- (1.) S. K. Phaujdar, J. Through this application under Section 482, Cr PC an order dated 21-8-98 recorded by the 1st Additional Sessions Judge, Etah, in S. T. No. 424 of 1998 is sought to be quashed.
(2.) THE order indicates that the com plainant Rajesh Kumar had appeared in the Sessions trial through his counsel Sri M. P. S. Rana, Advocate and the complain ant desired that Sri Rana should be al lowed to act on behalf of the prosecution in that trial. It was stated that during the examiantion-in-chief of PW-2 Ram Nath Singh the court had stopped Sri Rana to conduct the examiantion-in-chief. THE court had heard both the parties. Undoubt edly, prosecution was to be conducted by Sri B. N. Dixit, Assistant District Gov ernment Counsel (Criminal ). No permis sion was granted by Sr. B. N. Dixit to Sri M. P. S. Rana to conduct the case and the court had opined that Sri Rana had no right to conduct the examination-in- chief of the prosecution witnesses. It was, how ever, submitted on behalf of the privately engaged counsel that the court had chas tised PW-2 which was an interference in the conduct of a case. It was further stated on his behalf that the District Magistrate and S. S. P. had requested Sri M. P. S. Rana to conduct the prosecution. It was between the prosecutor and the private counsel and the court had nothing to say in the matter. With reference to Section 301 (2), Cr PC it was contended that the complainant had every right to engage a private counsel and he could have acted only under the direc tion of the public prosecutor and when the public prosecutor conceded to his so act ing, the court could not take exception to it. The Court below considered differ ent case laws cited before it on the true interpretation of Section 301 (2), Cr PC and finally concluded that Sri M. P. S. Rana, advocate, for the complainant might act in the case but he was to act under the direc tion of the public prosecutor as provided under Section 301 (2), Cr PC and he would have no right to conduct the examination-in-chief of any prosecution witness or to act for any other purpose except for filing a written arguments after closure of the case and, that too, with permission from the Court. The learned Counsel of the com plainant Rajesh Kumar, who moved the instant application, drew my attentiont to Section 301 (2), Cr PC. Nothing was, however, stated about Section 225, Cr PC. The relevant provisions may be quoted. Section 225, Cr PC comes under Chapter XXIII covering the procedure for trial before a Court of Session. Under this Section 225, Cr PC it is mandatory on the part of the public prosecutor to conduct the prosecu tion in every trial before the Court of Ses sion. The language of section is "in every trial before a Court of Session, the prose cution shall be conducted by a public prosecutor. " The further sections indicate that the public prosecutor is to open the case for the prosecution by describing the charge brought against the accused and by staling what evidence was proposed to be brought on record. Then the court was to hear the parties on the question of framing charge. Only after framing charge the court was to proceed for taking evidence followed by the examination of the accused and entering into defence and subse quently hearing and recording the judg ment. Upto the stage of the hearing argu ments the law is clear that the prosecutor or the prosecution was to be heard. At the end of the argument the prosecutor was to sum up his case.
(3.) SECTION 301, Cr PC falls under Chapter XXIV dealing with general pro visions as to enquiry and trial. Under Sec tion 301, Cr PC it is provided that the public prosector or assistant public prose cutor in charge of a case may appear and plead without any written authority before any court in whch that case is under in quiry, trial or appeal. Then comes 301 (2), Cr PC which states that if in any such case any private person instructs a pleader to prosecute any person in any court, the public prosecutor shall conduct the prose cution and the pleader so instructed shall act therein under the directions of the public prosecutor and may with the per mission of the court, submit written argu ments after the evidence is closed in the case. It is clear from a reading of the provisions and the chapter-headings that Chapter XXIV gives general provisions whereas Chapter XVIII speaks of special provisions and the special provisions must override the general provisions. There is no escape from the conclusion that a trial before a Court of Session is to be con ducted for the prosecution by the public prosecutor only. Section 301 (2), Cr PC, no doubt, gives a right to the complainant to engage a private counsel but that cannot elevate that private counsel to the status of a public prosecutor as per definitions of the term in the Cr PC. The public prosecu tor in the Court of Sessions is to be ap pointed by the State Government and nei ther the District Magistrate nor the S. S. P. has any right to nominate a person to act as such conducting a prosecution includes the examination of witnesses, making ar guments and cross-examining the defence witnesses. The public prosectuor cannot abdicate his powers in favour of a person which is not a public prosecutor appointed by the State when it is a matter of trial before a Court of a Sessions.;