Monday, March 7, 2016

Can a Complainant or Victim fight his own cyber crime case or appoint his own Lawyer?



Can a Complainant or Victim fight his own cyber crime case in Magistrates Court or appoint his own lawyer?
Note: Normally when one files a police FIR, the case is represented free of cost by the STATE in the courts i.e By Public Prosecutor.
Yes !!! He can by himself or through his Expert Legal Counsel or a Lawyer.
But he has to file a written application making out a case, so that the magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.
A plain reading of Section 301 reveals that though oral submissions before the court cannot be independent of the Prosecutor, a pleader instructed by a private person can definitely file written submissions before the court independent of the Public Prosecutor, if the court so permits. That apart, Sections 301 and 302 cover two different situations. Section 301 envisages a situation where the Public Prosecutor is in charge of a case and a private person instructs his pleader to intervene. In such cases, as has been rightly held, it is the Public Prosecutor under whose overall conduct and supervision the prosecution is carried on. However, Section 302 is concerned with a situation where any person not being a police officer below the rank of inspector, can prosecute a case, with the permission of the court, either himself or through his pleader. This amply signifies that CrPC contemplates a situation where the whole conduct of the case is with a private person. Thus two levels of intervention by private persons are envisaged under CrPC. One is under the supervision and control of the Public Prosecutor and the other independent of the Prosecutor. Thus clearly, in a case where a private person seeks the permission of the court to intervene, it is the discretion of the court to decide which level of intervention should be allowed in any given case.

The difference between Section 301 and Section 302 of the Code of Criminal Procedure (CrPC) is examined by the Hon. Supreme Court in Dhariwal Industries Ltd. vs. Kishore Wadhwani & Ors. It was held that Section 302 CrPC confers power on a magistrate to grant permission to the complainant to conduct the prosecution independently. The court also made it clear that the said provision applies to every stage, including the stage of framing charge (This means when the court finalises the sections of law to be applied to the accused by passing a charge framing Order) 
A Bench comprising Justice Dipak Mishra and Justice Adarsh Kumar Goel also clarified that when a complainant wants to take the benefit as provided under Section 302 CrPC, he has to file a written application making out a case, so that the magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.
The private complainant, who is the appellant before the Supreme Court, was permitted by the magistrate to be heard at the stage of framing of charge. However, the high court modified the said order by expressing the view that the role of the complainant is limited under Section 301 CrPC and he cannot be allowed to take over the control of prosecution by directly addressing the court, but has to act under the directions of the assistant public prosecutor in charge of the case.
Magistrate Can Permit The Complainant To Conduct Prosecution Independently
Referring to a three-judge Bench decision in J.K. International vs. State, the court observed: “It has been opined that the private person who is permitted to conduct prosecution in the magistrate’s court can engage a counsel to do the needful in the court in his behalf. If a private person is aggrieved by the offence committed against him or against any one in whom he is interested, he can approach the magistrate and seek permission to conduct the prosecution by himself. This court further proceeded to state that it is open to the court to consider his request and if the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission. Clarifying further, it has been held that the said wider amplitude is limited to the magistrate’s court, as the right of such private individual to participate in the conduct of prosecution in the sessions court is very much restricted and is made subject to the control of the public prosecutor. “ 
The court further observed: “Role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by him is required to act under the directions of public prosecutor. As far as Section 302 CrPC is concerned, power is conferred on the magistrate to grant permission to the complainant to conduct the prosecution independently.”
Written Application Must
However, the Bench added: “When a complainant wants to take the benefit as provided under Section 302 CrPC, he has to file a written application making out a case in terms of J.K. International (supra) so that the magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.”
Section 302 CrPC Applies To Every Stage
Allowing the appellant to file an application under Section 302 CrPC before the magistrate, the Bench said: “It may be clearly stated here that the said provision applies to every stage including the stage of framing charge in as much as the complainant is permitted by the magistrate to conduct the prosecution. We have said so to clarify the position of law. If an application in this regard is led, it shall be dealt with on its own merits. Needless to say, the order passed by the learned magistrate or that of the high court will not be an impediment in dealing with the application to be led under Section 302 CrPC.“ 

Role of Public Prosecutor
The other challenge in general public mind is the Public Prosecutor is an officer of the court, and not the counsel of the State, and hence she should be absolutely impartial, and should not work towards a conviction, but should strive to uphold the truth and assist the court in doing the same. This is an idealistic position, and practice has shown that the Prosecutor has basically become the counsel of the State. This is because, ultimately, the Prosecutor is appointed and removed by the State. Hence, she has no choice, but to be briefed by the State and to put forth the views of the State in the court of law. This has very clearly come through in the Best Bakery case, wherein the Public Prosecutors seem to have followed the instructions of the State Government at every step.
Conclusion
To conclude, one of the major aims of punishment under criminal law is deterrence. With abysmal rates of conviction in cyber crime matters, deterrence is becoming meaningless. The criminal-justice system is becoming overburdened and unreliable due to lack of awareness amongst judges and lawyers about cyber crime and electronic evidence. Hence, in my opinion, it makes sense to permit the complainant to represent himself or through his expert legal counsel intervene in criminal cases.

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