TMI Blog2002 (12) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, at a later stage of the proceedings in the same case, the appellant urged the Designated Court to drop the charges under Sections 121 and 121A IPC against all the 157 accused as there was no material. Thus he made statements which were contradictory to the earlier stand taken by him and left the matter to the discretion of the court to accept one or the other version to be true in order to secure the ends of justice. Apart from misconduct on the part of the appellant arising under the Advocates Act, it is contended that the same would amount to criminal contempt of court. The contention advanced on behalf of the respondent was that the charges of waging war against the State without reasonable or sufficient material on record results in grave injustice and injury to some of the accused and if he had carried out his functions with due care and caution, such injustice would not have occasioned. He contended in the course of the application as follows: .....Having opened the case under Section 226 CrPC and having proceeded quite far under Section 227 CrPC in respect of framing charges, for the prosecutor to come up with a plea not to frame the charges for la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication and to issue notice to the public prosecutor returnable on 10.3.1995. The public prosecutor noted to have taken notice of the matter. Against this order of the Designated Judge, the present appeal has been filed by the appellant. 4. This Court, on 8.3.1995, directed to issue notice to the respondent and also granted an ad-interim stay of the order made by the Designated Judge on 21.2.1995 and it was also made clear that the pendency of these pleadings will not debar the petitioner from functioning as a prosecutor in the case known as the Bombay Blast Case. Thereafter leave was granted and the interim order granted was affirmed. 5. When the matter was set down for final hearing, the respondent appeared in person and contended that this Court should not entertain a petition on appeal under Article 136 of the Constitution inasmuch as the order passed by the Designated Judge being under TADA and is an interim order and no appeal lies against such order in view of Section 19 thereof. He further contended that inasmuch as an appeal lies under Section 341 CrPC against an order made under Section 340 CrPC in the event of a complaint having been made ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one in that case. This argument proceeds or a misconception of the position in law. An appeal lies when a matter is finally and conclusively decided by a court or a tribunal. If the High Court or the Supreme Court, in exercise of the extraordinary jurisdiction under Article 226 or Article 136 of the Constitution or Section 482 Cr.P.C., as the case may be quashes certain proceedings, a party cannot complain that his right to statutory appeal had been deprived. Therefore, this contention deserves to be rejected. 7. Mr. K.K. Venugopal, learned Senior Advocate appearing for the appellant, submitted that the respondent has a habit of making such complaints and he is not a person who is interested in the matter in any way and no public interest would be served by entertaining an application made by him and he is a total stranger to the proceedings. In fact, he described the respondent as 'busy body or interloper' in the proceedings. In answer to this contention, the respondent relied upon the decisions in Bhagwandas Narandas v. D.D. Patel Co., AIR1940Bom131 and Harekrishna Parida and Ors. v. Emporor, AIR1929Pat242 , to contend that even a stranger to a cause can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission or in a converse situation, having made a correct argument realising that the same would defeat the claim of his client, takes a diametrically opposite stand, could it be said that the said stand would lead to fabricating evidence before the court in any manner which attracts the offences adverted to under Section 195 CrPC. By no stretch of imagination, can we say that the stand of a counsel, however, inconsistent it may be at different stages of the proceedings, can amount of offences adverted to under Section 195 CrPC. If the courts begin to issue notice for prosecution or as to why the inquiry should not be made in the matter or to launch a prosecution, no Advocate can function with safety nor can he assist the court with the necessary fearlessness which is required of him. It is not unknown that even a criminal cases even after committal proceedings are over at the stage of sessions trial before charges are framed by the court or at the stage of final arguments, many public prosecutors have entered NOLLE PROSEQUI in cases where they thought that a charge could not be framed of the concerned should be acquitted. However, that does not mean that such a stand could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the same. He drew our attention to one case where a Sub-Judge, who had tampered with the proceedings before the court to facilitating substitution of the written statement, pursuant to a complaint being filed, was prosecuted under Section 340 CrPC; to another case where a pleader had instigated the witnesses to tender false evidence before the court to cases where the witnesses have changed their stand from time to time. All those cases, in our opinion, have no bearing at all on the present case. 14. We are amazed at the manner in which the learned Designated Judge dealt with this matter. While holding that the respondent had locus standi to present the petition, he ought to have applied his mind further as to whether he should proceed further in the matter at all. If he had thoroughly perused the petition, it would have appeared that the submissions made by the learned public prosecutor - however contradictory they may be - in a case cannot amount to fabrication of evidence by any stretch of imagination. The substance of the complaint should have been looked into and should have been decided. If such caution had been exercised, we are sure, he would not have pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
