Counsel for the complainant opposing anticipatory bail has no right to be heard in Court

Counsel for the complainant opposing anticipatory bail has no right to be heard in Court

Section 438 (Anticipatory Bail) of the Code of Criminal Procedure does not contemplate by itself any hearing to be given to the complainant party in a police case. There is no provision of law or any case wherein it may have been laid that even in a police case a complainant party can be given hearing. The various provisions in the Code of the Criminal Procedure, particularly Sections 417, 422 and 494 bring out the importance of functions and duties of a Public Prosecutor, who is the sole authority to conduct the cases instituted by the police on behalf of the State.

He is supposed to act independently and exercise his own discretion to see that justice is done in such cases. He has to conduct the proceedings in a fair mind without any prejudice towards the accused whereas if the complainant is allowed to interfere in the proceedings, it is evident that object of the complainant would not be to see only that justice is done in a particular case but in all probability such a complainant would be swayed with the emotions to seek revenge or vendetta for his own satisfaction Counsel representing the complainant cannot be as unbiased as a public prosecutor would be.

In P.S. Saravanabhavanandam v. S. Murugaiyyan, 1980 Cri LJ 1540, a single Judge of the Madras High Court considered the question whether a third party could pray for being impleaded in the proceedings before the Criminal Court. By making reference to section 301 of the Code of Criminal Procedure, the Court found that the same enables the private parties to assist the prosecution and also submit written arguments with the leave of the Court It was held that there is no provision for a third party to intervene in the anticipatory bail application with a view to represent the matter before the Court. The learned single Judge laid down that when a party cannot be impleaded in a criminal proceeding, he cannot be permitted to come in under the guise of an intervener. At the same time the right of a party to represent a matter before the Court cannot be whittled down into a straitjacket formula of locus standi which is unknown to criminal jurisprudence. Section 301 of the Code of Criminal Procedure reads as follows : “(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 the any Court, the Public Prosecutor or Assistant Public Prosecutor in charge he case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor of Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case”.

So, it is evident that a complainant can only assist the Public Prosecutor when the proceedings are being conducted at the stage of inquiry, trial or appeal. Such a complainant can submit written arguments after the evidence is closed in the case but as far as application for grant of bail is concerned there is no provision made in the Code of Criminal Procedure that a complainant or a third party can intervene and make any submissions independently in opposing the application for grant of bail or anticipatory bail. A single Bench of Punjab an Haryana High Court in Kuldip Singh v. State of Haryana, 1980 Cri LJ 1159, also considered the provisions of Section 301 of the Code of Criminal Procedure in the same manner. Counsel for the petitioner has also made reference to Sarwan Kumar v. State of Haryana, 1989(2) Recent Criminal Reports 469, wherein a single Judge of that Court also held that the first informant or the complainant in proceedings seeking grant of anticipatory bail neither can be considered as necessary party nor a proper party and has no locus standi to be heard. It was held that the complainant party may hold a watching brief and may bring the relevant facts to the notice of the State counsel and apart from that the complainant party has no right to be heard when particularly the State is duly represented.

Generally, in anticipatory bail cases related to dowry, section 498-A, 406, Protection of Women from Domestic Violence Act, 2005, Dowry Prohibition Act, 1961, advocates for complainant appear in court. Judges can stop them from appearing by exercising their discretionary powers. For more details contact lawyers in Chandigarh.