The courts will grant permission to de facto complainant, a victim, to conduct prosecution independently at any stage of proceedings and even to come on record as co-respondent either to assist the court or to assist the public prosecutor (PP) as the case may be. The trial courts will grant such relief, that too when assistant public prosecutors or additional PPs or PPs are not sufficiently available, one to each court, so that the trial process cannot be delayed.
According to the proviso in Section 24(8) of CrPC, the court may permit the victim to engage an advocate of his or her choice to assist the prosecution. Here, to assist the prosecution does not mean mere assisting the PP but for conducting the prosecution itself by the de facto complainant in person or through private advocate of his or her choice either under Section 24(8) proviso or under Section 302 of CrPC as the case may be.
In a case before the Hyderabad High Court, the petitioner woman is the de facto complainant in the case pending before the metropolitan magistrate court at Malkajgiri, Cyberabad, wherein A1 is her husband, and A2 and A3 are parents-in-law and others who are relatives of her husband. The crime registered against them is for the offences punishable under Section 498-A of IPC (subjecting her to cruelty) and Sections 3 and 4 of Dowry Prohibition Act. After the final report was filed by the police, the magistrate took cognizance of the said offences. As the case was pending, the de facto complainant filed an application seeking permission for conducting prosecution through a private advocate. The accused persons opposed it by filing a counter and the magistrate dismissed her application. Aggrieved, she filed a quash petition before the High Court.
Her counsel contended that the impugned dismissal order was contrary to law and liable to be set aside. On the other hand, the counsel for respondents submitted that the impugned order was within the judicial discretion exercised by the trial court and that, in no way, required the intervention of the High Court, and sought dismissal of the quash petition. The public prosecutor, representing the State, wanted the matter to be decided on its own merits.
Justice B Siva Sankara Rao found that the prosecution examined some witnesses and, after closure of the prosecution evidence, the accused was examined, and the latter filed an application to receive some documents which are copies of some private correspondence. The PP did not file a counter opposing it.
Earlier, the victim had filed an application wanting to engage a private advocate to assist the prosecution and the court allowed it only to assist the APP.
The accused, in their counter, termed all the allegations false. Her claim that the APP was busy and in-charge of several courts was not correct and the cited Dhariwal Industries case in the Supreme Court had no application to the present case, they contended.
The PP filed a counter, saying that the petition was not maintainable as earlier permission was accorded to assist APP and file written arguments, and another petition for conducting prosecution through a private advocate cannot be allowed.
The Judge held that the de facto complainant and victim respectively were entitled to conduct prosecution and participate in the proceedings, either personally or by engaging an advocate. It is also the need of the hour for trial courts to exercise the power, that too when APPs or additional PPs or PPs are not sufficiently available for each one to each court so that the trial process cannot be delayed.
One APP may not concentrate effectively by attending cases in more than one court as their duties are not only conducting prosecution but also representing in bail applications and several other pre-trial proceedings, the judge said and allowed the quash petition by setting aside the dismissal order of the lower court.