DHARIWAL INDUSTRIES LTD. Vs KISHORE WADHWANI .
Bench: DIPAK MISRA,ADARSH KUMAR GOEL
Case number: Crl.A. No.-000859-000859 / 2016
Diary number: 20865 / 2012
Advocates: PAREKH & CO. Vs
PRIYA PURI
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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. …Appellant
VERSUS
Kishore Wadhwani & Ors. …Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
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
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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
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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
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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's1 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
1 Anthony D’Souza v. Mrs. Radhabai Brij Ratan Mohatta, 1984 (1) BC.R. 157
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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 others2 and Sundeep
Kumar Bafna v. State of Maharashtra and another3.
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
2 (2001) 3 SCC 462 3 (2014) 16 SCC 623
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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 another4 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:-
4 (1999) 7 SCC 467
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“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.
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xxx xxx xxx
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
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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
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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
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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 three- Judge 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 in- exorably undermine the fairness and impartial- ity 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-examina- tion 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 po- lice officer below the rank of Inspector) could conduct the prosecution, but that this laxity is impermissible in the Sessions by virtue of Sec- tion 225 CrPC, which pointedly states that the
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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
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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
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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