Full Text
CRIMINAL APPELLATE JURISDICTION
Criminal Writ Petition(st) No.13372 of 2025
Sana Talha Khan alias Sana Sirajuddin Mukadam
1403, Sosiyo Apartment Belverder Hill, Near Mazagaon Garden
Mumbai 400010. … Petitioner
2. Azeem Sirajuddin Mukadam
Flat No.402 Yash Heights, Nesbit Road Mazgaon, Mumbai 400 010. … Respondents.
Mr. M.A. Khan a/w. H.I.
Sirguroh, Ms. Mohsina Khan and
Aasma Shah, Ms. Dipti Mehta
Advocate for the Petitioner.
Ms. Sangita E. Phad APP for the State.
Mr. Prashant Thombre a/w. Mr. Moinuddin Khan
Advocate for the Respondent
No.2.
ORAL JUDGMENT
2. The issue involved in this petition is “about right of the first informant to address the Court orally by opposing the discharge application filed by the Petitioner”. The FIR came to be registered with Byculla Police Station in pursuance to directions given under Section 156 (3) of Cr.P.C.. The charge-sheet came to be filed against the present Petitioner and others. There is an objection taken about respecting the process of law by the Petitioner. That is to say she has not complied with the conditions of anticipatory bail. This is a contentious issue. This needs to be addressed by the trial Court.
3. There is discharge application filed by the Petitioner. The first informant is already permitted by the trial Court to intervene in the proceedings. The first informant wants enlargement of such right and that is why he applied before the trial Magistrate and seeks liberty to oppose the discharge application.
4. The learned Magistrate as per the order dated 22nd January 2025 allowed that application and granted audience to the first informant. The Petitioner being aggrieved by the said order filed this writ petition.
5. The learned Advocate for the Petitioner invited my attention to the observations in the impugned order and according to him the learned Judge has committed an error while applying the correct ratio laid down by the Hon’ble Supreme Court in the case of Rekha Murarka v/s. State of West Bengal 1. He has read the observations for my perusal.
6. In addition to that he relied upon the following two judgments:
(i) State of Goa v/s. Rosario Ferrao[2]
(ii) Kishore Wadhwani v/s. State of Maharashtra[3]
7. Whereas according to learned Advocate for Respondent No.1, no interference is warranted and he relied upon the following two judgments:-
(i) Jagjeet Singh & ors. v/s. Ashish Mishra @ Monu & anr.[4]
(ii) Prakash Sheth v/s. The State of Maharashtra & anr.[5]
8. According to him as per the 2009 amendment the scope on ‘rights to victim’ is widened and he intends to address the trial Court on certain aspects. Whereas, according to learned Advocate for the Petitioner the judgment in case of Jagjeet Singh is on the point of right of audience at the time of hearing of bail application and according to him the observations in Rekha Murarka are not considered in that case.
9. It is true as per old Section 24 of Cr.P.C., 1973 and new Section 18 of B.N.S.S., 2023 there is a provision for appointment of
5 Criminal Revision Application No.60/2022 dt. 6/12/2022. a Public Prosecutor at High Court level, at the District level and the appointment of the Assistant Public Prosecutor is governed as per the provisions of old Section 25 of Cr.P.C., 1973 and new Section 19 of B.N.S.S., 2023. There should be qualification for appointment for 7 years practice as contemplated under old sub-section 7 of Section 24 of Cr.P.C. and new sub-section 7 of Section 18 of B.N.S.S., 2023. Whereas there is also provision for appointment of Special Public Prosecutor as per old sub-section 8 to Section 24 of Cr.P.C. and new sub-section 8 to Section 18 of B.N.S.S., 2023. By way of 2009 amendment proviso to sub-section 8 is inserted in Section 24. The victim is given right to engage an Advocate to assist the prosecution. It is no doubt true that as per 2009 amendment the rights of the victims are enlarged. Even the victim is given independent right to prefer an appeal as per the provisions of old Section 372 proviso of Cr.P.C. and new Section 413 proviso of B.N.S.S., 2023. There is a meaning of the victim given in old Section 2 (wa) of the Cr.P.C. and new 2(1)(y) of B.N.S.S., 2023. The test is ‘one who has suffered any loss or injury.’ In this case the first informant is the person who has set the criminal law into motion.
10. Earlier to 2009 amendment there are also certain provisions in the Code recognizing right of private person to participate. They are included in old Sections 301 and 302 of the Code and new Sections 338 and 339 of B.N.S.S., 2023. So the issue is whether the first informant has got right to argue orally? Judgments quoted by the Petitioner
11. It will be relevant to consider the circumstances in which such right is interpreted in above referred judgments. It is true case of Kishore Wadhwani was decided prior to 2009 amendment. The issue involved was about right to audience to complainant at the stage of hearing of discharge application filed by the accused. It is no doubt true in that case in a trial before Magistrate the first informant was only recognised of the right to assist the public prosecutor through the Counsel. Independent right to address the Court was not recognised.
12. In the case of State of Goa v/s. Rosario Ferrao[6] similar issue is involved but the stage was different. It was an appeal filed by the state against the judgment of acquittal in High Court and the complainant argued for grant of an opportuinity to argue orally as well as to file written arguments. Learned single Judge also considered the observations in case of Rekha Murarka (para 13)and in case of Jagjeet Singh (para no. 19) (supra). Learned single judge refused to recognize independent right to the victim to address the court as such right is not recognized in the statute book (para 19). Judgments quoted by the Complainant
13. In case of Prakash Sheth V/s State of Maharashtra Criminal Revision Application No. 60 of 2002, this Court directed the Magistrate to hear the first informant while hearing discharge
14. It is also true in case of Jagjeet Singh the Hon’ble Supreme Court has recognized the right of the victim to address the Court while hearing of bail application, that is to say at the stage of investigation. The right of victim was held as:- “Substantive, enforceable and facet of human rights. Such rights are independnet, incomparable and are not accessory or auxiliary to those of the State under the Cr.P.C (para 23). Supreme Court observed the victim cannot be asked to wait the commencement of trial for asserting right to participate in the proceedings. Such right was recognized at every stage post occurrence of an offence (para 24).” Consideration
15. It is true Hon’ble Supreme Court in case of Rekha Murarka was dealing with the enlargement of the right by the victim. The prayers made by the victim therein find place in Para No.3.2. When I have read prayers, it includes the role which the public prosecutor is generally playing. Those prayers are reproduced in para no. 2.2. Apart from advancing oral arguments, it includes:- (a) to object to irrelevant questions put to the witnesses (b) to examine witnesses after the learned Prosecutor
(c) to cross examine the defence witnesses.
Depending upon the nature of the prayers, the Hon’ble Supreme Court has not approved those prayers and the scope was limited only to assist the public prosecutor. It is true in Para No.10 the Hon’ble Supreme Court has considered the victimology principle as per 2009 amendment. But it is pertinent to note that the Hon’ble Supreme Court considered the fact that it was a session trial and also considered the expansive prayers made by the victim.
16. There is discussion about insertion of proviso to sub-section 8 to Section 24 of Cr.P.C. The background for insertion of word ‘assist’ is also considered. Prior to approving of the amendment, the words suggested in the Bill were ‘coordinate with the prosection’. Supreme Court considered factors like maintaining the fairness of the trial, work pressure of the Public Prosecutors, recognition of right of appeal to the victim. On one hand, the Court opined victim should not be given right to make oral arguments or examine and cross examine witnesses on other hand, Court also opined victim can route certain questions through Public Prosecutor in he feels that a certain aspect has gone unaddressed in the examination of the witnesses (para 11.4).
17. Supreme Court has put a restraint by observing “in this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case”. Finally Supreme Court confirmed the decision of the High Court and dismissed the petition. Provisions of BNSS
18. It is true in the Code of Criminal Procedure there are certain basic provisions depending upon the nature of trial. That is to say if there is a session case, the provisions are laid down in Cr.P.C. in old Section-225 of Cr.P.C. and new Section 248 of B.N.S.S., 2023 onwards. It talks about conducting the prosecution by Public Prosecutor and it casts a responsibility on prosecutor to open the case by describing the charge. Whereas as per old Section 238 of Cr.P.C. and new Section 261 of B.N.S.S., 2023 of the Cr.P.C. in Chapter-IX it deals with the trial of warrant case by the Magistrate. There is no provision that the prosecution shall be opened up by the Prosecutor.
19. Above are specific provisions but there are certain general provisions which are applicable to all inquiries and trials. It is included in Chapter XXIV of the Code. There are provisions in old Section 301 of the Code and new Section 338 of B.N.S.S., 2023. Sub-section (1) empowers the Public Prosecutor or Assistant Public Prosecutor to appear without written authority. The word ‘may’ is used in sub-section. It says such Prosecutor may conduct the prosecution. However the language is changed when a private person instructs a pleader to prosecute any person. In such eventuality, the legislatures’ have used a word ‘shall’ and the prosecution has to be conducted by such Prosecutor only. The scope of such pleader is clarified. He can (a) act as per the instructions of such Prosecutor and (b) he can file written arguments with the permission of the Court. The provisions do not permit such private pleader to address oral arguments.
20. Whereas the Legislatures as per the provisions of old Section 302 and new Section 339 of B.N.S.S. 2023 of the Code permits conducting a prosecution by any person. That to after obtaining. permission of Magistrate. But he should not be police officer who has taken part in the investigation. The purpose is such police officer is interested in getting conviction. The Legislatures have purposefully kept the investigation and conducting prosecution different.
21. If these two provisions Section 301 and 302 are read together, there is limited role as per Section 301 for a private pleader only to assist the regular Prosecutor and to file written arguments with permission. Whereas as per the provisions of Section 302 of the Code, entire conduct of prosecution is to be done by private pleader. If we go by the wordings of section 301, it is clear the same is applicable to trials before all the criminal courts. Whereas the provisions of section 302 are applicable only to trials before the Magistrate. Limited role is expected when permission is granted under the provisions of section 301 whereas when the permission is granted under section 302, the private pleader will be controlling the prosecution in its entirety. If private person is kept under entire control of the prosecution, there will be greater responsibility on ther Magistrate to ascertain whether the facts are very complicated and whether private person can handle them properly. However in a case before me, the provision which is relevant is Section 301 and not
22. There is a proviso to Sub-section 8 of Section 24 of the Code. This is added by way of 2009 amendment. This was added due to insertion of meaning of ‘victim’ so as to make the relevant provisions on the subject consistent. But here also an advocate appointed by the victim has to play limited role of assisting the prosecution. The prosecutor which is referred in sub-section 8 to section 24 is Special Public Prosecutor. In case of Rekha Murarka, there was an occasion to interpret the meaning of phrase ‘under this sub-section’ It is observed:-- “we do not find that the use of the words ‘ under this sub-section in the proviso to Section 24(8) implies that a victim’s counsel can only be engaged to assist a Special Public Prosecutor. Such an interpretation would go against Section 301(2), which makes the pleader instructed by a private person subject to the directions of the Public Prosecutor or the Assistant Public Prosecutor” (para 10).
23. Similarly, as per old Section 401 of Cr.P.C. and new Section 442 of B.N.S.S., 2023, there is a special provision for hearing the accused and other persons. It finds place in sub-section 2. When the Court has to pass an order to the prejudice of the accused, he needs to be given an opportunity of hearing. It also includes the other person within its purview.
24. So the question is “whether the order passed by the Learned Magistrate permitting the first informant to argue orally can be sustained in the eyes of law”? Law interpreted in all above referred judgments has to be understood considering the circumstances which arose in those matters. So to say in case of Kishore Wadhwani though the issue was involved at the stage of hearing of discharge application, still the law as per amendment of 2009 is not discussed. Whereas in case of Rosario Ferrao, the issue has arisen at the stage of hearing of appeal by the State against judgment of acquittal by the Magistrate. Learned Single Judge has referred the observations in case of Rekha Murarka but not taken into consideration the volley of rights claimed by the victim and claimed in a session trial and not in a trial before the Magistrate. The observations in case of Rekha Murarka has to be understood on the background it was a session trial (containing special provisions) and the concessions sought for was very wide range including right to cross examine. As against this, the issue in case of Jagjit Singh was at the stage of hearing of bail application. There is detail discussion on the topic of ‘Victim’s right to be heard’. Supreme Court considered the ‘UN Ddeclaration of Basic Principles of justice for the Victims of Crime and Abuse of Power, 1985 (para 17). The law in United States of America is also considered (para 18). Law Commission Reports were also considered (para 18). And then the amendments in local law were considered (para 19). Judicial interpretations of 2009 amendment about appellate rights are also considered (para 22). Finally it is concluded victim’s rights are substantive, independent, enforceable and another facet of human rights (para 23).
25. In this case the prayer made by the first informant is to address the Court at the time of discharge application. I am supposed to make comment only by considering that prayer. It is true learned Single Judge of this Court in case of Prakash Sheth was pleased to allow the intervention by the first informant. So the legislatures have recognized the right of the victim by way of filing an appeal. Even the Constitutional Courts have recognised the right of the victim to intervene at the time of bail application. It is also true that the legislatures have incorporated certain provisions in POCSO Act and in SC & ST Act by giving right of audience to the victim. It is no doubt true that there are no specific provision to that effect at the time of hearing of the discharge application which generally occurs after filing of a charge-sheet.
26. If we consider the intention of legislation by recognising the victim/first informant as one of the important stakeholder in the criminal administration system, I feel that the first informant’s right to address the Court while hearing discharge application needs to be recognised.
27. In view of that I do not think that the impugned order requires interference. Right of the first informant to address the Court orally while hearing of discharge application is only considered. While confirming the order, I have considered the fact that this prosecution is lodged as per the order passed under Section 156(3) of the Cr.P.C. Recourse to this section arises only when FIR is not registered by the police at the first instance. The criminal law is set into motion only when first informant has knocked doors of the criminal Courts.
28. In view of that I do not find any interference is warranted. Writ Petition is dismissed. (S.M. MODAK, J.)