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Saurabh Bharadwaj (Consultancy)     24 November 2009

Can a citizen(Complainant) contest his own criminal case

Looking at the current state of our Society, Its becomming difficult to trust a Public prosecutor.Can I contest my own case if I am a complainant in Criminal Case(Lets say - IPC 376).

Should I make it a private complainant or let the State Contest the Case and I become special Prosecutor of my own Case?



Learning

 24 Replies

Adv Archana Deshmukh (Practicing Advocate)     24 November 2009

 In case of private complaint you can fight your own case but if the private complaint gets converted into a state case or in a state case itself, you cannot conduct the case as an advocate. The reason for this is that in a state case the offence is againt the whole society and the STATE is the complainant. The STATE is represented by the public prosecutors. However you can file a vakalatnama of a private lawyer of your choice, who will ASSIST  the public prosecutor in the case and can file written arguments. In case if you want your case to be wholly conducted by an advocate of your choice then, you'll have to first obtain permission from the state govt. in respect of the same and that adv. should have a standing practise of at least 10 yrs.

1 Like

Anish goyal (Advocate)     24 November 2009

archana g has rightly advised the quarry
1 Like

Saurabh Bharadwaj (Consultancy)     25 November 2009

Thanks a lot for your kind Advice. So I can infer that if I (not being an advocate) want to present a IPC 376 case of the Victim in my capacity of being a complainant, I would be able to present,read the charge,cross-examine,argue(written&oral) during the criminal trial.

The necessary condition is that I should file a private complaint in the court rather than going through Police. So what are the benefits that I loose in case of private complaint. One thing is I dont get a free PP from State.What are other dis advantages??

Now what happens to the charge sheet. I believe its still the prerogative of state(Investigating Agency) to file charge sheet. Do I have a say in that?

And if we go through the Police and let it become State Vs Accused, then I being a Complainant cannot argue my case for 2 reasons:-

1. I am not an Advocate.

2. I dont have 10 yrs exp as an advocate.

Adv Archana Deshmukh (Practicing Advocate)     25 November 2009

 No. In case of an offence u/s. 376 IPC, You let the victim file an FIR with the police. Even if the victim files a private complaint u/s. 376, the magistrate will order a police investigation u/s. 156(3) of crpc. And the case will be converted into a state case.

Saurabh Bharadwaj (Consultancy)     25 November 2009

So it means that even after filing a private complaint, we have to depend on a PP provided by state. We cannot have our own  private lawyer(not as assistant to PP).

Adv Archana Deshmukh (Practicing Advocate)     25 November 2009

As I said earlier, if you want to get the case wholly tried by a private lawyer of your choice, you'll have to first obtain permission for the appointment of special PP for the case from the state govt. 

Saurabh Bharadwaj (Consultancy)     25 November 2009

In your first response, you stated that I can  represent as a omplainant in a Private complaint.But now ,it seems that even in a private complaint , I need permission from State.

Is it beause I have mentioned the case is u/s. 376 IPC, but do the proedure of CrPC  in Private omplaints vary as per the section of IPC.

Sorry that I am asking for clarification , but I find your replies contradicting.

Adv Archana Deshmukh (Practicing Advocate)     26 November 2009

 There is no contradictions, please read them again. I said it is better that the victim file the FIR / complaint. And in any case, considering that the  case is u/s. 376 , the court shall order a police investigation u/s. 156(3) of crpc, and the case will be converted into a state case.



 

 

 

Adv Archana Deshmukh (Practicing Advocate)     26 November 2009

 Please understand that an offence U/S. 376 IPC is very serious one. It is cognizable, non-bailable and triable by sessions court. A trial in a court of sessions court is conducted by a PP.  Or by spl. PP if appointed for the case. A magistrate, on receipt of the private complaint, is bound to order for police investigation U/s. 156(3) and then afterwards commit it to the sessions court for trial.

SANJEEV KUMAR (STUDENT)     29 November 2009

As a complainant you can contest your case since you are party in person. And Party in person can fight case upto Supreme Court. Many persons are contesting their cases.

More over As oer defination of "Pleader" as per CrPC, you can fight your case wth permission of magistrate. Although you can argue your case as party in person still it is better to take written permission from thecourt so that other party can not object when you try to contest/argue in court 

1 Like

Saurabh Bharadwaj (Consultancy)     30 November 2009

Mr Sanjeev , Thanks for your reply, but its again contradicting the advice of Adv Archana.Did you read the discussion b/w  Adv Archana and I??

Does your advice change after reading her advice?

Abhishek (Advocate)     30 November 2009

Mr. Saurabh,

 

Adv Archana has rightly pointed out that when the Private Complaint is filed before the court, court will order for investigation to the concerned PS and the same is converte into the State Case as such the same has to be prosecuted by the PP and thereafter if you are not happy or satisfied with the PP, then you have a remedy to file an application before the court asking a private lawyer on your behalf, but let me clear you this is not a Complaint of Cheque Bouncing that you may reprenst the case in Party in Person.... I totally agree with Adv. Archana as she has rightly advised you....

 

1 Like

Jatin Sapra 9312223345,Delhi (Advocate)     30 November 2009

Hello,

 Mr. Sourabh

 your query is that whether  u can contest that case as a pleader if u r non advocate person so answer is in negative if u r not a party either witness or complainant or accused u have no locus standi in the case.

 As u have taken example of 376 in normal scenerio that is state case so either u have to be related with the prosecutrix or you are witness to the alleged offence or in some scenerio NGO's are also doing this only.

In my opinion u can not be allowed to without any locus in the case.You can file special power of attorney on behalf of prosecutrix or her relatives to lead the case on her behalf.

1 Like

Saurabh Bharadwaj (Consultancy)     01 December 2009

Adv Avinash,

 

Thanks a lot for this logical explaination.

I am a witness and want to plead for prosecutrix in a matter of IPC 376. And a witness can be  a complainant in the case or vice-versa. So do I have suffiecient locus-standii in the case to plead.

 

Regards


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