Sunday, 11 August 2019

Whether Magistrate should allow victim to conduct prosecution in criminal proceeding?

 In Mallikarjun Kodagali, this Court approved the Justice Malimath
Committee, wherein the victim’s right to participate in the criminal

proceedings which includes right to be impleaded, right to know,
right to be heard and right to assist the court in the pursuit of truth
had been recognised.
15) In view of such principles laid down, we find that though the
Magistrate is not bound to grant permission at the mere asking but
the victim has a right to assist the Court in a trial before the
Magistrate. The Magistrate may consider as to whether the victim
is in a position to assist the Court and as to whether the trial does
not involve such complexities which cannot be handled by the
victim. On satisfaction of such facts, the Magistrate would be
within its jurisdiction to grant of permission to the victim to take
over the inquiry of the pendency before the Magistrate.
16) We find that the High Court has granted permission to the
complainant to prosecute the trial without examining the
parameters laid down hereinabove. Therefore, we set aside the
order passed by the High Court and that of the Magistrate. The
matter is remitted to the Magistrate to consider as to whether the
complainant should be granted permission to prosecute the
offences under Sections 498-A, 406 read with Section 34 IPC. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1217 OF 2019

AMIR HAMZA SHAIKH  Vs  STATE OF MAHARASHTRA 

HEMANT GUPTA, J.
Dated:AUGUST 07, 2019.



1) Leave granted.
2) The challenge in the present appeal is to an order passed by the
High Court of judicature at Bombay on November 27, 2018
whereby an order passed by the Magistrate declining permission to
respondent No. 2 to prosecute the appellants-accused for the
offences punishable under Sections 498A, 406 read with Section 34
of Indian Penal Code, 18601, was allowed.
3) The respondent No. 2 had sought permission to conduct
prosecution in terms of Section 302 of the Code of Criminal
Procedure, 19732 for the aforesaid offences. The learned
Magistrate declined permission without giving any reason but the
1 for short, ‘IPC’
2 for short, ‘Code’.

High Court considered the judgments on the subject and granted
permission to conduct prosecution only for the reason that the
application has been made by an aggrieved party.
4) Learned counsel for the appellants argued that the High Court is
not required to give permission to prosecute mechanically only for
the reason that such permission is sought by an aggrieved party. It
is contended that the prosecution is to be conducted by a Public
Prosecutor who is an officer of the Court and required to assist the
Court to do justice rather than to be vindictive and take side with
any of the parties. If the party is allowed to proceed to take over
the investigation, the avowed object of fairness in the criminal
justice dispensation system shall be shaken.
5) The present Section 302 of the Code is similar to Section 495 of the
Code of Criminal Procedure, 1898. Section 302 of the Code reads
as under:
“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.”
6) It may be noticed that under Section 301 of the Code, the Public
Prosecutor may appear and plead without any authority before any
Page 2 of 11
Court in which that case is under inquiry, trial or appeal and any
person may instruct a pleader who shall act under the directions of
the Public Prosecutor and may with the permission of the Court
submit written submissions.
7) A Division Bench of Kerala High Court in Babu v. State of Kerala3
examined as to when permission should be granted. The Court
held as under:
“3. …In Subhash Chandran v. State of Kerala 1981
KLT Case No. 125 a learned Jude of this Court held:
Whether permission should be granted or not is a
matter left to the discretion of the Court, the
discretion being used in a judicial manner. It is
true that the petitioner as the son of the
deceased and as a person who has a right to
make out that there was rashness and negligence
on the part of the accused and claim damages
from him may be interested in the prosecution.
But that fact is not by itself a ground for
permitting him to conduct the prosecution in the
place of the Assistant Public Prosecutor who is in
charge of the case. It is settled law that where a
cognisable offence is committed and a
prosecution is launched by the State it is for the
Public Prosecutor to attend to the prosecution.
The object of a criminal prosecution is not to
vindicate the grievances of a private person.
4. Under Section 301, a Pleader engaged by a private
person can assist the Public Prosecutor or the Assistant
Public Prosecutor as the case may be in the conduct of
the prosecution while under Section 302 the Magistrate
may permit the prosecution itself to be conducted by
any person or by a pleader instructed by him. The
distinction is when permission under Section 302 is
given the Public Prosecutor or the Assistant Public
Prosecutor as the case may be disappears from the
scene and the pleader engaged by the person who will
invariably be the de facto complainant will be in full
charge of the prosecution.………………This does not
3 1984 CriLJ 499
Page 3 of 11
mean that permission cannot at all be granted under
Section 302. Under very exceptional circumstances
permission can be granted under Section 302.
Otherwise, there is no reason why the provision is there
in the Code. But that is to be done only in cases where
the circumstances are such that a denial of permission
under Section 302 will stand in the way of meeting out,
justice in the case. A mere apprehension of a party that
the Public Prosecutor will not be serious in conducting
the prosecution simply because a conviction or an
acquittal in the case will affect another case pending
will not by itself be enough. At the same time, if the
apprehension of the party is going to materialise the
court can pending the trial, grant permission under
Section 302 even if a request for permission was
rejected at the outset.”
8) This Court in Shiv Kumar v. Hukam Chand & Anr.4 has examined
the distinction between the scope of Section 301 and 302 of the
Code. It has been held that Section 302 of the Code is applicable in
respect of the offences triable by Magistrate. It enables the
Magistrate to permit any person to conduct the prosecution
whereas in terms of Section 301 of the Code, any private person
may instruct a pleader to act under the directions of the Public
Prosecutor or Assistant Public Prosecutor in any trial before any
court and to submit written arguments after the close of the
evidence. This Court held as under:
“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
4 (1999) 7 SCC 467
Page 4 of 11
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 subsection,
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.
13. From the scheme of the Code the legislative
intention is manifestly clear that prosecution in a
Sessions Court cannot be conducted by anyone other
than the Public Prosecutor. The legislature reminds the
State that the policy must strictly conform to fairness in
the trial of an accused in a Sessions Court. A Public
Prosecutor is not expected to show a thirst to reach the
case in the conviction of the accused somehow or the
other irrespective of the true facts involved in the case.
The expected attitude of the Public Prosecutor while
conducting prosecution must be couched in fairness not
only to the court and to the investigating agencies but
to the accused as well. If an accused is entitled to any
legitimate benefit during trial the Public Prosecutor
should not scuttle/conceal it. On the contrary, it is the
duty of the Public Prosecutor to winch it to the fore and
make it available to the accused. Even if the defence
counsel overlooked it, the Public Prosecutor has the
added responsibility to bring it to the notice of the court
if it comes to his knowledge. A private counsel, if
allowed a free hand to conduct prosecution would focus
on bringing the case to conviction even if it is not a fit
case to be so convicted. That is the reason why
Parliament applied a bridle on him and subjected his
role strictly to the instructions given by the Public
Prosecutor.”
9) In a three Judge Bench of this Court in J.K. International v. State
(Govt. of NCT of Delhi) & Ors.5, where offences under Sections
420, 406 and 120-B IPC were investigated and charge sheet filed
5 (2001) 3 SCC 462
Page 5 of 11
on the basis of complaint of the appellant, the accused filed a
petition for quashing of the charges in which the complainant
wanted to be heard. The Public Prosecutor filed an application
before the Magistrate for amending the charge for incorporating
two more offences which were exclusively triable by the Court of
Sessions. The Magistrate dismissed the application but the said
order was not challenged by the prosecution. It was held that the
scheme in the Code indicates that the person who is aggrieved by
the offence committed is not altogether wiped out from the scene
of the trial merely because the investigation was taken over by the
police. This Court while considering the provisions of sub-section
(2) of Section 301 and Section 302, held as under:
“9. The scheme envisaged in the Code of Criminal
Procedure indicates that a person who is aggrieved by
the offence committed, is not altogether wiped out
from the scenario of the trial merely because the
investigation was taken over by the police and the
charge-sheet was laid by them. Even the fact that the
court had taken cognizance of the offence is not
sufficient to debar him from reaching the court for
ventilating his grievance. Even in the Sessions Court,
where the Public Prosecutor is the only authority
empowered to conduct the prosecution as per Section
225 of the Code, a private person who is aggrieved by
the offence involved in the case is not altogether
debarred from participating in the trial. This can be
discerned from Section 301(2) of the Code which reads
thus:
“301. (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
Page 6 of 11
arguments after the evidence is closed in the
case.”
10. The said provision falls within the Chapter titled
“General Provisions as to Inquiries and Trials”. When
such a role is permitted to be played by a private
person, though it is a limited role, even in the Sessions
Courts, that is enough to show that the private person,
if he is aggrieved, is not wiped off from the
proceedings in the criminal court merely because the
case was charge-sheeted by the police. It has to be
stated further, that the court is given power to permit
even such private person to submit his written
arguments in the court including the Sessions Court. If
he submits any such written arguments the court has
a duty to consider such arguments before taking a
decision.
11. In view of such a scheme as delineated above
how can it be said that the aggrieved private person
must keep himself outside the corridors of the court
when the case involving his grievance regarding the
offence alleged to have been committed by the
persons arrayed as accused is tried or considered by
the court. In this context it is appropriate to mention
that when the trial is before a Magistrate's Court the
scope of any other private person intending to
participate in the conduct of the prosecution is still
wider…
xx xx xx
12. 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. It
further amplifies the position that if a private person is
aggrieved by the offence committed against him or
against anyone in whom he is interested he can
approach the Magistrate and seek permission to
conduct the prosecution by himself. It is open to the
court to consider his request. If the court thinks that
the cause of justice would be served better by
granting such permission the court would generally
grant such permission. Of course, this wider amplitude
is limited to Magistrates' Courts, as the right of such
private individual to participate in the conduct of
prosecution in the Sessions Court is very much
Page 7 of 11
restricted and is made subject to the control of the
Public Prosecutor. The limited role which a private
person can be permitted to play for prosecution in the
Sessions Court has been adverted to above. All these
would show that an aggrieved private person is not
altogether to be eclipsed from the scenario when the
criminal court takes cognizance of the offences based
on the report submitted by the police. The reality
cannot be overlooked that the genesis in almost all
such cases is the grievance of one or more individual
that they were wronged by the accused by committing
offences against them.”
10) Both the aforesaid judgments came up for consideration before this
Court in Dhariwal Industries Limited v. Kishore Wadhwani &
Ors.6 wherein the learned Magistrate had held that the
complainant is not alien to the proceeding and, therefore, he has a
right to be heard even at the stage of framing of charge. The High
Court modified the order and permitted the counsel engaged by
the complainant to act under the directions of the Public Prosecutor
in charge of the case. The Court held as under:
“13. Having carefully perused both the decisions, we
do not perceive any kind of anomaly either in the
analysis or ultimate conclusion arrived at by the Court.
We may note with profit that in Shiv Kumar [Shiv
Kumar v. Hukam Chand, (1999) 7 SCC 467 : 1999 SCC
(Cri) 1277] , 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 [J.K.
International v. State (Govt. of NCT of Delhi), (2001) 3
SCC 462 : 2001 SCC (Cri) 547] 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
6 (2016) 10 SCC 378
Page 8 of 11
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.”
11) In Mallikarjun Kodagali (Dead) represented through LRs v.
State of Karnataka & Ors.7, three Judge Bench of this Court
considered the victim’s right to file an appeal in terms of proviso to
Section 372 inserted by Central Act No. 5 of 2009 w.e.f. December
31, 2009. This Court considered 154th Report of the Law
Commission of India submitted on August 14, 1996; the Report of
the Committee on Reforms of Criminal Justice System commonly
known as the Report of the Justice Malimath Committee; Draft
National Policy on Criminal Justice of July, 2007 known as the
Professor Madhava Menon Committee and 221st Report of the Law
Commission of India, April, 2009, and observed as under:
“5. Parliament also has been proactive in recognising
the rights of victims of an offence. One such
recognition is through the provisions of Chapter XXI-A
CrPC which deals with plea bargaining. Parliament has
recognised the rights of a victim to participate in a
mutually satisfactory disposition of the case. This is a
great leap forward in the recognition of the right of a
victim to participate in the proceedings of a noncompoundable
case. Similarly, Parliament has
amended CrPC introducing the right of appeal to the
victim of an offence, in certain circumstances. The
present appeals deal with this right incorporated in the
proviso to Section 372 CrPC.
xx xx xx
8. The rights of victims, and indeed victimology, is an
7 (2019) 2 SCC 752
Page 9 of 11
evolving jurisprudence and it is more than appropriate
to move forward in a positive direction, rather than
stand still or worse, take a step backward. A voice has
been given to victims of crime by Parliament and the
judiciary and that voice needs to be heard, and if not
already heard, it needs to be raised to a higher decibel
so that it is clearly heard.”
12) The Court dealt with Justice Malimath Committee in the following
manner:
“16. Thereafter, in the substantive Chapter on Justice
to Victims, it is noted that victims of crime, in many
jurisdictions, have the right to participate in the
proceedings and to receive compensation for injury
suffered. It was noted as follows:
“6.3. Basically two types of rights are
recognised in many jurisdictions, particularly
in continental countries in respect of victims
of crime. They are, firstly, the victim's right to
participate in criminal proceedings (right to
be impleaded, right to know, right to be
heard and right to assist the court in the
pursuit of truth) and secondly, the right to
seek and receive compensation from the
criminal court itself for injuries suffered as
well as appropriate interim reliefs in the
course of proceedings.””
13) In J.K. International, it has been held that if the cause of justice
would be better served by granting such permission, the
Magistrate’s court would generally grant such permission. An
aggrieved private person is not altogether eclipsed from the
scenario when the criminal court take cognizance of the offences
based on the report submitted by the police.
14) In Mallikarjun Kodagali, this Court approved the Justice Malimath
Committee, wherein the victim’s right to participate in the criminal

proceedings which includes right to be impleaded, right to know,
right to be heard and right to assist the court in the pursuit of truth
had been recognised.
15) In view of such principles laid down, we find that though the
Magistrate is not bound to grant permission at the mere asking but
the victim has a right to assist the Court in a trial before the
Magistrate. The Magistrate may consider as to whether the victim
is in a position to assist the Court and as to whether the trial does
not involve such complexities which cannot be handled by the
victim. On satisfaction of such facts, the Magistrate would be
within its jurisdiction to grant of permission to the victim to take
over the inquiry of the pendency before the Magistrate.
16) We find that the High Court has granted permission to the
complainant to prosecute the trial without examining the
parameters laid down hereinabove. Therefore, we set aside the
order passed by the High Court and that of the Magistrate. The
matter is remitted to the Magistrate to consider as to whether the
complainant should be granted permission to prosecute the
offences under Sections 498-A, 406 read with Section 34 IPC. The
appeal is allowed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
AUGUST 07, 2019.

Print Page

No comments:

Post a Comment