigation, the place or places visited by
him, and a statement of the circumstances ascertained through his
investigation.
(1-A) The statements of witnesses recorded during the course of
investigation under section 161 shall be inserted in the case diary.
(1-B) The diary referred to in sub-section (1) shall be a volume
and duly paginated.
(2) Any Criminal Court may send for the police diaries of a case
under inquiry or trial in such Court, and may use such diaries, not as
evidence in the case, but to aid it in such inquiry or trial.
53
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(3) Neither the accused nor his agents shall be entitled to call for
such diaries, nor shall he or they be entitled to see them merely
because they are referred to by the Court; but, if they are used by
the police officer who made them to refresh his memory, or if the
Court uses them for the purpose of contradicting such police officer,
the provisions of section 161 or section 145, as the case may be, of
the Indian Evidence Act, 1872 (1 of 1872), shall apply ."
section 145 of the Evidence Act
"145. Cross-examination as to previous statements in
writing.-A witness may be cross-examined as to previous
statements made by him in writing or reduced into writing, and
relevant to matters in question, without such writing being shown to
him, or being proved; but, if it is intended to contradict him by the
writing, his attention must, before the writing can be proved, be
called to those parts of it which are to be used for the purpose of
contradicting him."
section 161 of the Evidence Act
"161. Right of adverse party as to writing used to refresh
memory.- Any writing referred to under the provisions of the two
last preceding sections must be produced and shown to the adverse
party if he requires it; such party may, if he pleases, cross-examine
the witness thereupon."
20. A case diary is maintained by an Investigating Officer during his
investigation for the purpose of entering the day-to-day proceedings of
the investigation. While doing so, the Investigating Officer should
mandatorily record the necessary particulars gathered in the course of
investigation with the relevant date, time and place. Under sub-section
(1-A) and (1-B) of Section 172 of CrPC, the Investigating Officer has to
mention, in his case diary, the statement of witnesses recorded during
investigation with due pagination. Sub-section (1-A) and (1-B) were
inserted by Act 5 of 2009 with effect from 31/12/2009. The object of
these sub-sections is to facilitate a fair investigation since a statement
made under Section 161 of CrPC is not expected to be signed as
mandated by Section 162 of CrPC. To highlight the importance of
adhering to the requirements of these sub-sections, we rely upon the
Law Commission of India's One Hundred and Fifty Fourth Report
th
(154 on Criminal Procedure Code, 1973, Chapter IX,
)
"7 . After giving our earnest consideration and in view of the fact
that there is unanimity in respect of the need for making substantial
changes in the law, we propose that there should be changes on the
following lines:
...The signature of the witness on the statement thus recorded
need not be obtained. But, if the witness so examined desires a copy
54
-----------------------------------------------------------------------------------------------------------------------------------------------------------
of such statement so recorded shall be handed over to him under

acknowledgement. To reflect the shift in emphasis. a
corresponding amendment to Section 172 should also be
made to the effect that the Investigating Officer maintaining
the case diary should mention about the statement of the
circumstances thus ascertained. and also attach to the diary
for each day. copies of the statement of facts thus recorded
under Section 161 CrPC. Neither the accused nor his agent
shall be entitled to can for such diaries which can be put to a
limited use as provided under Section 172 CrPC. Under the
existing provisions of the Code. the preparation of the earliest
record of the statement of witness is left in the hands of
Inyestjgatjng Officer and as the mode of recording as proyjded
in section 162 does not ensure the accuracy of the record (It
is well known that many good cases are spoiled by insidious
incorrect entries at the instance of the accused and it is also
well known that many innocent persons are sent up along
with the guilty at the instance of informant's party} .... "
(emphasis supplied)
21. In furtherance of the above suggestion, the Law Commission of
India accordingly provided a draft amendment to Section 172 of CrPC
for the consideration of the Parliament,
" ... On the above mentioned lines, the relevant Sections can be
amended as follows:
xxxx
172(1) Every police officer making an investigation under this
chapter shall day by day enter his proceedings in the investigation in
a diary, setting forth the time at which the information reached him,
the time at which he began and closed his investigation, the place or
places visited by him and a statement if the circumstances
ascertained through his investigation; and also attach to the diary
for each day copies of statement of facts. if any. recorded
under section 161 in respect of the person or persons whose
examination was completed that day,
(2) Any criminal Court may send for the police diaries of a case
under inquiry or trial in such court, and may use such diaries, not as
evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for
such diaries, nor shall he or they be entitled to see them merely
because they are referred (to) by this Court."
(emphasis supplied)
22. While it is the responsibility and duty of the Investigating Officer
to make a due recording in his case diary, there is no corresponding
55
-----------------------------------------------------------------------------------------------------------------------------------------------------------
right under subsection (3) of Section 172 of CrPC for accused to seek
production of such diaries, or to peruse them, except in a case where
they are used by a police officer maintaining them to refresh his
memory, or in a case where the court uses them for the purpose of
contradicting the police officer. In such a case, the provision of Section
145 or Section 161, as the case may be, of the Evidence Act, shall
apply.
23. Law is quite settled that an improper maintenance of a case
diary by the Investigating Officer will not enure to the benefit of the
accused. Prejudice has to be shown and proved by the accused despite
non-compliance of Section 172 of CrPC in a given case. However, this
does not take away the mandatory duty of the police officer to maintain
it properly. As the court is the guardian of truth, it is the duty of the
Investigating Officer to satisfy the court when it seeks to contradict
him. The right of the accused is, therefore, very restrictive and limited.
Bhagwant Singh v. Commissioner of Police, (1983) 3 sec 344,
"17. The other inference which disturbs us is that the entries in
the police case diary (set forth in the annexure to the counter-
affidavit on the record) do not appear to have been entered with the
scrupulous completeness and efficiency which the law requires of
such a document. The haphazard maintenance of a document of
that status not only does no credit to those responsible for
maintaining it but defeats the very purpose for which it is
required to be maintained. we think it to be of the utmost
importance that the entries in a police case diary should be
made with promptness. in sufficient detail. mentioning all
significant facts. in careful chronological order and with
complete objectivity."
(emphasis supplied)
24. Baleshwar Manda/ v. State of Bihar, (1997) 7 sec 219,
"5. Under Section 172 CrPC read with Rule 164 of Bihar
Police Manual dealing with the investigation. an Investigating
Officer investigating a crime is under obligation to record all
the day-to-day proceedings and information in his case diary.
and also record the time at which the information was
received and the place visited by him. besides the preparation
of site plan and other documents. The Investigating Officer is
also required to send bloodstained clothes and earth seized
from the place of occurrence for chemical examination. Failure
on the part of the Investigating Officer to comply with the
provisions of section 172 CrPC is a serious lapse on his part
resulting in diminishing the yalue and credibility of his
investigation. In this case the Investigating Officer neither entered
the time of recording of the statements of the witnesses in the diary
56
-----------------------------------------------------------------------------------------------------------------------------------------------------------
nor did he send the bloodstained clothes and earth seized from the
place of occurrence for examination by a serologist. The High Court
also adversely commented upon the lapses on the part of the
Investigating Officer in not complying with the provisions of the
Code of Criminal Procedure. We. therefore. take it that. in fact.
there was serious lapse on the part of the Investigation
Officer in not observing the mandate of Section 172 CrPC
while iovestjgatjng the case which has ajyen rjse to this
appeal. But the question that arises for consideration is. has
any prejudice been caused to the accused in the trial by non-
observance of rules by the Investigating Officer? The evidence
on record before the Sessions Court and the appellate court does not
show that due to the lapses on the part of the Investigating Officer
in not sending the bloodstained clothes and earth seized from the
place of occurrence for chemical examination and further not noting
down the time of recording the statement of the witnesses in the
diary has resulted in any prejudice to the defence of the accused . In
the present case, the place of occurrence and the identity of the
deceased are not disputed. Further, the testimony of the
eyewitnesses which is consistent and does not suffer from infirmity,
was believed by both the courts below. Once the eyewitnesses are
believed and the courts come to the conclusion that the
testimony of the eyewitnesses is trustworthy. the lapse on the
part of the Inyestjqatjna Officer io not observing the
provisions of section 172 CrPC unless some prejudice is
shown to have been caused to the accused. will not affect the
finding of guilt recorded by the Court. Neither before the High
Court nor before this Court, it was pointed out in what manner the
accused were prejudiced by non-observance of the provisions of
Section 172 CrPC and the rules framed in this regard . We are,
therefore, of opinion that judgments of the courts below do not
suffer on account of omission on the part of the Investigating Officer
in not sending the earth seized from the place of occurrence for
chemical examination or in not entering the time of recording of the
statements of witnesses in the diary."
(emphasis supplied)
25. Manoj v. State of Madhya Pradesh, (2023) 2 sec 353,
"203. The scheme of the CrPC under Chapter XII (Information to
Police and Powers to Investigate) is clear - the police have the
power to investigate freely and fairly; in the course of which, it is
mandatory to maintain a diary where the day-to-day proceedings are
to be recorded with specific mention of time of events, places
visited, departure and reporting back, statements recorded, etc.
While the criminal court is empowered to summon these diaries
57
-----------------------------------------------------------------------------------------------------------------------------------------------------------
under Section 172(2) for the purpose of inquiry or trial (and not as
evidence), Section 173(3) makes it clear that the accused cannot
claim any right to peruse them, unless the police themselves, rely on
it (to refresh their memory) or if the court uses it for contradicting
the testimony of the police officers. [Mukund Lal v. Union of India,
1989 Supp (1) sec 622 : 1989 sec (Cri) 606; Malkiat Singh v.
State of Punjab, (1991) 4 sec 341 : 1991 sec (Cri) 976]
204. In Manu Sharma [Manu Sharma v. State (NCT of Delhi),
(2010) 6 sec 1 : (2010) 2 sec (Cri) 1385], in the context of police
diaries, this Court noted that "[t]he purpose and the object seems to
be quite clear that there should be fairness in investigation,
transparency and a record should be maintained to ensure a proper
investigation". This object is rendered entirely meaningless if
the police fail to maintain the police diary accurately. Failure
to meticulously note down the steps taken during
investigation. and the resulting lack of transparency.
undermines the accused's right to fair investigation; it is up to
the trial court that must take an active role in scrutinising the
record extensively. rather than accept the prosecution side
willingly. so as to bare such hidden or concealed actions taken
during the course of investigation. [Role of the courts in a
criminal trial has been discussed in Zahira Habibul/a H. Sheikh v.
State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999.]"
(emphasis supplied)
26. When a police officer uses case diary for refreshing his memory,
an accused automatically gets a right to peruse that part of the prior
statement as recorded in the police officer's diary by taking recourse to
Section 145 or Section 161, as the case may be, of the Evidence Act.
27. Section 172(3) of CrPC makes a specific reference to Section 145
and Section 161 of the Evidence Act. Therefore, whenever a case is
made out either under Section 145 or under Section 161 of the
Evidence Act, the benefit conferred thereunder along with the benefit of
Section 172(3) of CrPC has to be extended to an accused. Thus, the
accused has a right to cross-examine a police officer as to the recording
made in the case diary whenever the police officer uses it to refresh his
memory. Though Section 161 of the Evidence Act does not restrict itself
to a case of refreshing memory by perusing a case diary alone, there is
no exclusion for doing so. Similarly, in a case where the court uses a
case diary for the purpose of contradicting a police officer, then an
accused is entitled to peruse the said statement so recorded which is
relevant, and cross-examine the police officer on that count. What is
relevant in such a case is the process of using it for the purpose of
contradiction and not the conclusion. To make the position clear,
though Section 145 read with Section 161 of the Evidence Act deals
58
-----------------------------------------------------------------------------------------------------------------------------------------------------------
with the right of a party including an accused, such a right is limited

and restrictive when it is applied to Section 172 of CrPC. Suffice it is to
state, that the said right cannot be declined when the author of a case
diary uses it to refresh his memory or the court uses it for the purpose
of contradiction. Therefore, we have no hesitation in holding that
Section 145 and Section 161 of the Evidence Act on the one hand and
Section 172(3) of CrPC on the other are to be read in consonance with
each other, subject to the limited right conferred under sub-section (3)
of Section 172 of CrPC. Ba/akram v. State of Uttarakhand, (2017) 7
sec 668,
"9. The aforementioned provisions are to be read conjointly
and homogenously. It is evident from sub-section C2l of
Section 172 CrPC, that the trial court has unfettered power to
call for and examine the entries in the police diaries
maintained by the investigating officer. This is a very
important safeguard. The legislature has reposed complete
trust in the Court which is conducting the inquiry or the trial.
If there is any inconsistency or contradiction arising in the
evidence, the Court can use the entries made in the diaries for
the purposes of contradicting the police officer as provided in
sub-section C3l of section 172 CrPC. It cannot be denied that
the Court trying the case is the best guardian of interest of
justice. Under sub-section (2) the criminal court may send for
diaries and may use them not as evidence, but to aid it in an inquiry
or trial. The information which the Court may get from the
entries in such diaries usually will be utilised as foundation for
questions to be put to the police witness and the court may, if
necessary in its discretion use the entries to contradict the
poljce officer, who made them. But the entries in the pol ice
diary are neither substantive nor corroborative evidence, and
that they cannot be used against any other witness than
against the police officer that too for the limited extent
indicated above.
10. Coming to the use of police diary by the accused, sub-section
(3) of Section 172 clearly lays down that neither the accused nor his
agents shall be entitled to call for such diaries nor he or they may be
entitled to see them merely because they are referred to by the
court . But. in case the police officer uses the entries in the
diaries to refresh his memory or if the Court uses them for the
purpose of contradicting such police officer, then the
provisions of sections 145 and 161. as the case may be, of the
Evidence Act would apply. Section 145 of the Evidence Act
provides for cross-examination of a witness as to the previous
statements made by him in writing or reduced into writing
59
-----------------------------------------------------------------------------------------------------------------------------------------------------------
and if it was intended to contradict him in writing. his

attention must be called to those portions which are to be
used for the purpose of contradiction. section 161 deals with
the adverse party's right as to the writing used to refresh
memory, It can. therefore. be seen that. the right of the
accused to cross-examine the police officer with reference to
the entries in the police diary is very much limited in extent
and even that limited scope arises only when the Court uses
the entries to contradict the police officer or when the police
officer uses it for refreshing his memory.
11. In other words. in case if the Court does not use such
entries for the purpose of contradicting the police officer or if
the police officer does not use the same for refreshing his
memory. then the question of the accused getting any right to
use entries even to that limited extent does not arise. The
accused persons cannot force the police officer to refresh his
memory during his examination in the Court by referring to
the entries in the police diary.
12. Section 145 of the Evidence Act consists of two limbs. It is
provided in the first limb of Section 145 that a witness may be cross
-examined as to the previous statements made by him without such
writing being shown to him . But the second limb provides that, if it
is intended to contradict him by the writing, his attention must
before writing can be proved, be called to those parts of it which are
to be used for the purpose of contradicting him. Sections 155(3) and
145 of the Evidence Act deal with the different aspects of the same
matter and should, therefore, be read together.
13. Be that as it may, as mentioned supra, right of the accused
to cross-examine the police officer with reference to the
entries in the police diary is very much limited in extent and
even that limited scope arises only when the court uses such
entries to contradict the police officer or when the police
officer uses it for refreshing his memory and that again is
subject to the proyisjons of sections 145 and 161 of the
Evidence Act. Thus. a witness may be cross-examined as to his
previous statements made by him as contemplated under
section 145 of the Evidence Act if such previous statements
are brought on record. in accordance with law. before the
Court and if the contingencies as contemplated under Section
172(3} CrPC are fulfilled. Section 145 of the Evidence Act does
not either extend or control the provisions of Section 172
CrPC. We may hasten to add here itself that there is no scope
in Section 172 CrPC to enable the Court. the prosecution or
the accused to use the police diary for the purpose of
60
-----------------------------------------------------------------------------------------------------------------------------------------------------------
contradicting any witness other than the police officer who

made it."
(emphasis supplied)
First Information Report vis-a-vis Case Diary
section 154 of CrPC
"154. Information in cognizable cases.-(1) Every information
relating to the commission of a cognizable offence, if given orally to
an officer in charge of a police station, shall be reduced to writing by
him or under his direction, and be read over to the informant; and
every such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it, and the
substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this
behalf... "
28. The mandate of Section 154 of CrPC implies that every
information disclosing commission of a cognizable offence shall be
entered in a book to be kept by the officer in charge of the police
station in such form as the State Government may prescribe. In La/ita
Kumari v. Government of Uttar Pradesh, (2014) 2 sec 1, the
Constitution Bench of this Court while answering the question as to
whether the information disclosing commission of a cognizable offence
shall first be entered into the General Diary or in a book kept by the
Officer in charge of Police Station which in common parlance is referred
as First Information Report has critically analyzed the interplay between
Section 154 of CrPC and Section 44 of the Police Act, 1861. This Court
also had occasion to analyze the legislative history of CrPC 1861, CrPC
1973 and the Police Act, 1861 to answer the aforesaid question,
whereby it was held that an Information disclosing commission of a
cognizable offence shall first be entered in a book kept by the officer in
charge of police station and not in the General Diary. Therefore, it is
amply clear that a General Diary entry cannot precede the registration
of FIR, except in cases where preliminary inquiry is needed. While an
FIR is to be registered on an information disclosing the commission of a
cognizable offence, so also a recording is thereafter required to be
made in the case diary. Lalita Kumari (Supra),
"57. It is contented by the learned ASG appearing for the
State of Chhattisgarh that the recording of first information
under section 154 in the "book" is subsequent to the entry in
the General Diary/Station Diary/Daily Diary. which is
maintained in the police station. Therefore. according to the
learned ASG. first information is a document at the earliest in
the General Diary. then if any preliminary inquiry is needed
the police officer may conduct the same and thereafter the
information will be registered as FIR. This interpretation is
61
-----------------------------------------------------------------------------------------------------------------------------------------------------------
wholly unfounded. The first information report is in fact the

"information" that is received first in point of time. which is
either given in writing or is reduced to writing. It is not the
"substance" of it. which is to be entered in the diary
prescribed by the State Government. The term "General
Diary" {also called as "Station Diary" or "Daily Diary" in some
States) is maintained not under Section 154 of the Code but
under the provisions of Section 44 of the Police Act. 1861 in
the states to which it applies. or under the respective
provisions of the Police Act{s) applicable to a state or under
the Police Manual of a State. as the case may be.
58. Section 44 of the Police Act, 1861 is reproduced below:
"44. Police officers to keep diary.-It shall be the duty of
every officer in charge of a police station to keep a General Diary
in such form as shall, from time to time, be prescribed by the
State Government and to record therein all complaints and
charges preferred, the names of all persons arrested, the names
of the complainants, the offences charged against them, the
weapons or property that shall have been taken from their
possession or otherwise, and the names of the witnesses who
shall have been examined.
The Magistrate of the district shall be at liberty to call for and
inspect such diary."
59. It is pertinent to note that during the year 1861, when the
aforesaid Police Act, 1861 was passed, the Code of Criminal
Procedure, 1861 was also passed. Section 139 of that Code dealt
with registration of FIR and this section has also referred to the word
"diary", as can be seen from the language of this section, as
reproduced below:
"139. Complaint, etc., to be in writing.-Every complaint or
information preferred to an officer in charge of a police station,
shall be reduced into writing, and the substance thereof shall be
entered in a diary to be kept by such officer, in such form as shall
be prescribed by the local Government."
(emphasis supplied)
Thus. the Police Act. 1861 and the Code of Criminal
Procedure, 1861. both of which were passed in the same year,
used the same word "diary".
60. However, in the year 1872, a new Code came to be passed
which was called the Code of Criminal Procedure, 1872. Section 112
of the Code dealt with the issue of registration of FIR and is
reproduced below:
"112. Complaint to police to be in writing.-Every
62
-----------------------------------------------------------------------------------------------------------------------------------------------------------
complaint preferred to an officer in charge of a police station shall

be reduced into writing, and shall be signed, sealed, or marked by
the person making it, and the substance thereof shall be entered
in a book to be kept by such officer in the form prescribed by the
local Government."
It is, thus, clear that in the Code of Criminal Procedure,
1872. a departure was made and the word "book" was used in
place of "diary". The word "book" clearly referred to the FIR
book to be maintained under the Code for the registration of
FIRs.
61. The question that whether the FIR is to be recorded in the FIR
book or in the General Diary, is no more res integra. This issue has
already been decided authoritatively by this Court.
62. In Madhu Bala v. Suresh Kumar [Madhu Bala v. Suresh
Kumar, (1997) 8 SCC 476 : 1998 SCC (Cri) 111], this Court has
held that FIR must be registered in the FIR register which
shall be a book consisting of 200 pages. It is true that the
substance of the information is also to be mentioned in the
Daily Diary (or the General Diary). But, the basic requirement
is to register the FIR in the FIR book or register. Even in
Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) sec
335 : 1992 sec (Cri) 426], this Court held that FIR has to be
entered in a book in a form which is commonly called the first
information report.
63. It is thus clear that registration of FIR is to be done in a
book called FIR book or FIR register. Of course. in addition.
the gist of the FIR or the substance of the FIR may also be
mentioned simultaneously in the General Diary as mandated in
the respective Police Act or Rules. as the case may be. under
the relevant state provisions.
64. The General Diary is a record of all important
transactions/events taking place in a police station, including
departure and arrival of police staff, handing over or taking over of
charge, arrest of a person, details of law and order duties, visit of
senior officers, etc. It is in this context that gist or substance of each
FIR being registered in the police station is also mentioned in the
General Diary since registration of FIR also happens to be a very
important event in the police station. Since General Diary is a record
that is maintained chronologically on day-to-day basis (on each day,
starting with new number 1), the General Diary entry reference is
also mentioned simultaneously in the FIR book, while FIR number is
mentioned in the General Diary entry since both of these are
prepared simultaneously.
65. It is relevant to point out that FIR book is maintained with its
63
-----------------------------------------------------------------------------------------------------------------------------------------------------------
number given on an annual basis . This means that each FIR has a
unique annual number given to it. This is on similar lines as the case
numbers given in courts. Due to this reason. it is possible to
keep a strict control and track over the registration of FIRs by
the supervisory police officers and by the courts. wherever
necessary. Copy of each FIR is sent to the superior officers
and to the Judicial Magistrate concerned.
66. On the other hand, General Diary contains a huge number of
other details of the proceedings of each day. Copy of General Diary is
not sent to the Judicial Magistrate having jurisdiction over the pol ice
station, though its copy is sent to a superior police officer. Thus. it
is not possible to keep strict control of each and every FIR
recorded in the General Diary by the superior police officers
and/or the court in view of enormous amount of other details
mentioned therein and the numbers changing every day.
67. The signature of the complainant is obtained in the FIR
book as and when the complaint is given to the police station,
On the other hand. there is no such requirement of obtaining
signature of the complainant in the General Diary. Moreover.
at times. the complaint given may consist of large number of
pages. in which case it is only the gist of the complaint which
is to be recorded in the General Diary and not the full
complaint. This does not fit in with the suggestion that what
is recorded in the General Diary should be considered to be
the fulfilment/compliance with the requirement of section
154 of registration of FIR. In fact. the usual practice is to
record the complete complaint in the FIR book (or annex it
with the FIR form} but record only about one or two
paragraphs (gist of the information} in the General Diary.
XXX XXX XXX
70. If at au. there is any inconsistency in the provisions of
section 154 of the Code and section 44 of the Police Act.
1861. with regard to the fact as to whether the FIR is to be
registered in the FIR book or in the General Diary. the
provisions of section 154 of the Code wm prevail and the
provisions of section 44 of the Police Act. 1861 Cor similar
provisions of the respective corresponding Police Act or Rules
in other respective states} shall be void to the extent of the
repugnancy. Thus. FIR is to be recorded in the FIR book. as
mandated under Section 154 of the Code. and it is not correct
to state that information will be first recorded in the General
Diary and only after preliminary inquiry. if required. the
information will be registered as FIR.
XXX XXX XXX
64
-----------------------------------------------------------------------------------------------------------------------------------------------------------
72. Jt is thus unequiyocauy clear that registration of FIR is

mandatory and also that it is to be recorded in the FIR book
by giving a unique annual number to each FIR to enable strict
tracking of each and every registered FIR by the superior
police officers as well as by the competent court to which
copies of each FIR are required to be sent.
XXX XXX XXX
97. The Code contemplates two kinds of FIRs the duly signed
FIR under Section 154(1) is by the informant to the officer
concerned at the police station. The second kind of FIR could be
which is registered by the police itself on any information received or
other than by way of an informant [Section 157(1)] and even this
information has to be duly recorded and the copy should be sent to
the Magistrate forthwith. The registration of FIR either on the
basis of the information furnished by the informant under
Section 154<1) of the Code or otherwise under Section 157<1)
of the Code is obligatory. The obligation to register FIR has
inherent advantages:
97. 1. (a) It is the first step to "access to justice" for a victim.
97.2. (b) It upholds the "rule of law" inasmuch as the ordinary
person brings forth the commission of a cognizable crime in the
knowledge of the State .
97.3. (c) It also facilitates swift investigation and sometimes
even prevention of the crime. In both cases, it only effectuates
the regime of law.
97.4.ld) It leads to less manipulation in criminal cases
and lessens incidents of "antedated" FIR or deliberately
delayed FIR."
(emphasis supplied)
29. Ram Chander v. State of Haryana, (1981) 3 sec 191,
"3.... The court, the prosecution and the defence must work
as a team whose goal is justice, a team whose captain is the
judge. The .Judge, 'like the conductor of a choir, must, by force
of personality, induce his team to work in harmony; subdue
the raucous, encourage the timid, conspire with the young,
flatter and (sic the) old'."
.Justice O. Chinnappa Reddy
Section 165 of the Evidence Act
"165. Judge's power to put questions or order production.-
The Judge may, in order to discover or to obtain proper proof of
relevant facts, ask any question he pleases, in any form, at any time,
of any witness, or of the parties, about any fact relevant or
irrelevant: and mav order the oroduction of anv document or thinq:
65
-----------------------------------------------------------------------------------------------------------------------------------------------------------
and neither the parties nor their agents shall be entitled to make any
objection to any such question or order, nor, without the leave of the
Court, to cross-examine any witness upon any answer given in reply
to any such question:
Provided that the judgment must be based upon facts declared by
this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to
compel any witness to answer any question, or to produce any
document which such witness would be entitled to refuse to answer
or produce under sections 121 to 131, both inclusive, if the question
were asked or the document were called for by the adverse party;
nor shall the Judge ask any question which it would be improper for
any other person to ask under section 148 or 149; nor shall he
dispense with primary evidence of any document, except in the
cases hereinbefore excepted."
30. Section 165 of the Evidence Act speaks of the power of the court
to put questions and order production of documents in the course of
trial. This is a general and omnibus power given to the court when in
search of the truth. Such a power is to be exercised against any witness
before it, both in a civil as well as a criminal case. The object is to
discover adequate proof of a relevant fact and, therefore, for that
purpose, the Judge is authorised and empowered to ask any question of
his choice. When such a power is exercised by the court, there is no
corresponding right that can be extended to a party to cross-examine
any witness on an answer given in reply to a question put forth by it,
except with its leave. Emphasizing upon the importance of Section 165
of the Evidence Act, Sir James Stephen while presenting the report of
the Select Committee, at the time of passing of the Evidence Act
observed,
"It is absolutely necessary that the judge should not only hear
what is put before him by others, but that he should ascertain by his
own inquiries how the facts actually stand. In order to do this, it will
frequently be necessary for him to go into matters which are not
themselves relevant to the matters in issue, but may lead to
something that is, and it is in order to arm judges with express
authority to do this that section 165, which has been so much
objected to, has been framed".
"A judge or Magistrate in India frequently has to perform
duties which in England would be performed by Police Officer
or attorneys. He has to sift out the truth for himself as well as
he can. and with little assistance of a professional kind.
Section 165 is intended to arm the judge with the most
extensive power possible for the purpose of gettina at the
66
-----------------------------------------------------------------------------------------------------------------------------------------------------------
truth, The effect of this section is that. in order to get to the

bottom of the matter before the count, he will be able to look
at and enquire into every fact whatever."
(emphasis supplied)
31. Ram Chander v. State of Haryana, (1981) 3 sec 191,
"O. CHINNAPPA REDDY, J.- What is the true role of a judge
trying a criminal case? Is he to assume the role of a referee in
a football match or an umpire in a cricket match. occasionally
answering. as Pollock and Maitland [Pollock and Maitland :
The History of English Law] point out. the question 'How is
that'. or, is he to. in the words of Lord Denning 'drop the
mantle of a judge and assume the robe of an advocate'? [Jones
v . National Coal Board, [19571 2 All ER 155 : [19571 2 WLR 7601
Is he to be a spectator or a participant at the trial? Is
passivity or activity to mark his attitude? If he desires to
question any of the witnesses. how far can he go? can he put
on the gloves and ' have a go' at the witness who he suspects
is lying or is he to be soft and suaye? These are some of the
questions which we are compelled to ask ourselves in this
appeal on account of the manner in which the Judge who tried
the case put questions to some of the witnesses.
2. The adversary system of trial being what it is. there is an
unfortunate tendency for a judge presiding over a trial to
assume the role of a referee or an umpire and to allow the
trial to develop into a contest between the prosecution and
the defence with the inevitable distortions flowing from
combative and competitive elements entering the trial
procedure. If a criminal court is to be an effective instrument
in dispensing justice. the presiding judge must cease to be a
spectator and a mere recording machine. He must become a
participant in the trial by evincing intelligent active interest by
putting questions to witnesses in order to ascertain the truth.
As one of us had occasion to say in the past:
Every criminal trial is a voyage of discovery in which
truth is the guest. It is the duty of a presiding Judge to
explore every avenue open to him in order to discover the
truth and to advance the cause of justice. For that purpose
he is expressly invested by Section 165 of the Evidence Act
with the right to put questions to witnesses. Indeed the
right given to a Judge is so wide that he may, ask any
question he pleases, in any form, at any time, of any
witness. or of the parties about any fact. relevant or
irrelevant. Section 172<2} of the Code of Criminal Procedure
enables the court to send for the police-diaries in a case
67
-----------------------------------------------------------------------------------------------------------------------------------------------------------
and use them to aid it in the trial. The record of the

proceedings of the Committing Magistrate may also be
perused by the Sessions Judge to further aid him in the
t.d.a!, [Sessions Judge, Ne/lore v. Intha Ramana Reddy ILR 1972
AP 683 : 1972 Cri U 1485]
3. With such wide powers. the court must actively
participate in the trial to elicit the truth and to protect the
weak and the innocent. It must. of course. not assume the
role of a prosecutor in putting questions, The functions of the
counsel. particularly those of the Public Prosecutor. are not to
be usurped by the judge. by descending into the arena. as it
were . Any questions put by the judge must be so as not to frighten,
coerce, confuse or intimidate the witnesses. The danger inherent in a
judge adopting a much too stern an attitude towards witnesses has
been explained by Lord Justice Birkett:
People accustomed to the procedure of the court are likely to
be overawed or frightened, or confused, or distressed when under
the ordeal of prolonged questioning from the presiding judge.
Moreover, when the questioning takes on a sarcastic or ironic tone
as it is apt to do, or when it takes on a hostile note as is
sometimes almost inevitable, the danger is not only that
witnesses will be unable to present the evidence as they may
wish, but the parties may begin to think, quite wrongly it may be,
that the judge is not holding the scales of justice quite eventually .
[Extracted by Lord Denning in supra f.n. 2]
In Jones v. National Coal Board [Jones v. National Coal Board,
[1957] 2 All ER 155 : [1957] 2 WLR 760] Lord Justice Denning
observed:
The Judge's part in all this is to hearken to the evidence, only
himself asking questions of witnesses when it is necessary to clear
up any point that has been overlooked or left obscure; to see that
the advocates behave themselves seemly and keep to the rules
laid down by law; to exclude irrelevancies and d iscourage
repetition; to make sure by wise intervention that he follows the
points that the advocates are making and can assess their worth;
and at the end to make up his mind where the truth lies. If he
goes beyond this, he drops the mantle of the Judge and assumes
the role of an advocate; and the change does not become him
well.
We may go further than Lord Denning and say that it is the
duty of a judge to discover the truth and for that purpose he
may "ask any question. in any form. at any time. of any
witness. or of the parties, about any fact, relevant or
irrelevant" (Section 165 Evidence Act). But this he must do,
68
-----------------------------------------------------------------------------------------------------------------------------------------------------------
without unduly trespassing upon the functions of the Public

Prosecutor and the defence Counsel. without any hint of
partisanship and without appearing to frighten or bully
witnesses. He must take the prosecution and the defence with
him. The court. the prosecution and the defence must work as
a team whose goal is justice. a team whose captain is the
judge. The Judge. 'like the conductor of a choir. must. by force
of personality. induce his team to work in harmony; subdue
the raucous. encourage the timid. conspire with the young.
flatter and <sic the} old'."
(emphasis supplied)
ON FACTS
32. We have given our consideration to the circumstances, motive,
role of the accused and the volition of the prosecution to bring home
the guilt of the appellant primarily in the form of : (a) Dying
Declaration, (b) Eye witnesses, (c) Recovery and (d) Alleged arrest of
the appellant nearer to the scene of the offence.
33. The presence of PW-1 before PW-5 is extremely doubtful. His
presence was not spoken to at all by PW-5. The evidence of PW-1 is
quite unnatural as he has neither spoken about the motive in his
statement recorded under Section 161 of CrPC, nor about the so-called
dying declaration which was not even witnessed by PW-5. PW-5 has
clearly stated that the deceased was in a very serious condition, blood
was oozing out and, therefore, he could not give adequate treatment.
The deceased was immediately referred to the second hospital. There
was no necessity for PW-1 to dictate the complaint to one Mr. Inder
Singh who curiously has not been examined by the prosecution . In any
case, there was no need for PW-11 to wait for PW-1 to come to him for
registration of FIR, which he was mandated to do so, as soon as he
received the report from the hospital. The testimony of PW-1 is also
contradictory to PW-3 and PW-8.
34. On the similar line, we do not wish to rely upon the evidence of
PW-2 and PW-3. PW-2 admittedly was not examined by PW-11 for over
2 weeks, for which no explanation is forthcoming. This witness also
states that he was not a friend of the deceased and, therefore, his
presence at the place of occurrence creates a serious doubt as to how
he happened to accompany the deceased to the picnic spot. PW-3,
though accompanied the deceased, was not present thereafter, as
deposed by PW-5 and did not admit the deceased to the second
hospital as deposed by PW-8. On the contrary, the evidence of PW-3 is
that it is PW-1 and himself who admitted the deceased. Furthermore,
even his presence thereafter was not noticed by PW-5 .
35. Though we rely upon the evidence of PW-5 to a certain extent,
69
-----------------------------------------------------------------------------------------------------------------------------------------------------------
the emergency medical register was not completely filled up by him.

Nobody knows the reason as to why he partially filled up the register
and the remaining part was filled by Dr. B.V. Sharma, who was not
examined by the prosecution. By placing reliance upon his testimony
partly, we would only come to the conclusion that his evidence goes
against the prosecution version on two counts, namely, the presence of
any other witness and the condition of the deceased.
36. The prosecution has not chosen to examine the driver of the
vehicle i.e the tempo in which the deceased was taken to the hospital.
Even PW-5 has stated that the blood was oozing out from the body of
the deceased. This is another contradiction in the statement of PW-2
and PW-3 in this regard. PW-8 in his evidence has stated that the
deceased was brought by another brother of the deceased. Even this
witness has not been examined for the reason known to the
prosecution.
37. PW-9 is an important witness being a police officer hailing from
a different jurisdiction. It is very curious to know that he was the
author of the inquest report after the investigation was taken up by PW
-11. Despite this being very strange, no plausible explanation was
forthcoming from him. Though PW-11 was trying to say that at times
due to the instructions from the higher officers, it is done so, when an
offence is committed an Investigating Officer is duty bound to take up
the investigation and complete it. After taking up the investigation he
thereafter cannot delegate it, except for justifiable reasons. This lends
credence to the case projected by the defence that the interpolations
and missing pages in the case diary clearly indicate that the FIR was
ante-dated . Perhaps that is the reason why the FIR reached the
jurisdictional magistrate belatedly and also the examination of the
witnesses including PW-2 under section 161 of CrPC was done days
after the occurrence.
38. PW-6 and PW-7 are not natural witnesses. It is totally
unbelievable for PW-6 to reach the place of occurrence out of
inquisitiveness. There is no need for him to be in that very place. The
arrest of the accused at the instance of PW-7 is yet another instance of
the prosecution trying to make out a case. It is incomprehensible that
the appellant would be present at the place of the occurrence when he
is attempting to flee . Similar logic goes to the recovery of the knife . If
PW-11 is stated to have made an inspection and drawn the sketch, he
would have very well found the knife at a nearby place. It is nobody's
case that it was hidden, on the contrary, it was found in an open place.
39. From the aforesaid discussion, we have no doubt that the date,
time and place of occurrence could have been different. The trial court
strangely placed the onus on the appellant even with respect to the
corrections made in the case diary along with the missing pages . On
70
-----------------------------------------------------------------------------------------------------------------------------------------------------------
perusal of the case diary, we find that at several places such corrections
have been made, while some pages were even missing. A clear attempt
is made to correct the dates. Such corrections actually were put against
the appellant while they indeed helped the case of the prosecution. The
finding of the trial court in this regard is neither logical nor reasonable.
Even on the question of motive, there is absolutely no material as
witnesses did not speak about the same in their statements recorded
under Section 161 of CrPC. Mere recovery of a motorcycle per se will
not prove the case of the prosecution especially when it has not been
proved as to how it was recovered. The evidence of PW-13 clearly
shows that no date, time and proper recording have been made in the
case diary . When the trial court perused the case diary for the purpose
of contradicting the statement of a police officer, it ought not to have
fixed the onus on the appellant. It has failed to discharge its duty
enshrined under Section 172(3) of CrPC read with Section 145 or
Section 161, as the case may be, of the Evidence Act. To be noted, it
was brought on a request made by the appellant and the court was
using it for the purpose of contradiction.
40. On a perusal of the impugned judgment and that of the trial
court in convicting the appellant, we find that the aspects discussed by
us have not been looked into in a proper perspective. The appellant has
certainly made out a case for acquittal. Accordingly, the conviction
rendered by the High Court, confirming that of the trial court stands set
aside. The appellant is acquitted of all the charges.
41. The appeal is allowed. The appellant was granted bail vide Order
of this Court dated 06.04.2015. Hence, bail bonds stand discharged .
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ Judgment/ act/ rule/
regulation/ circular/ notification is being circulated on the condition and understanding that the publ i sher would n ot be
liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or adv ice
rendered or accepted on the basis of this casen ote/ headnote/ j udgment/ act/ rule/ regulation / circular/ notification. All
disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of
this text must be verified from the original source.

Special Judge Human Rights New Delhi 04.03.2024 M 54 With Annxs

Uploaded by

Copyright:

Available Formats

You might also like

Special Judge Human Rights New Delhi 04.03.2024 M 54 With Annxs

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Special Judge Human Rights New Delhi 04.03.2024 M 54 With Annxs

Uploaded by

Copyright:

Available Formats

M-54/2021

Sarvadaman Singh Oberoi v. UOI & Ors.

Present: Petitioner in person.

Victim report of facts by next friend under Sections 30 &

(Dr. Hardeep Kaur)

IN THE COURT OF LO. ADDITIONAL DISTRICT & SESSIONS

M. NO. OF 2024 IN M. NO. 54 OF 2021

(FOR APPOINTMENT OF INDEPENDENT PROSECUTOR TO

IN THE MATTER OF:

1. The Union of India through The Secretary, Ministry of Home Affairs,

9. The Secretary, Ministry of Law & Justice, Government of India, 4th

[2 to 8 & 10 being Proforma Respondents, excluded at this stage.]

.......... Defendants 1 & 9/ Proforma Respondents 2 to 8 & 10

VICTIM REPORT OF FACTS BY NEXT FRIEND UNDER

Government by notification shall specify the Public Prosecutor or

ICCPR 14.3 (e) To examine, or have examined, the witnesses against

effective protection against discrimination on any ground such as race,

6. K.C. Sud v. S.C. Gudimani, 1981 ILR 21.02.80 25-45

7. Shailesh Kumar v. State of U.P., 2024 26.02.2024 46-70

GOVT OF NCT OF DELHI and ORS ..... Respondents

$~2 (Special Bench)

GOVT OF NCT OF DELHI AND ORS. ..... Respondents

REVIEW PET. 228/2023 & CM APPL. 44062/2023

1. Petitioner seeks review of Judgment dated 18.07.2023, whereby the

3. Section 31 of the Act reads as under:

“134A. Certificate for appeal to the Supreme Court

8. Article 134 A of the Constitution provides that a High Court passing

“132. Appellate jurisdiction of Supreme Court in appeals from High Courts

XXX XXX XXX”

Neutral Citation Number: 2023:DHC:4946-DB

Judgment reserved on: 26.05.2023

% Judgment delivered on: 18.07.2023

+ W.P.(C) 1851/2021 and C.M. Nos. 5422/2021, 37296/2022,

SARVADAMAN SINGH OBEROI ..... Petitioner

GOVT OF NCT OF DELHI AND ORS ..... Respondent

SATISH CHANDRA SHARMA, C.J.

W.P.(C.) No.1851/2021 Page 1 of 5

Neutral Citation Number: 2023:DHC:4946-DB

I. Issue a writ/order/direction in the nature of quo warranto,

IV. Issue a writ/order/direction in the nature of mandamus or

W.P.(C.) No.1851/2021 Page 2 of 5

Neutral Citation Number: 2023:DHC:4946-DB

W.P.(C.) No.1851/2021 Page 3 of 5

Neutral Citation Number: 2023:DHC:4946-DB

W.P.(C.) No.1851/2021 Page 4 of 5

Neutral Citation Number: 2023:DHC:4946-DB

(SATISH CHANDRA SHARMA)

JULY 18, 2023

W.P.(C.) No.1851/2021 Page 5 of 5

208 THB BOMBAY LAW RBPORTEa [ VOL. XC

MUK.UL DALAL v. UNION OF INDJA*

19881 MUKUL V. UNION (S.C.)- R . .\1.i!)7Q, J. 209

Assistant Fublic Prosecutors under ss. 24 and 25 respectively of the Code of

210 THll BOMBAY LAW REPOUER [ VOL. XC

1988] MUKUJ, v. UNION (s.c.J - R. Misra, ]. 211

212 nm BOMBAY LAW R.l!PORTBR I VOL. XC

There may be instances where a case instituted on a private complaint is really

i988] Mt,;KUL v. UNlON (s.c.)-R. Misra, J. 213

should be accepted. The Remembrancer of Legal Affairs should scrutinise