Sunday, 25 September 2016

Whether magistrate can give permission to complainant to conduct prosecution at every stage including stage of framing charge?

 Mr. Tulsi, learned senior counsel appearing for the
appellant submits that he intends to file an application
before the learned Magistrate and hence, liberty may be
granted. Mr. Singh has seriously opposed the same.
Regard being had to the rivalised submissions, we only
observe that it would be open to the appellant, if so advised,
to file an application under Section 302 CrPC before the
learned Magistrate. It may be clearly stated here that the
said provision applies to every stage including the stage of
framing charge inasmuch 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 filed, it shall be dealt with on its own merits.
REPORTABLE
IN THE SUPREME COURT OF INDIA.
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 859 OF 2016
(@ S.L.P.(Criminal) No. 5717 of 2012)
Dhariwal Industries Ltd. 
 V
Kishore Wadhwani & Ors. 
Dated:September 06, 2016

Citation: 2016 SCC OnLine SC 935:AIR 2016 SC4369




2. The present appeal, by special leave, assails the order
dated 13th February, 2012 passed by the High Court of
Judicature at Bombay in Criminal Writ Petition No. 3438 of
2010 whereby the learned Single Judge has modified the
order dated 30th August, 2010 whereunder the Additional
Chief Metropolitan Magistrate, 8th Court, Esplanade,
Mumbai in C.C.No.927/PW/2007 had permitted the
appellant to be heard at the stage of framing of charge
under Section 239 of the Code of Criminal Procedure (for
short, “CrPC”), 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 Assistant Public Prosecutor in charge of the
case.
3. The facts which are requisite to be stated for the
purpose of adjudication of the present appeal are that the
appellant filed a complaint under Section 200 CrPC for the
offences punishable under Sections 109, 193, 196, 200,
465, 467 and 471 read with Section 120-B of Indian Penal
Code (IPC). The learned Magistrate exercising the power
under Section 156(3) CrPC, directed the police to investigate
into the allegations. The investigating agency registered an
FIR and eventually laid the charge-sheet before the Court
and thereafter the case was registered as C.C. No.
927/PW/2007.
4. After the charge-sheet was filed, the accused persons
filed an application under Section 239 CrPC seeking
discharge. At that juncture, the appellant made an oral
prayer before the learned Magistrate seeking permission to
be heard along with the Assistant Public Prosecutor. The
learned Magistrate after hearing the learned counsel for the
parties observed that the original complainant is not alien
to the proceeding and, therefore, he has a right to be heard
even at the stage of framing of charge and, accordingly,
granted the permission.
5. Being dissatisfied with the aforesaid order, the
accused-respondents preferred the criminal writ petition
before the High Court. The High Court referred to Section
301 CrPC and certain authorities of this Court and came to
hold thus:-
“Undoubtedly the first informant now enjoys a
role higher than earlier as already seen in the
preceding paragraphs. In fact perusal of the
petition shows that the petitioners also not wish
to deny participation of the first informant
altogether. They only want his role to be limited
as under Section 301 Cr.P.C. An application for
discharge can result into putting an end to the
prosecution either partly or fully. This stage is in
that respect similar to the stage of consideration
of the police report by the Magistrate under
Section173(2) Cr.P.C and the proceedings for
quashing of the complaint filed by the accused
person. The first informant, therefore, is likely to
be interested in seeing that the matter reaches
the stage of trial and is disposed off after
recording of evidence. If by judicial
pronouncements, he is now granted hearing at
the earlier two stages, he can be granted hearing
at the stage of discharge also, though the
Criminal Procedure Code does not make
provision for hearing to him at that stage. If the
first informant appears before the Court and
desires to participate in the application,
opportunity cannot be refused to him. Now the
next question would be about the nature of the
hearing to be given to the first informant. Should
the hearing be independent to the hearing to the
Public Prosecutor or it be through the Public
Prosecutor. In my opinion, his role will have to
be limited as under Section 301 Cr.P.C. for the
same reasons, as given in Anthony D'Souza's
 Anthony D’Souza v. Mrs. Radhabai Brij 
Ratan Mohatta, 1984 (1) BC.R. 157
case and keeping in focus the role of the Public
Prosecutor. He cannot be allowed to take over the
control of prosecution by allowing to address the
court directly. Therefore, the petition is partly
allowed. The impugned order is modified to the
extent that the Counsel engaged by respondent
no. 2 shall act under the directions of the
Assistant Public Prosecutor in-charge of the
case.”
6. Questioning the legal propriety and the approach of
the High Court, it is submitted by Mr. K.T.S. Tulsi, learned
senior counsel appearing for the appellant that the High
Court has gravely erred by placing reliance on Section 301
CrPC and completely ignoring the stipulations inherent in
Section 302 CrPC. According to Mr. Tulsi, there is a
distinction between a trial before a Magistrate and a
sessions trial and Section 302 CrPC has exclusive

application to a magisterial trial and hence, the
complainant can address the Court directly, if permitted by
the Court. To strengthen the said submission, he has
commended us to the authorities in J.K. International v.
State (Govt. of NCT of Delhi) and others  (2001) 3 SCC 462
 and Sundeep
Kumar Bafna v. State of Maharashtra and another 
 (2014) 16 SCC 623

7. Mr. Vikas Singh, learned senior counsel, in his turn,
contends that Section 301 CrPC is applicable to all
categories of cases and therefore a complainant is entitled
to assist the Court under the directions of the public
prosecutor. That apart, submits Mr. Singh, he has the only
other liberty to file the written arguments with the
permission of the court. Mr. Singh would vehemently urge
that the appellant had never sought to conduct the case
under Section 302 CrPC and as envisaged, no application in
that regard was filed and, therefore, no fault can be filed
with the order of the High Court. It is further submission
that as the factual matrix would exposit, the learned
Magistrate allowed the prayer on the basis of an oral
submission which is one under Section 301 CrPC and, in

such a situation, no laxity should be given to him to take
the benefit of Section 302 CrPC. Additionally, propones Mr.
Singh, that there is slight disharmony in the
pronouncement in J.K. International (supra) and Shiv
Kumar v. Hukam Chand and another  (1999) 7 SCC 467
 which needs to be
reconciled.
8. Section 301 CrPC reads as follows:-
“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.”
9. In Shiv Kumar (supra), the Court has clearly held that
the said provision applies to the trials before the Magistrate
as well as Court of Session.
10. Section 302 CrPC which is pertinent for the present
case reads as follows:-

“Permission to conduct prosecution-(1)Any
Magistrate inquiring into or trying a case may
permit the prosecution to be conducted by any
person other than police officer below the rank of
Inspector; but no person, other than the
Advocate-General or Government Advocate or a
Public Prosecutor or Assistant Public Prosecutor,
shall be entitled to do so without such
permission:
Provided that no police officer shall be permitted
to conduct the prosecution if he has taken part in
the investigation into the offence with respect to
which the accused is being prosecuted.
(2) Any person conducting the prosecution may
do so personally or by a pleader.”
11. In Shiv Kumar (supra) interpreting the said
provision, the Court has ruled:-
“8. It must be noted that the latter provision is
intended only for magistrate courts. It enables
the magistrate to permit any person to conduct
the prosecution. The only rider is that magistrate
cannot give such permission to a police officer
below the rank of Inspector. Such person need
not necessarily be a Public Prosecutor.
9. In the Magistrate’s Court anybody (except a
police officer below the rank of Inspector) can
conduct prosecution, if the Magistrate permits
him to do so. Once the permission is granted the
person concerned can appoint any counsel to
conduct the prosecution on his behalf in the
Magistrate’s Court.
11. The old Criminal Procedure Code (1898)
contained an identical provision in Section 270
thereof. A Public Prosecutor means any person
appointed under Section 24 and includes any
person acting under the directions of the Public
Prosecutor,(vide Section 2(u) of the Code).
12. In the backdrop of the above provisions we
have to understand the purport of Section 301 of
the Code. Unlike its succeeding provision in the
Code, the application of which is confined to
magistrate courts, this particular section is
applicable to all the courts of criminal
jurisdiction. This distinction can be discerned
from employment of the words any court in
Section 301. In view of the provision made in the
succeeding section as for magistrate courts the
insistence contained in Section 301(2) must be
understood as applicable to all other courts
without any exception. The first sub-section
empowers the Public Prosecutor to plead in the
court without any written authority, provided he
is in charge of the case. The second sub-section,
which is sought to be invoked by the appellant,
imposes the curb on a counsel engaged by any
private party. It limits his role to act in the court
during such prosecution under the directions of
the Public Prosecutor. The only other liberty
which he can possibly exercise is to submit
written arguments after the closure of evidence in
the trial, but that too can be done only if the
court permits him to do so.”
12. It is apt to note here that in the said decision it has
also been held that from the scheme of CrPC, the legislative
intention is manifestly clear that prosecution in a Sessions
Court cannot be conducted by anyone other than the public
prosecutor. It is because the legislature reminds the State
that the policy must strictly conform to fairness in the trial
of an accused in a Sessions Court. The Court has further
observed that a public prosecutor is not expected to show
the thirst to reach the case in the conviction of the accused
somehow or the other irrespective of the true facts involved
in the case.
13. In J.K. International (supra), a three-Judge Bench
was adverting in detail to Section 302 CrPC. In that context,
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
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.
14. Having carefully perused both the decisions, we do not
perceive any kind of anomaly either in the analysis or
ultimate conclusion arrived by the Court. We may note with
profit that in Shiv Kumar (supra), the Court was dealing
with the ambit and sweep of Section 301 CrPC and in that
context observed that Section 302 CrPC is intended only for
the Magistrate’s Court. In J.K. International (supra) from
the passage we have quoted hereinbefore it is evident that
the Court has expressed the view that a private person can
be permitted to conduct the prosecution in the Magistrate’s
Court and can engage a counsel to do the needful on his
behalf. The further observation therein is that when
permission is sought to conduct the prosecution by a
private person, it is open to the court to consider his
request. The Court has proceeded to state that the Court
has to form an opinion that cause of justice would be best
subserved and it is better to grant such permission. And, it
would generally grant such permission. Thus, there is no
cleavage of opinion.
15. In Sundeep Kumar Bafna (supra), the Court was
dealing with rejection of an order of bail under Section 439
CrPC and what is meant by “custody”. Though the context
was different, it is noticeable that the Court has adverted to
the role of public prosecutor and private counsel in
prosecution and in that regard, has held as follows:-
“… in Shiv Kumar v. Hukam Chand (supra), the
question that was posed before another threeJudge
Bench was whether an aggrieved has a
right to engage its own counsel to conduct the
prosecution despite the presence of the Public
Prosecutor. This Court duly noted that the role
of the Public Prosecutor was upholding the law
and putting together a sound prosecution; and
that the presence of a private lawyer would inexorably
undermine the fairness and impartiality
which must be the hallmark, attribute and
distinction of every proper prosecution. In that
case the advocate appointed by the aggrieved
party ventured to conduct the cross-examination
of the witness which was allowed by the
trial court but was reversed in revision by the
High Court, and the High Court permitted only
the submission of written argument after the
closure of evidence. Upholding the view of the
High Court, this Court went on to observe that
before the Magistrate any person (except a police
officer below the rank of Inspector) could
conduct the prosecution, but that this laxity is
impermissible in the Sessions by virtue of Section
225 CrPC, which pointedly states that the
prosecution shall be conducted by a Public
Prosecutor. …”
16. Mr. Tulsi, learned senior counsel, has drawn
inspiration from the aforesaid authority as Shiv Kumar
(supra) has been referred to in the said judgment and the
Court has made a distinction between the role of the public
prosecutor and the role of a complainant before the two
trials, namely, the sessions trial and the trial before a
Magistrate’s Court.
17. As the factual score of the case at hand is concerned, it
is noticeable that the trial court, on the basis of an oral
prayer, had permitted the appellant to be heard along with
the public prosecutor. Mr. Tulsi, learned senior counsel
submitted such a prayer was made before the trial
Magistrate and he had no grievance at that stage but the
grievance has arisen because of the interference of the High
Court that he can only participate under the directions of
the Assistant Public Prosecutor in charge of the case which
is postulated under Section 301 CrPC.
18. We have already explained the distinction between
Sections 301 and 302 CrPC. The 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.
19. We would have proceeded to deal with the relief prayed
for by Mr. Tulsi but, no application was filed under Section
302 CrPC and, therefore, the prayer was restricted to be
heard which is postulated under Section 301 CrPC. Mr.
Singh, learned senior counsel appearing for the respondents
would contend that an application has to be filed while
seeking permission. Bestowing our anxious consideration,
we are obliged to think 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 in terms of
J.K. International (supra) so that the Magistrate can
exercise the jurisdiction as vested in him and form the
requisite opinion.
20. Mr. Tulsi, learned senior counsel appearing for the
appellant submits that he intends to file an application
before the learned Magistrate and hence, liberty may be
granted. Mr. Singh has seriously opposed the same.
Regard being had to the rivalised submissions, we only
observe that it would be open to the appellant, if so advised,
to file an application under Section 302 CrPC before the
learned Magistrate. It may be clearly stated here that the
said provision applies to every stage including the stage of
framing charge inasmuch 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 filed, 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 filed under Section 302
CrPC. It is also necessary to add that we have not expressed
any opinion on the merits of the application to be filed.
21. The criminal appeal is, accordingly, disposed of.
...............................J.
 [Dipak Misra]
...............................J.
New Delhi, [Adarsh Kumar Goel]
September 06, 2016
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