AMIR HAMZA SHAIKH & ORS. versus STATE OF MAHARASHTRA & ANR. on 7 August 2019

1. Leave granted.

2. The challenge in the present appeal is to an order passed by theHigh Court of judicature at Bombay on November 27, 2018 whereby anorder passed by the Magistrate declining permission to respondent No.2 to prosecute the appellants-accused for the offences punishable underSections 498A, 406 read with Section 34 of Indian Penal Code, 1860[1],was allowed.

3. The respondent No. 2 had sought permission to conductprosecution in terms of Section 302 of the Code of Criminal Procedure,1973[2] for the aforesaid offences. The learned Magistrate declinedpermission without giving any reason but the High Court considered thejudgments on the subject and granted permission to conduct prosecutiononly for the reason that the application has been made by an aggrievedparty.

1 for short, ‘IPC

2 for short, ‘Code’.

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A4. Learned counsel for the appellants argued that the High Courtis not required to give permission to prosecute mechanically only for thereason that such permission is sought by an aggrieved party. It iscontended that the prosecution is to be conducted by a Public Prosecutorwho is an officer of the Court and required to assist the Court to dojustice rather than to be vindictive and take side with any of the parties.BIf the party is allowed to proceed to take over the investigation, theavowed object of fairness in the criminal justice dispensation systemshall be shaken.

5. The present Section 302 of the Code is similar to Section 495of the Code of Criminal Procedure, 1898. Section 302 of the CodeCreads as under:

“Permission to conduct prosecution. – (1) Any Magistrateinquiring into or trying a case may permit the prosecution to beconducted by any person other than police officer below the rankof Inspector; but no person, other than the Advocate-General orDGovernment Advocate or a Public Prosecutor or Assistant PublicProsecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conductthe prosecution if he has taken part in the investigation into theoffence with respect to which the accused is being prosecuted.E

(2) Any person conducting the prosecution may do so personallyor by a pleader.”

6. It may be noticed that under Section 301 of the Code, the PublicProsecutor may appear and plead without any authority before any Courtin which that case is under inquiry, trial or appeal and any person mayFinstruct a pleader who shall act under the directions of the PublicProsecutor and may with the permission of the Court submit writtensubmissions.

7. A Division Bench of Kerala High Court in Babu v. State ofKerala[3] examined as to when permission should be granted. The CourtGheld as under:

“3. …In Subhash Chandran v. State of Kerala 1981 KLT CaseNo. 125 a learned Jude of this Court held:

H3 1984 CriL J 499

Whether permission should be granted or not is a matter left tothe discretion of the Court, the discretion being used in a judicialmanner. It is true that the petitioner as the son of the deceasedand as a person who has a right to make out that there wasrashness and negligence on the part of the accused and claimdamages from him may be interested in the prosecution. Butthat fact is not by itself a ground for permitting him to conductthe prosecution in the place of the Assistant Public Prosecutorwho is in charge of the case. It is settled law that where acognisable offence is committed and a prosecution is launchedby the State it is for the Public Prosecutor to attend to theprosecution. The object of a criminal prosecution is not tovindicate the grievances of a private person.

4. Under Section 301, a Pleader engaged by a private person canassist the Public Prosecutor or the Assistant Public Prosecutor asthe case may be in the conduct of the prosecution while underSection 302 the Magistrate may permit the prosecution itself tobe conducted by any person or by a pleader instructed by him.The distinction is when permission under Section 302 is given thePublic Prosecutor or the Assistant Public Prosecutor as the casemay be disappears from the scene and the pleader engaged bythe person who will invariably be the de facto complainant will bein full charge of the prosecution.………………This does notmean that permission cannot at all be granted under Section 302.Under very exceptional circumstances permission can be grantedunder Section 302. Otherwise, there is no reason why the provisionis there in the Code. But that is to be done only in cases where thecircumstances are such that a denial of permission under Section302 will stand in the way of meeting out, justice in the case. Amere apprehension of a party that the Public Prosecutor will notbe serious in conducting the prosecution simply because aconviction or an acquittal in the case will affect another casepending will not by itself be enough. At the same time, if theapprehension of the party is going to materialise the court canpending the trial, grant permission under Section 302 even if arequest for permission was rejected at the outset.”

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A8. This Court in Shiv Kumar v. Hukam Chand & Anr.[4] hasexamined the distinction between the scope of Section 301 and 302 ofthe Code. It has been held that Section 302 of the Code is applicable inrespect of the offences triable by Magistrate. It enables the Magistrateto permit any person to conduct the prosecution whereas in terms ofSection 301 of the Code, any private person may instruct a pleader toBact under the directions of the Public Prosecutor or Assistant PublicProsecutor in any trial before any court and to submit written argumentsafter the close of the evidence. This Court held as under:

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“12. In the backdrop of the above provisions we have to understandthe purport of Section 301 of the Code. Unlike its succeedingCprovision in the Code, the application of which is confined toMagistrate Courts, this particular section is applicable to all thecourts of criminal jurisdiction. This distinction can be discernedfrom employment of the words “any court” in Section 301. Inview of the provision made in the succeeding section as forDMagistrate Courts the insistence contained in Section 301(2) mustbe understood as applicable to all other courts without anyexception. The first sub-section empowers the Public Prosecutorto plead in the court without any written authority, provided he isin charge of the case. The second sub-section, which is sought tobe invoked by the appellant, imposes the curb on a counsel engaged E

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by any private party. It limits his role to act in the court duringsuch prosecution “under the directions of the Public Prosecutor”.The only other liberty which he can possibly exercise is to submitwritten arguments after the closure of evidence in the trial, butthat too can be done only if the court permits him to do so.

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13. From the scheme of the Code the legislative intention ismanifestly clear that prosecution in a Sessions Court cannot beconducted by anyone other than the Public Prosecutor. Thelegislature reminds the State that the policy must strictly conformto fairness in the trial of an accused in a Sessions Court. A PublicGProsecutor is not expected to show a thirst to reach the case inthe conviction of the accused somehow or the other irrespectiveof the true facts involved in the case. The expected attitude of thePublic Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agenciesbut to the accused as well. If an accused is entitled to any legitimatebenefit during trial the Public Prosecutor should not scuttle/concealit. On the contrary, it is the duty of the Public Prosecutor to winchit to the fore and make it available to the accused. Even if thedefence counsel overlooked it, the Public Prosecutor has the addedresponsibility to bring it to the notice of the court if it comes to hisknowledge. A private counsel, if allowed a free hand to conductprosecution would focus on bringing the case to conviction evenif it is not a fit case to be so convicted. That is the reason whyParliament applied a bridle on him and subjected his role strictlyto 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 Sections420, 406 and 120-B IPC were investigated and charge sheet filed on thebasis of complaint of the appellant, the accused filed a petition for quashingof the charges in which the complainant wanted to be heard. The PublicProsecutor filed an application before the Magistrate for amending thecharge for incorporating two more offences which were exclusivelytriable by the Court of Sessions. The Magistrate dismissed the applicationbut the said order was not challenged by the prosecution. It was heldthat the scheme in the Code indicates that the person who is aggrievedby the offence committed is not altogether wiped out from the scene ofthe trial merely because the investigation was taken over by the police.This Court while considering the provisions of sub-section (2) of Section301 and Section 302, held as under:

“9. The scheme envisaged in the Code of Criminal Procedureindicates that a person who is aggrieved by the offence committed,is not altogether wiped out from the scenario of the trial merelybecause the investigation was taken over by the police and thecharge-sheet was laid by them. Even the fact that the court hadtaken cognizance of the offence is not sufficient to debar himfrom reaching the court for ventilating his grievance. Even in theSessions Court, where the Public Prosecutor is the only authorityempowered to conduct the prosecution as per Section 225 of theCode, a private person who is aggrieved by the offence involved AB

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in the case is not altogether debarred from participating in thetrial. This can be discerned from Section 301(2) of the Code whichreads thus:

“301. (2) If in any such case any private person instructs apleader to prosecute any person in any court, the PublicProsecutor or Assistant Public Prosecutor in charge of thecase shall conduct the prosecution, and the pleader so instructedshall act therein under the directions of the Public Prosecutoror Assistant Public Prosecutor, and may, with the permissionof the court, submit written arguments after the evidence isclosed in the case.”

10. The said provision falls within the Chapter titled “GeneralProvisions as to Inquiries and Trials”. When such a role is permit-ted 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 pri-vate person, if he is aggrieved, is not wiped off from the proceed-ings in the criminal court merely because the case was charge-sheeted by the police. It has to be stated further, that the court isgiven power to permit even such private person to submit hiswritten arguments in the court including the Sessions Court. If hesubmits any such written arguments the court has a duty to con-sider such arguments before taking a decision.

11. In view of such a scheme as delineated above how can it besaid that the aggrieved private person must keep himself outsidethe corridors of the court when the case involving his grievanceregarding the offence alleged to have been committed by the per-sons arrayed as accused is tried or considered by the court. Inthis context it is appropriate to mention that when the trial is be-fore a Magistrate’s Court the scope of any other private personintending to participate in the conduct of the prosecution is stillwider…

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12. The private person who is permitted to conduct prosecution inthe Magistrate’s Court can engage a counsel to do the needful inthe court in his behalf. It further amplifies the position that if aprivate person is aggrieved by the offence committed against himor against anyone in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution byhimself. It is open to the court to consider his request. If the courtthinks that the cause of justice would be served better by grantingsuch 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 conductof prosecution in the Sessions Court is very much restricted andis made subject to the control of the Public Prosecutor. The lim-ited role which a private person can be permitted to play for pros-ecution in the Sessions Court has been adverted to above. Allthese would show that an aggrieved private person is not alto-gether to be eclipsed from the scenario when the criminal courttakes cognizance of the offences based on the report submittedby the police. The reality cannot be overlooked that the genesis inalmost all such cases is the grievance of one or more individualthat they were wronged by the accused by committing offencesagainst them.”

10. Both the aforesaid judgments came up for consideration beforethis Court in Dhariwal Industries Limited v. Kishore Wadhwani &Ors.[6] wherein the learned Magistrate had held that the complainant isnot alien to the proceeding and, therefore, he has a right to be heardeven at the stage of framing of charge. The High Court modified theorder and permitted the counsel engaged by the complainant to act underthe directions of the Public Prosecutor in charge of the case. The Courtheld as under:

“13. Having carefully perused both the decisions, we do notperceive any kind of anomaly either in the analysis or ultimateconclusion arrived at by the Court. We may note with profit thatin Shiv Kumar [Shiv Kumar v. Hukam Chand, (1999) 7 SCC467 : 1999 SCC (Cri) 1277] , the Court was dealing with the ambitand sweep of Section 301 CrPC and in that context observed thatSection 302 CrPC is intended only for the Magistrate’s Court. InJ.K. International [J.K. International v. State (Govt. of NCTof Delhi), (2001) 3 SCC 462 : 2001 SCC (Cri) 547] from thepassage we have quoted hereinbefore it is evident that the Courthas expressed the view that a private person can be permitted to AB

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606SUPREME COURT REPORTS

Aconduct the prosecution in the Magistrate’s Court and can engagea counsel to do the needful on his behalf. The further observationtherein is that when permission is sought to conduct the prosecutionby 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 anopinion that cause of justice would be best subserved and it isBbetter to grant such permission. And, it would generally grant suchpermission. Thus, there is no cleavage of opinion.”

11. In Mallikarjun Kodagali (Dead) represented through LRsv. State of Karnataka & Ors.[7], three Judge Bench of this Courtconsidered the victim’s right to file an appeal in terms of proviso toCSection 372 inserted by Central Act No. 5 of 2009 w.e.f. December 31,2009. This Court considered 154[th] Report of the Law Commission ofIndia submitted on August 14, 1996; the Report of the Committee onReforms of Criminal Justice System commonly known as the Report ofthe Justice Malimath Committee; Draft National Policy on Criminal JusticeDof July, 2007 known as the Professor Madhava Menon Committee and221[st] Report of the Law Commission of India, April, 2009, and observedas under:

“5. Parliament also has been proactive in recognising the rightsof victims of an offence. One such recognition is through theEprovisions of Chapter XXI-A CrPC which deals with pleabargaining. Parliament has recognised the rights of a victim toparticipate in a mutually satisfactory disposition of the case. Thisis a great leap forward in the recognition of the right of a victim toparticipate in the proceedings of a non-compoundable case.Similarly, Parliament has amended CrPC introducing the right ofFappeal to the victim of an offence, in certain circumstances. Thepresent appeals deal with this right incorporated in the proviso toSection 372 CrPC.

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G8. The rights of victims, and indeed victimology, is an evolvingjurisprudence and it is more than appropriate to move forward ina positive direction, rather than stand still or worse, take a stepbackward. A voice has been given to victims of crime byParliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel sothat it is clearly heard.”

12. The Court dealt with Justice Malimath Committee in thefollowing manner:

“16. Thereafter, in the substantive Chapter on Justice to Victims,it is noted that victims of crime, in many jurisdictions, have theright to participate in the proceedings and to receive compensationfor injury suffered. It was noted as follows:

“6.3. Basically two types of rights are recognised in manyjurisdictions, particularly in continental countries in respect ofvictims of crime. They are, firstly, the victim’s right toparticipate in criminal proceedings (right to be impleaded, rightto know, right to be heard and right to assist the court in thepursuit of truth) and secondly, the right to seek and receivecompensation from the criminal court itself for injuries sufferedas well as appropriate interim reliefs in the course ofproceedings.””

13. In J.K. International, it has been held that if the cause ofjustice would be better served by granting such permission, theMagistrate’s court would generally grant such permission. An aggrievedprivate person is not altogether eclipsed from the scenario when thecriminal court take cognizance of the offences based on the reportsubmitted by the police.

14. In Mallikarjun Kodagali, this Court approved the JusticeMalimath Committee, wherein the victim’s right to participate in thecriminal 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 hadbeen recognised.

15. In view of such principles laid down, we find that though theMagistrate is not bound to grant permission at the mere asking but thevictim has a right to assist the Court in a trial before the Magistrate. TheMagistrate may consider as to whether the victim is in a position toassist the Court and as to whether the trial does not involve suchcomplexities which cannot be handled by the victim. On satisfaction ofsuch facts, the Magistrate would be within its jurisdiction to grant of A

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Apermission to the victim to take over the inquiry of the pendency beforethe Magistrate.

16. We find that the High Court has granted permission to thecomplainant to prosecute the trial without examining the parameters laiddown hereinabove. Therefore, we set aside the order passed by theBHigh Court and that of the Magistrate. The matter is remitted to theMagistrate to consider as to whether the complainant should be grantedpermission to prosecute the offences under Sections 498-A, 406 readwith Section 34 IPC. The appeal is allowed.

CAnkit Gyan

Appeal allowed.

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