Can private advocate conduct trial in police charge sheet case in Court?

[Anonymous]

Dear Sir, on my complaint a case under forgery and cheating (467 and 420 IPC) was registered by police. After investigation, it was charge sheeted in court. At present it is pending in trial court. From police side, public prosecutor is appearing in court. But I find him of no use. He takes the side of the accused and further his knowledge is also limited. I doubt whether accused can be held guilty with this type of PP since he will not prove the case. I am willing to have my own advocate to run the case on my expenses. Will the court allow my private advocate to conduct trial on behalf of the police? Afterall, it is my case and it will benefit police also, since I will try best to get conviction through my advocate.

[Dr. Ashok Dhamija]

At the outset, let me point out that a crime is considered to be a wrong against the State as a whole, even though the victim of a crime may be a single private individual. Therefore, the general principle is that the prosecution of criminal cases is conducted by the State through its Government advocates, who are called public prosecutors, and not by private advocates.

This is more so true in respect of those cases in which police has registered FIR and has submitted charge sheet in the competent court. In such cases, generally speaking, the prosecution is to be conducted by the public prosecutors.

However, if a particular criminal case has been instituted on the basis of a private complaint which has been filed directly in the court (and NOT through the police), in such cases, generally speaking, a private advocate may conduct the case on behalf of the private complainant against the accused.

Having said that there are certain provisions in the Criminal Procedure Code that allow private advocates to assist the public prosecutors, with the permission of the court. There are various provisions in the Criminal Procedure Code on this issue, which need to be explained.

Firstly, Section 225 of the Cr.P.C. unequivocally mentions that a trial before a Sessions Court must be conducted by a Public Prosecutor. Therefore, such trial cannot be conducted by a private advocate.

“225. Trial to be conducted by Public Prosecutor.— In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.”

Then, Section 302 of the Cr.P.C. says that permission may be granted to a person to conduct the prosecution by a Magistrate, who may do so personally or by an advocate. However, the public prosecutor (PP) or Assistant PP can conduct the prosecution without permission. It is noteworthy that this section mentions only the “Magistrate” and it does not cover a trial before the Court of Session. This section is as under:

“302. Permission to conduct prosecution.—(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.”

But, in this regard, Section 301 Cr.P.C. is also quite relevant. It speaks about the PP or the APP appearing in a case without any written authority. And, it further says that if in any such case any private person engages an advocate to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the private advocate shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. Therefore, the private advocate can only assist in the prosecution. Please mark that this section uses the word “Court” and is not confined merely to the Magistrate court, and it may cover even a Court of Session. This implies that even in a Sessions Court, a private advocate may be engaged but he can only assist the public prosecutor and submit written arguments towards the end of the case. This section is as under:

“301. Appearance by Public Prosecutors.—(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.”

I may further point out that recently there was an amendment to Section 24 of the Cr.P.C., which deals with the appointment of public prosecutors. As per this amendment, the Court may permit the victim to engage an advocate of this choice to assist the prosecution. The relevant part of Section 24, namely, sub-section (8) is reproduced as under:

“(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:

Provided that the Court may permit the victim to engage an advocate of this choice to assist the prosecution under this sub-section.”

So, generally speaking, the trial is to be conducted by a public prosecutor or the assistant public prosecutor, and a private advocate can only assist in the prosecution as mentioned above.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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