# Lokesh Singh v. State of U.P

- **Citation:** (2013) 3 ILRA 1197
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-08-26
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lokesh-singh-v-state-of-u-p-42656
- **Pages:** 10

## Headnote

Code of Criminal Procedure-Section 24(8),
301- whether an advocate engaged by
victim has right to address the Court after
conclusion of Trail-held-'yes'

Held: Para-35 and 38

## Text

3 All] Lokesh Singh Vs. State of U.P.
1197
would be tried and decided by the
Magistrate. Hence proceeding in respect
thereof may continue irrespective of the
fact that no permission of the Central
Government has been given in this case to
prosecute the petitioner for the offence
alleged to have been committed at Riyad
in Saudi Arab.

23. Now question comes that on the
basis of other offence said to have been
committed in India whether the court at
Lucknow has jurisdiction to try and
decide the same. From the perusal of the
allegation made in the first information
report the dowry was given in Lucknow
according to the prosecution version in
the FIR. The opposite party No.2 and her
mother was ill treated in Lucknow.
Hence, it cannot be said that this court at
Lucknow has no jurisdiction to try and
decide the case.

24. Hence this petition is liable to be
partly allowed.

25. The impugned order taking
cognizance
for the
alleged
offence
committed in Riyad, Saudi Arab is set
aside, but it will remain operative in
respect of offences which were committed
in India. Learned Magistrate will proceed
with the trial in respect of those offence
expeditiously in accordance with law
keeping in view the provision contained
in Section 309 Cr.P.C.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.08.2013

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Criminal Misc. Case No. 3769 of 2013(u/s
482 Cr.P.C.)
and Criminal Misc. Case No. 3770 of
2013(u/s 482 Cr.P.C.)

Lokesh Singh
 ...Applicant
Versus
State of U.P.

 ...Opp. Parties

Counsel for the Petitioner:
Sri Vaibhav Kalia

Counsel for the Respondents:
Sri K.K. Singh, AGA

Code of Criminal Procedure-Section 24(8),
301- whether an advocate engaged by
victim has right to address the Court after
conclusion of Trail-held-'yes'

Held: Para-35 and 38
35. Hence, this Court is of the view that
after insertion of proviso to Section
24(8) Cr.P.C. if the court permits the
victim to engage an advocate of choice,
the court thereafter cannot deprive the
Advocate to address the court in addition
to his right to file the written argument
as contained in Section 301 Cr.P.C. after
close of evidence.

38. The Advocate appointed by the
victim should be permitted to assist the
court by supplementing the arguments
already advanced by Public Prosecutor
by oral submissions in addition to
written argument if any filed by him.

Case Law discussed:
2000 JCRC 11(SC); 2012(2) JIC 887(All. H.C.);
Cr. Appeal No. 1061 of 2011; 1995(1) SCC 14;
(2010) 5 SCC 186; (2009) 8 SCC 431; (2009)
10 SCC 689; (2010) 5 SCC 246; AIR 2000 SCC
1851; (2001) 6 SCC 338; (2003) 6 SCC 230;
(2009) 1 SCC 441; (1996) 4 SCC 127; (1997)
11 SCC 720; AIR 2010 SC 1385; (2004) 4 SCC
158; 2001 Cr.L.J.; 1264; (1985) 2 SCC 537

(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)

1. By means of these petitions under
Section 482 Criminal Procedure Code (for
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
short 'Cr.P.C.') the petitioners (Lokesh
Singh son of deceased (C.P.Singh) has
prayed for setting aside the order dated
16.08.2013 (in Crl. Misc. Case No.3769
of 2013) and order dated3.8.2013(in Crl.
Misc Case No.3770 of 2013 filed by
petitioner (Virendra Singh, first informant
of the case) passed by Additional District
and Sessions Judge, Court No.1, Lucknow
and further directing the trial court to
allow the victim/petitioner to address the
oral arguments in Sessions Trial No. 341
of 2007, under Section 302, 120B IPC,
P.S. Ashiyana, District Lucknow.

2. Very interesting and important
question of law has been raised in this
petition;

whether an Advocate engaged by
victim of the case has right to address
the court after conclusion of the trial?

3. Sri Gopal Chaturvedi, learned
Senior Advocate appearing on behalf of
petitioner assisted by Sri Vaibhav Kalia,
Advocate submitted that by Code of
Criminal Procedure amendment Act 2008
(5 of 2009) certain amendments were
made in the Cr.P.C. to facilitate the
participation
of
victim
in
criminal
prosecution of an offender. Section 2(wa)
definition of 'victim' has been added
quoted herein below:

"2(wa) "victim" means a person who
has suffered any loss or injury caused by
reason of the act or omission for which
the accused person has been charged and
the expression "victim" includes his or her
guardian or legal heir;)

4. In sub-section 8 of Section 24 of
Cr.P.C a proviso has been added whereby
court was authorised to permit the victim to
engage an Advocate of his choice to assist
the prosecution. The relevant provision of
Section 24(1) and 24(8) are reproduced
herein below:-

"24. Public Prosecutors.--(1) For
every High Court, the Central Government
or the State Government shall, after
consultation with the High Court, appoint a
Public Prosecutor and may also appoint one
or more Additional Public Prosecutors, for
conducting in such Court, any prosecution,
appeal or other proceeding on behalf of the
Central Government or State Government, as
the case may be.

(2)......

(3)......

(4.......

(5).....

(6).....

(7).....

(8)The Central Government or the State
Government may appoint, for the purposes of
any case or class of cases, a person who has
been in practice as an advocate for not less
than ten years as a Special Public Prosecutor."

15[provided that the Court may
permit the victim to engage an advocate
of his choice to assist the prosecution
under this sub-section.]

5. The facts giving rise to present
controversy are necessary to be looked into.

6. A sessions trial No. 341 of 2007
(State Vs. Shiv Bahadur and Ors), under
Section 120-B and Section 302 IPC is
pending in Additional Sessions Judge, Court
No.1, Lucknow. Under proviso to Section
3 All] Lokesh Singh Vs. State of U.P.
1199
24(8) Cr.P.C the petitioners sought permission
for advancement of oral argument along with
public prosecutor in the aforesaid Sessions
trial for extending the necessary assistance
and enabling the court to decide the case in
proper way. It is not in dispute that entire
evidence is over and Public Prosecutor has
already finished the argument in the case on
behalf of prosecution and only thereafter the
right of audience has been claimed by the
petitioners being son of the deceased and First
informant of the case respectively. This
request of both the petitioners were declined
by the impugned orders dated 03.08.2013 and
16.8.2013.It was observed by the sessions
court that they at the most have a right to file
written argument after close of the oral
argument of the prosecutor in view of Section
301 Cr.P.C.

7. As both the petitions are based on
similar facts and common question of law
is involved, hence both these petitions are
being decided by this common judgement.

8. Learned counsel for the petitioners
submits that the law relied upon by the trial
court while deciding the application was not
applicable in the present case because
amended provision of the Cr.P.C. has not
been taken into consideration while delivering
the impugned orders.

9. It was further submitted that the
victim has also given right to prefer an
appeal under Section 372 Cr.P.C. The
appeal is in continuous of the suit and in
case of appeal filed by the victim he
would have a right to address before the
appellate court within the meaning of
Section 325 Cr.P.C. being party . Than
why he should not be given an
opportunity to advance argument before
the trial court after conclusion of the
arguments of public prosecutor. He
further submits that if the petitioner's
counsel is allowed to advance oral
argument it will not at all cause any
prejudice to the accused persons in any
way specially when victim was authorised
to engage his lawyer after the amendment.

10. The learned senior counsel
appearing on behalf of the accused
intervenor Sri I.B. Singh has submitted
that there is specific bar contained in
Section
301
Cr.P.C
regarding
advancement of oral argument by an
Advocate engaged by the victim and at
the most he has right to file written
argument. Hence the court has rightly
decided the applications and there is no
illegality in the impugned orders. It was
further submitted that if after amendment
of Section 24(8) Cr.P.C by adding a
proviso the legal position cannot be
changed
because
Section
301Cr.P.C
already contains a provision regarding
rights of lawyer engaged by the victim
prior to the amendment in Section 24(8)
Cr.P.C.

11. The learned counsel appearing
on behalf of accused persons/ intervenor
relied upon the judgement of the Apex
Court report in 2000 JCRC 11( SC), Shiv
Kumar Vs. Hukum Singh and Ors.
wherein rights in this regard of a private
counsel has been defined. He also relied
upon another judgement of this Court
reported in 2012 (2) JIC 887 (All. H.C.)
Anil Kumar Vs. State of U.P. and an
order dated 18.10.2011 passed by division
bench of this court in Anand Sen Yadav
Vs. State of U.P, Cr.Appeal No.1061 of
2011. After placing reliance upon these
judgement it has been submitted that the
Apex Court in light of Section 301
Cr.P.C. provide that private counsel is to
act on behalf of Public Prosecutor albeit
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
the fact he is engaged in the case by
private party. If the role of the the Public
Prosecutor is allowed to shrink to a
supervisory role the trial would become a
combat between the private party and the
accused
which
would
render
the
legislative mandate in section 225 of the
Cr.P.C. a dead letter. He after relying
upon the judgement of Allahabad High
Court in Anil Kumar's case (supra) it has
been submitted that the complainant has
no right to intervene and independently
make any submissions independently in
opposing
the
bail
application
for
interlocutory bail. The division Bench of
this Court keeping in view the provision
contained in Section 301 Cr.P.C. ruled
that complainant has no authority to
oppose the bail application. After relying
upon the judgement in Anand Sen
Yadav's case (supra) it has been submitted
that Advocate General or Additional
Advocate General too cannot act as public
prosecutors as they were not appointed
under section 24 of Cr.P.C. From the
perusal of the order dated 18.10.2011
passed in Anand Sen Yadav case reveals
that the provisions quoted of section 24 of
Cr.P.C. in the order does not contain the
amended proviso to Sub-sec.8 of Sec 24
of Cr.P.C.

12. I have very carefully heard and
considered the argument advanced by
learned counsel for the parties and
perused the material available on record
filed in these petitions.

13. It is not in dispute that the
legislature made certain amendment vide
Act No.5 of 2009 in Cr.P.C. by adding
definition of victim and giving right to
victim to engage counsel of his choice
during prosecution of accused under
section 24 and also giving right to file an
appeal under section 372. The statement
of object and reason for such amendment
given in the bill are quoted herein below
:-

"Amendment Act 5 of 2009-
Statement of Objects and Reasons:- The
need to amend the Code of Criminal
Procedure, 1973 to ensure fair and speedy
justice and to tone up the criminal justice
system has been felt for quite sometime.
The Law Commission has undertaken a
comprehensive review of the Code of
Criminal Procedure in its 154th report and
its recommendations have been found
very
appropriate,
particularly
those
relating to provisions concerning arrest,
custody and remand, procedure for
summons
and
warrant-
cases,
compounding of offences, victimology,
special protection in respect of women
and inquiry and trial of persons of
unsound mind. Also, as per the Law
Commission's 177th report relating to
arrest, it has been found necessary to
revise the law to maintain a balance
between the liberty of the citizens and the
society's interest in maintenance of peace
as well as law and order.

The need has also been felt to
include measures for preventing the
growing tendency of witnesses being
induced or threatened to turn hostile by
the accused parties who are influential,
rich and powerful. At present, the victims
are the worst sufferers in a crime and they
don't have much role in the court
proceedings. They need to be given
certain rights and compensation, so that
there is no distortion of the criminal
justice
system.
The
application
of
technology in investigation, inquiry and
trial is expected to reduce delays, help in
gathering credible evidences, minimise
the risk of escape of the remand prisoners
3 All] Lokesh Singh Vs. State of U.P.
1201
during transit and also facilitate utilisation
of police personnel for other duties. There
is an urgent need to provide relief to
women, particularly victims of sexual
offences, and provide fair trial to persons
of unsound mind who are not able to
defend themselves."

14. The objective to be achieved by
the aforesaid amendment as per proviso
added in Section 24(8) of Cr.P.C. seems
to extend help the victims and to give
more active role in dispensation of the
criminal justice and to provide active
participation of the victim in the justice
delivery system keeping in view the
concept of fair trial enshrined under
article 21 of the Constitution of India.
Prior to the amendment in Section 24(8)
Cr.P.C,
the
Apex
Court
in
Delhi
Domestic Working Women's Forum
Vs. Union of India and Others reported
in 1995 (1) SCC 14 felt need to issued
direction to provide legal assistance to the
victim of sexual assault even before the
stage of trial and when the matter was at
the stage of investigation. The Apex
Court also directed to prepare a list of
Advocate willing to act in such type of
case where the victims are the women or
the victim of sexual assault.

15. The Apex Court in State of
Kerla Vs. B.Six Holiday Resorts (P) Ltd
(2010) 5 SCC 186 has observed in regard
to the insertion of proviso in statute book
and held;

'A proviso may either qualify or
except certain provisions from the main
provision; or it can change the very
concept of the intendant of the main
provision
by
incorporating
certain
mandatory conditions to be fulfilled; or it
can temporarily suspend the operation of
the main provision. Ultimately the proviso
has to be construed upon its terms. Merely
because it suspends or stops further
operation of the main provision, the
proviso does not become invalid. The
challenge to the validity of the proviso is
therefore rejected.'

16. The Hon'ble Supreme Court in
A.Manjulla Bhashini Vs. A.P.Women's
Coop. Finance Corporation Ltd. (2009)
8 SCC 431 has considered the use of
statement of object and reason while
interpreting the statutory provision and
observed in para 42 is as follows:

"40 The proposition which can be
culled
out
from
the
aforementioned
judgements is that although the Statement
of Objects and Reasons contained in the Bill
leading to enactment of the particular Act
cannot be made the sole basis for construing
the provisions contained therein, the same
can be referred to for understanding the
background, the antecedent state of affairs
and the mischief sought to be rermedied by
the statute. The Statement of Objects and
Reasons can also be looked into as an
external aid for appreciating the true intent
of the legislature and/or the object sought to
be achieved by enactment of the particular
Act or for judging reasonableness of the
classification made by such Act."

17. Almost similar view has been
taken by Apex Court in Tika Ram Vs. State
of Uttar Pradesh [(2009) 10 SCC 689].

18. The Apex Court in Zameer
Ahmed Latifur Rehman Sheikh Vs. State
of Maharashtra [(2010) 5 SCC 246] ruled
about interpretation of the statute. It has been
observed that the statute has to be read in its
entirety and not in isolation. The provision of
law has to be seen in the context in which it
is introduced.
1202 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In R.Rathinam Vs State (AIR
2000 SCC 1851) the Hon'ble Supreme Court
permitted a lawyer to file an application for
cancellation of bail. This view was approved
by the Apex Court in Puran Vs. Rambilas
[(2001) 6 SCC 338. In R. Rathinam's case
(supra) the Apex Court held that the frame of
sub-Section 2 of Section 439 Cr.P.C.
indicates that it is a power conferred on the
court mentioned therein. It was held that
there was nothing to indicate that the said
power could be exercised only if the State or
investigating agency or the Public Prosecutor
moved an application. It was held that the
power so vested in the High Court can be
invoked by any aggrieved party he can
addressed the court.

20. The Apex Court in Dawarika
Prasad Agarwal Vs. B.D. Agarwal [(2003)
6 SCC 230] held that party can not made to
suffer adversely either directly or indirectly
by reason of an order passed by any court of
law which is not binding on him. The very
basic upon which a judicial process can be
resorted to is reasonableness and fairness in a
trial. The fair trial is fundamental right of
every citizen including the victim of the case
under article 21 of our Constitution as held in
Nirmal Singh Kahlon Vs. State of Punjab
[(2009) 1 SCC 441.

21. In view of the aforesaid authorities
of the Apex Court the provision of statute to
be looked into.

22. Section 301 Cr.P.C. is quoted
herein below:-

"301 Appearance by Public Prosecutors.

(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 any Court, the Public Prosecutor
or Assistant Public Prosecutor in charge
of the case shall conduct the prosecution,
and the pleader so instructed shall act
therein under the directions of the Public
Prosecutor or Assistant Public Prosecutor,
and may, with the permission of the
Court, submit written arguments after the
evidence is closed in the case."

23. This Section provides that Public
Prosecutor or Assistant Public Prosecutor
in charge of a case may appear without
any written authority before any court in
which that particular case is under
inquiry, trial or appeal. Sub-section 2
provides that if any private person instruct
a pleader to prosecute any person in any
court, the public Persecutor in charge of
the case shall conduct the prosecution and
pleader so instructed shall act therein
under the direction of public Prosecutor
and may with the permission of the court
submit
written arguments
after
the
evidence is closed in the case.

24. Section 301 Cr.P.C. has not been
amended vide Act No.5 of 2008. The
insertion in the statute book ,the proviso
to Section 24 (8) added by Act No.5 of
2008, whether in any way, effects the
provision of section 301, is sole question
for consideration before the Court.
Proviso added to section 24(8) Cr.P.C.
provides that victim define in Section
2(wa) may be permitted to engage an
advocate of his choice to assist the
prosecution under this sub-section. Subsection 8 provides appointment of Special
Public Prosecutor, different from Public
Persecutor appointed under Section 7 of
Sub-section 24 of Cr.P.C. The basic
distinction drawn in the statute by
3 All] Lokesh Singh Vs. State of U.P.
1203
introducing the proviso that if the victim
defined under Section 2(wa) Cr.P.C. is
permitted to engage a lawyer he will
acquire
status
of
Special
Public
Prosecutor subject to riders imposed
under the proviso.

25. In proviso added to Section
24(8) Cr.P.C the word used are "assist the
prosecution" and not to 'assist the public
Prosecutor' as mentioned in Section 301
Cr.P.C. There is difference in the scheme
of two sections. From perusal of Subsection 2 of section 301 Cr.P.C. made it
clear that if in any case private person
instruct a pleader to prosecute any person
in any court even though the Public
Prosecutor in charge of case shall conduct
the prosecution and the pleader instructed
shall act therein under the directions of
the Public Prosecutor. Up to this stage no
permission of court is needed for
appointment of pleader by a private
person. The permission is only required to
the pleader if he want to file written
argument in the case. However after
insertion of proviso to Section 24(8)
Cr.P.C. the court can permits a victims
advocate to assist the prosecution. The
status and position of Advocate engaged
by the victim would be changed because
in that situation the court at the very
inception may permit the Advocate of the
choice of the victim to participate in the
proceeding and to assist the prosecution and
not to the public prosecutor. Prosecution
include investigation,enquiry,trial and appeal
within the meaning of Section 24 Cr.P.C.
Section 301 Cr.P.C. deals with only inquiry,
trial or appeal. Inquiry has been defined in
Section 2(g) Cr.P.C , means every inquiry,
other than a trial, conducted under this Code
by a Magistrate or Court. As such inquiry is
different from investigation as defined in
section 2(h) Cr.P.C.

26. Neither word 'prosecution' nor 'trial'
has been defined in the Cr.P.C. Trial has
been defined by the Apex Court in Union of
India Vs. Major General Madan Lal
Yadav [(1996) 4 SCC 127]. It means an act
of proving or judicial examination or
determination of the issues including its own
jurisdiction or authority in accordance with
law or adjudging guilt or innocence of the
accused including all steps necessary thereto.
Meaning of trial changes in view of specific
provision of the code. The expression 'trial'
used in Section 306 Cr.P.C. includes both an
'inquiry' as well as 'trial' as held by the Apex
Court in A.Devendran Vs. State of
Tamilnadu [(1997) 11 SCC 720.

27. The prosecution has not been
defined specifically in the light of proviso
to Section 24(8) Cr.P.C. The meaning of
word 'prosecution' as defined in Webster
Dictionary, 3rd Edition is as follow;

"the carrying out of a plan,
project, or course of action to or
toward a specific end."

In view of the aforesaid definition the
'end' for which a plan or project is carried out
is called prosecution. In respect of proviso to
Section 24(8) Cr.P.C. prosecution in respect
of an offence begin with putting the law into
motion by any individual or sufferer of crime.
The 'end' in a prosecution within the meaning
of proviso to sub-section 8 of section 24
Cr.P.C. would be adjudication of guilt of an
offender who is charged with commission of
an offence in accordance with procedure
established by law in a court constituted under
this code. So the prosecution starts with giving
information of commission of crime and
continued during investigation or inquiry, trial
of offender and if any appeal is filed finally
end by an order passed in appeal. This whole
process is the part of fair trial inbuilt in Article
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
21 of our Constitution. The word prosecution
is also used in different sense in different
situation. When word 'prosecution' is used in
defining the parties to criminal case it is used
for the party who is siding the victim. When it
used in respect of an accused means pending
proceeding to ascertain the guilt of the
accused. When an offence is committed it
certainly committed against the society but the
sufferer is called victim. Victim has direct
nexus with the damage caused to him but
society may have a remote effect. The
legislature for the first time insert provision for
protection of the right of victim in the
Criminal Procedure Code and specially
keeping in view being the worst sufferer of
crime. Thus, the victim should not be kept
aloof from the judicial process in which the
wrongdoers is undergoing the process of
ascertainment of his guilt for wrong
committed by him. In this judicial process, by
means of amendment made by Act No.5 of
2008, the status of the victim has been
improved from a silent expectator of
proceeding before the court to a participant of
the proceeding. Therefore the word used in
the proviso added to Section 24(8) Cr.P.C. is
to 'assist the prosecution' and not to assist the
'public prosecutor'. Therefore there is basic
difference in between proviso to Section 24(8)
and Section 301 Cr.P.C. It is true that section
301 Cr.P.C. has not been amended by Act
No.5 of 2008 but if the principals of
harmonies construction is applied while
interpreting the different provision of same
statute like proviso to section 24(8) and
Section 301 Cr.P.C. , the letter and spirit
inducted in proviso added to sub-Section 8 of
Section 24 of the Cr.P.C. cannot be diluted by
saying that no amendment has been
incorporated in Section 301 Cr.P.C.

28. The whole scheme if taken into
consideration for prosecution and trial of
an accused the dominant role is played by
the public prosecutor but by insertion of
proviso to Section 24(8) Cr.P.C. the Court
is now authorised to permit the victim to
engage a lawyer of his choice to assist the
prosecution. The prosecution of an
offender is virtually carried out in the
court of law constituted under some
statute presided over by a judge and not
by any party to the proceedings. The
public prosecutors,the advocate of the
accused or special counsel appointed by
the aggrieved person or the Advocate
engaged by a victim, all are officers of the
court. They all assist the court to arrive at
truth during prosecution of an accused .
Therefore in section 24 or in section 301
phrase 'with the permission of court' is
used. So, once the permission is accorded
to the Advocate of the victim to assist the
prosecution his assistance could not not
be restricted to the termanalogy of Section
301,i.e. only to assist the prosecutor. The
court in view of the same can permit to
advance the oral argument too to the
Advocate engaged by the victim apart
from submission of the written argument.
The importances of oral argument cannot
be out weight by saying that right to
written argument has been given in
Section 301 Cr.P.C.

29. In Section 301 Cr.P.C there seems
no previous permission to engage a private
pleader by any private person even if he has
no personal interest. The permission is
required only if he intents to file the written
argument. However in proviso to Section
24(8) Cr.P.C. permission is accorded to the
Advocate of the choice of the victim to
assist the prosecution and not to the public
prosecutor.

30. Section 301 Cr.P.C does not say
that oral argument cannot be permitted to an
advocate engage by the victim. It only
3 All] Lokesh Singh Vs. State of U.P.
1205
prohibits that if a private party engaged a
pleader he can assist the public prosecutor and
court may permit him to file the written
argument. There is difference between the
pleader and Advocate. Advocate is treated to
be officer of the court and supposed to assist
the court in arriving the truth, so, right to
address the court to an Advocate cannot be
curtailed while representing his client in the
light of provisions of Advocates Act. In
Poonam Vs. Sumit Tiwari AIR 2010
SC1385 their Lordship has discussed the
importance of assistance of a lawyer in the
light of section 35 of Advocates Act and
observed that in absence of proper assistance
to Court by the lawyer, there is no obligation
on the part of the Court to decide the case, for
the simple reason that unless the lawyer
renders the proper assistance to the Court, the
Court is not able to decide the case properly. It
is not for the Court itself to decide the
controversy. The counsel cannot just raise the
issues in his petition and leave it to the Court to
give its decision on those points after going
through the record and determining the
correctness thereof. It is not for the Court itself
to find out what the points for determination
can be and then proceed to give a decision on
those points. In case counsel for the party is not
able to render any assistance, the Court may
decline to entertain the petition. Moreover if the
petition is decided in such cases the judgment
given may be violative of principles of natural
justice as the opposite counsel would not "have
a fair opportunity to answer the line of
reasoning adopted" in this behalf.

31. In Zahira Habibulla H.Sheikh
v. State of Gujrat,[(2004) 4 SCC 158]
their Lordship of Hon'ble Supreme Court
observed that Public Prosecutor is an
officer of the Court but there are instances
in which the Public Prosecutor is either
not competent or act only on the
instructions given by the State.

32. The Public Prosecutor simply
conduct the trial with sense of detachment
whereas the victim remain attached with
his case and ventilates his grievance
because a decision given in the matter
may not have any impact upon Public
Prosecutor but it effects the victim.

33. The Apex Court held in M/S
J.K. International Vs. State, 2001
Cr.L.J 1264, that a complaint is sought to
be quashed by accused then the de-facto
complainant have a right to be heard.

34. A similar view has been
propounded by the Apex Court in
Bhagwant Singh Vs. Commissioner of
police, [(1985) 2 SCC 537] wherein in
the
case
of
submission
of
closer
report/final report by the investigating
agency the right has been conferred upon
the informant/complainant of being heard
before acceptance of the same .

35. Hence, this Court is of the view that
after insertion of proviso to Section 24(8)
Cr.P.C. if the court permits the victim to
engage an advocate of choice, the court
thereafter cannot deprive the Advocate to
address the court in addition to his right to file
the written argument as contained in Section
301 Cr.P.C. after close of evidence.

36. Moreover, if the Advocate of
victim is allowed to advance oral arguments
it will not caused any prejudice to the
accused. Of course,this right should not be
allowed to be used as a tool in the hand of
such advocate to delay or to create hurdles
during the trial. The Judge presiding over the
Court should monitor the trial keeping in
view the concept of fair trial. Fair trial does
not mean only to protect the interest of the
accused person but it also include to protect
the rights of the victim. However, under the
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
garb of this right a victim cannot be allowed
to linger on proceedings.

37. Hence, in view of above this
Court is of the view that the orders passed
by the trial court are not sustainable and
the same are liable to be set aside.

38. The Advocate appointed by the
victim should be permitted to assist the court
by supplementing the arguments already
advanced by Public Prosecutor by oral
submissions in addition to written argument if
any filed by him.

39. Consequently, these petitions are
allowed. The impugned orders dated
3.8.2013 and 16.8.2013 are set aside. The trial
court is directed that the Advocate appointed by
victim of the case shall be permitted to advance
oral argument in addition to written argument if
any earlier filed, fixing a date and maximum
time which the trial court may think reasonable
in one stretch but not less than a day. This will
be an opportunity granted only once to the
victim alone as defined in Section 2(wa) of
Cr.P.C. No further adjournment shall be
allowed to the victim in this regard.

40. The interim order stand
discharged.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2013

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No. 4648(M.S.) of 2006

Smt. Saroj

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Opp. Parties

Counsel for the Petitioner:
Sri Tripathi B.G.Balak
Counsel for the Respondents:
C.S.C., Sri Brijendra Chaudhary
Sri Raj Kumar Singh

Constitution of India, Art. 226- Insurance
claim-husband of petitioner-working as
presiding officer in General election of
Parliament 2004-death caused due to snake
biting-claim denied by company on ground
death not covered under II scheduled-as
accidental death-held-necessarily a part of
accidental death-entitled for claim of Rs.
500000/- alongwith 12% interest from the
date of death.

Held: Para-10 & 11
10. Thus, after reading the aforesaid
definition, it is apparent that the incident
caused by the forceful act can be said to
be caused by violent . When the snake
bites, definitely it uses its physical force
in doing so. Therefore, the said attack of
snake cannot be said to be natural or
ordinary one but it is an unnatural
accidental attack with physical force.

11. Therefore, I am of the view that death
caused by snake biting is necessarily an
accidental death caused by violent which is
covered under the scope of cover as is
provided in the part II of the Schedule of
the Insurance Policy.

Case Law discussed:
W.P. No. 11981 of 2009

(Delivered by Hon'ble Shri Narayan Shukla, J.)

1. Heard Mr Tripathi B.G. Balak,
learned counsel for the petitioner as well
as learned Standing Counsel.

2. Briefly the facts of the case are
described as under:-

The petitioner claims herself as wife of
Krishna Chandra, who was deputed on
election duty during General Election of
Parliament in the year 2004. Petitioner's