Private Prosecutor Appointed By Complainant May Seek Framing Of Additional Charge, Does Not Amount To Taking Control Of Prosecution: Madras High Court

The Madras High Court recently set aside the order of Judicial Magistrate, wherein it was held that a Private Pleader, who was appointed by the complainant to assist the Public Prosecutor, could not conduct an independent prosecution under Section 301(2) of the Code of Criminal Procedure and therefore had no locus standi to plead on behalf of the prosecution and conduct the case.

Justice Bharatha Chakravarthy observed that the order of the Magistrate was unsustainable since Section 301 of CrPC is not applicable to Magistrate Courts. Further, it observed that merely because the said application was not emanating from the Public Prosecutor/Police, is not a ground to throw it out.

It relied on the Apex Court in Anant Prakash Sinha v. State of Haryana & Anr.wherein the court had observed that just because an application to add a charge is filed, the same would not amount to a private lawyer takes control of the proceedings.

The court also held that though the victim's counsel could not take the role in conducting the prosecution himself, he could bring to the notice of the court any shortcomings and if the court was satisfied, it could invoke its powers and act accordingly. 

In the instant case also, P.W.1, victim, has filed an application bringing to the notice of the Court about the fact that certain specific charges are omitted to be framed, arising out of the self-same allegations, for which there need not be further investigation or additional evidence and therefore, it is for the Court to consider the same on merits. Therefore, on the mere reason that same is not emanating from the learned Public Prosecutor/Police, it cannot be thrown out. Therefore, the order of the learned Magistrate is unsustainable. 

In the present case, the petitioner (complainant) had purchased a property by registered sale deed. Taking advantage of the fact that he was absent in the village and was living elsewhere, the first and second accused entered into a conspiracy and forged a sale agreement to grab the property. They also filed a civil suit and tried to trespass on the property. When the petitioner came to know of this, they threatened to do away with his life. A case was registered with then-District Crime Branch, Vellore on the above allegations. When the case was taken up on the file, the Magistrate framed charges under Section 120(B), 419, 420, 423, 447, 465, 468, 471, and 506(i) of the Indian Penal Code. The petitioner was also permitted to appoint a Counsel to assist the Public Prosecutor.

During the examination of witnesses, the petitioner filed a petition under Section 216 of the Code of Criminal Procedure to frame additional charges under Sections 34, 109, 467, and 474 of the Indian Penal Code. The court held that the private pleader, who was appointed, cannot conduct an independent prosecution himself, and therefore, he had no locus to plead on behalf of the prosecution and conduct the case. The trial court also held that the private pleader could put forth his written arguments post completion of evidence and arguments and also held that a petition to alter the charges cannot be filed at this stage.

The High Court also considered the power of alteration of charge under Section 216 of CrPC. The court opined that on a careful reading of the Section and the judgments of the Supreme Court it can be seen that the charges may be added when there was an omission or when the court is satisfied that the ingredients of the alleged offence exist. The court should also consider ot such alteration/addition of the charges would cause prejudice to the defence of the accused.

Thus, it may be seen that the charges can be added if there was an omission in the framing of charge or if upon prima facie examination of the material brought on record, it leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the alleged offence. And the second test is that the Court should examine whether such alteration/addition of charges would cause prejudice to the defence of the accused.

In the present case, the court was satisfied that the charges sought to be added by the petitioner did not bring in any additional facts or discovery. The materials on record at the inception itself were taken at face value under the added charges. Thus, the court opined that the additional charges could be framed and questioned and the trial could be proceeded as if the charges were a part of the original charges.

Case Title: N Syamasundara Naidu v. V Dakshinamoorthy and others

Case No: Crl RC No. 605 of 2022

Citation: 2022 LiveLaw (Mad) 266

Counsel for the Petitioner: Mr.R.Vijaya Raghavan

Counsel for the Respondent: Mr.K.Srinivasan (R1-R2) and Mr.S.Vinoth Kumar (R3)