- (1.) This revisional application arises out of an application filed under Section 401 read with Section 482 of the Criminal Procedure Code. According to the petitioners, the petitioner No. 1 is the owner of 0.07 satak land within P. S. Jayanagar, 24 Parganas (South) being Dag No. 1268/1768. In the year 1987 the petitioner No. 1 was urgently in need of money and as such, he sold 0.05 satak land out of the above mentioned Dag Number in favour of one Smt. Reba Das, Opposite Party No. 2. Said 0.05 satak land was sold in favour of the Opposite Party No. 2 by a Registered Deed. But all on a sudden the Opposite Party No. 2 and her associates started claiming the entire 0.07 satak land of the said plot and tried to give fencing around the said land. Due to this the petitioner No. 1 had to report the matter to the police station and as a result of that a Jayanagar Police Station Case No. 13 dated 20.081987 was started. After investigation, charge sheet was submitted against the accused persons under Section 420/114/120B of the Indian Penal Code. The petitioner has stated that the accused persons of that G. R. Case filed a petition under Section 156(3) of the Criminal Procedure Code and on the basis of that a criminal case was started against the petitioners and ultimately charge sheet has been submitted under Section 420/120B of the Indian Penal Code. Both the cases arise out of the same incident and those are pending before the learned Judicial Magistrate, 5th Court. Alipore. One Assistant Public Prosecutor has been appointed to conduct both the cases. He is conducting the prosecution so far as both the cases are concerned before the learned Magistrate. The petitioner filed an application before the learned Magistrate and brought this fact to the knowledge of the Court. As the same Assistant Public Prosecutor is conducting both the cases, so the petitioner apprehended that the prosecution cannot be conducted fairly by the said Assistant Public Prosecutor as because in one case he is' to support the version of the de facto complainant while in another case he is to support the claim of the accused persons at whose instance the other criminal case has been instituted. According to the petitioner, appointment of a Single Assistant Public Prosecutor for conducting both the cases has caused serious miscarriage of justice and as such, he submitted before the Court that two separate Assistant Public Prosecutors should be appointed to conduct both the cases separately. But the learned Magistrate rejected the submission of the petitioner without caring for the basic principles of criminal Jurisprudence. The order as passed by the learned Magistrate on 26.08.1998 is violative of the principle of fair trial and as such, it requires intervention by this Court. The petitioner has prayed for setting aside order passed by the learned Magistrate.
(2.) I have heard the submissions made by the learned advocate for the petitioners as well as the learned Advocate for the State. It is the admitted position that, on the basis of a written complaint filed by the petitioner No. 1 a criminal case was started against the opposite party No. 2 over the dispute in respect of land bearing Dag No 1268/1768. It further appears from the copy of another written complaint that at the instance of the opposite Party No. 2 another criminal case was started against the present petitioners over the self-same landed property. There is no dispute that in both the cases charge sheets have been filed and both the cases are pending before the learned Judicial Magistrate, 5th Court, Alipore for trial. There is also no dispute that one Assistant Public Prosecutor is in-charge of both the cases for conducting the prosecution. It appears from the copy of the F.I.R. that in one case the complainant has claimed that the accused persons in collusion with each other had cheated her by depriving her of .02 satak of land by claiming that prior to her deed there was another deed executed by one of the accused in respect of the 0.02 satak of land in question. In another case the F. I. R. shows that it has been alleged that the accused in collusion with others, managed to get the Sale Deed executed by the said de facto complainant by practising fraud so that he was compelled to transfer 0.07 satak of land in place of .05 satak. In both the cases there is allegation of fraud and cheating. But the fact remains in both the cases the parties are same and the property involved is also same. I have already pointed out that both the cases are pending in one Court and one Assistant Public Prosecutor is in-charge of both the cases for conducting the prosecution. Learned R R submits that it is the general practice in the Court below that one Assistant public Prosecutor remains in-charge of all the cases in a particular Court. Naturally, he submits there is nothing wrong in the Assistant public Prosecutor's remaining in-charge of both the cases. But the question is not in respect of the placing the Assistant Public Prosecutor, in-charge of both the cases. Only the dispute has been raised by the de facto complainant of one case who is the accused in another case to the effect that in the hand of the self-same Assistant Public Prosecutor, fair conducting ot prosecution cannot be expected as because being in-charge of a particular case he is to conduct the criminal trial on behalf of the de facto complainant and consequently on behalf of the State. So, the learned Advocate for the petitioner submits that it cannot be expected that the same Assistant Public Prosecutor will be in a position to conduct the trial fairly in respect of other case where the accused of the former case was the de facto complainant. I find substance in the argument of the learned Advocate for the petitioner. The basic principle of Criminal Jurisprudence is that it must be a free trial amongst the parties and justice is not only to be done but also it must be shown that attempt was made to do proper justice to the case of the respective parties. If a single person conducts both the cases which have divergent claims amongst the partie's, then it is difficult or rather impossible to expect free conduct of the prosecution by a single Prosecutor. When he is conducting a particular case as alleged by the de facto complainant then the learned Assistant Public Prosecutor is supposed to believe the case of the said de facto complainant and naturally it will be difficult for him to conduct the other case of the de facto complainant impartially. Moreover, during the course of the conduct of the prosecution, the learned Assistant Public Prosecutor must be in the necessity of discussing the prosecution case with the de facto complainant and his witnesses and there must be some confidential conversations in between the learned Assistant Public Prosecutor and the de facto complainant. This conversation amounts to disclosure by the de facto complainant of certain confidential facts to the learned Assistant Public Prosecutor, which may be against the interest of the other party. So, the learned Assistant Public Prosecutor, in respect of such a communication is not expected to disclose the same to the other side while conducting the other criminal case. Section 126 of the Evidence Act will be a bar in this respect. Learned Advocate for the petitioner has cited a decision reported in 1981 Criminal Law Journal NOC (Andhra Pra) Page 192 G. Ramakrishna Reddy & Ors. v. State, where it has been held that under such circumstances it is always desirable that prosecution of both the cases should be in-charge of separate Assistant Public Prosecutors. It has been laid down in the said decision to the effect. "When two counter cases are to be tried by the same Sessions Court and if the facts of the case are such that, if one case is true, the other must be false, it would not be fair or proper for the Public Prosecutor to conduct both the cases as, while conducting the cases, he cannot reasonably be satisfied with the truth of both the prosecutions". Similar is the position so far as the present case is concerned.
(3.) Under such circumstances, it is desirable that the prosecution of both the cases before the learned Magistrate should be conducted by separate Assistant Public Prosecutors to be appointed by the appropriate authority.;