Case Note & Summary
The case involved the transfer of two special cases from the Court of the Special Judge, Greater Bombay, to the High Court of Bombay, following a direction from a Constitution Bench of the Supreme Court. The Bombay High Court assigned the cases to Mr. Justice S.N. Khatri. During the hearing, preliminary objections were raised regarding the appointment of a Public Prosecutor and the procedure to be followed in the trial. The Supreme Court clarified that the trial must adhere to the procedure outlined in Chapter XIX-B of the Code of Criminal Procedure, 1973, specifically Sections 244 to 247, which govern trials instituted otherwise than on police reports. The Court emphasized that the trial should resume from the stage where the accused was discharged. Furthermore, the Court ruled that if cognizance of an offence is taken under Section 8(1) of the Criminal Law (Amendment) Act, 1952, the advocate engaged by the complainant would be considered the Public Prosecutor, negating the need for a State-appointed prosecutor. The Court noted that the complainant has the right to choose their advocate for the prosecution. The clarification was deemed necessary to avoid delays in the trial process, and the Court dismissed irrelevant prayers made by the complainant's counsel. The final decision reinforced the procedural requirements and the role of the complainant's advocate in the prosecution process.
Headnote
A) Criminal Procedure - Transfer of Criminal Trial - Procedure for trial after transfer - Code of Criminal Procedure, 1973, Sections 244-247 - The learned Judge must conduct the trial according to the procedure prescribed for cases instituted otherwise than on police report by Magistrate. The trial was to proceed from the stage when the accused was discharged, as clarified by the Supreme Court. Held that the procedure must be strictly followed (Paras 414D-E). B) Criminal Law - Public Prosecutor Appointment - Role of complainant's advocate as Public Prosecutor - Criminal Law (Amendment) Act, 1952, Section 8(3) - If cognizance is taken under Section 8(1), the complainant's advocate is deemed the Public Prosecutor, and there is no need for a State-appointed Public Prosecutor. The complainant has the discretion to choose their advocate for prosecution (Paras 415B-C).
Issue of Consideration
Whether the State is required to appoint a Public Prosecutor for the trial and what procedure should be followed in the trial of the cases transferred to the High Court.
Final Decision
The Supreme Court clarified that the trial must follow the procedure prescribed in Sections 244 to 247 of the Code of Criminal Procedure, 1973, and that the complainant's advocate would be deemed the Public Prosecutor if cognizance is taken under Section 8(1) of the Criminal Law (Amendment) Act, 1952. The Court dismissed irrelevant prayers made by the complainant's counsel.
Law Points
- Transfer of criminal trial
- Public Prosecutor appointment
- Criminal Law (Amendment) Act
- 1952
- Code of Criminal Procedure
- 1973
- Procedure for trial
