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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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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