Answer: Let us examine the legal provisions first:
a. Victim – section 2(wa) of Cr.P.C – This clause was inserted through ‘The Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009 – section 2 in this Act – w.e.f. 31-12-2009).
b. Sections. 2(u)(wa), 24 & 25, 301, 302 and 225 Cr.P.C.
Author’s note: My senior Thiru. S. Ragunathan always says read the section as it is, understand the sections as it is and express the section as it is.
kindly read this article as a part and parcel of this post: DRAFTSMEN INTENTION BEHIND SECTIONS 301 & 302 Cr.P.C – Section 1
QUESTION NO.1: JUDGMENTS IN THIS SUBJECT AS FOLLOWS
1. CONCEPT OF INTERVENER IN BAIL APPLICATION
There is no provision in the Cr.P.C which enables a third party to get himself impleaded in the proceedings before the criminal court. We have only S – 301 Cr.P.C, which enables the private parties to assist the prosecution and also submit written arguments with the leave of the court. According to S – 301 Cr.P.C, such assistance is to be given at the inquiry, trial or appeal in a criminal case. By “intervention” it is understood that a party who is in possession of facts may appear before the court as an intervener and make his submission on the matter in issue. In such cases, such a party is shown as intervener in the proceedings before the court. [P.S. Saravanabhavanandam and Ors. vs S. Murugaiyyan and Ors – 1986-LW(Crl)165 – Cr. M.Ps. Nos. 9167 of 1985 and 16 of 1986 – 17.02.1986 – MADHC].
Provision u/s – 24(8) & 301 Cr.P.C are mutually complimentary and not conflicting with each other and there is no bar for engaging a lawyer to assist prosecution – victim has every right to take part in prosecution – procedure law will have to provide a method for dispensation of justice by which truth emerges – procedural law will be in aid of justice delivery system. [Sathyavani Ponrani vs. Samuel Raj & Another [M.M.Sundresh. J] – 2010(4) CTC 833]
SECTION 301 Cr.P.C – ELEMENTS
Sub-section (1) of Section 301 stipulates that the Public Prosecutor or the Assistant Public Prosecutor in charge of a case may appear without written authority before any court in which the case is under inquiry, trial or appeal. Sub-section (2) of Section 301 postulates that if 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 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. [Varsha Garg vs. The State of Madhya Pradesh and Ors. (Criminal Appeal No. 1021 of 2022 – 08.08.2022 – SC) – 2022/INSC/807].
2. ROLE OF THIR PARTY
a. There is no provision to get the third party implead in a criminal proceeding; and
b. At the same time, the third party can be permitted to assist the Public Prosecutor in the matter of prosecuting the evidence and in which case section 301 gives the third party a light to assist the prosecution and also to submit a written argument. [S.Dharmar and others vs. State – 1986 MLJ (Cri) 79 (Vol-30)].
3. WHAT IS THE ROLE OF THE ‘PRIVATE PERSON’ IN CRIMINAL TRIAL?
Supreme Court held that in the backdrop of the Provision under sections 225, 24(8), and 2(u) of the Cr.P.C 1973, 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 Cr.P.C. In view of the provision made in the succeeding section as for Magistrate court the insistence contained in section 301(2) Cr.P.C must be understood as applicable to all other courts without any exception. The first 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 possible exercise is to submit written arguments after closure of evidence in the trial, but that too can be done only if the Court permits him to do so. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel if permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps comparable with that of Junior Advocate conducting the case of his senior in a Court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in section 225 of the Code a dead letter. [Shivkumar v. Hukum Chand – (1999)7 SCC 467=(1999) SCC (Cri) 1277].
IN SESSIONS COURT
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, 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 freehand 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 a reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor. [Shivkumar v. Hukum Chand – (1999)7 SCC 467=(1999) SCC (Cri) 1277].
4. WHETHER PROSECUTOR’S PERMISSION IS NECESSARY TO ALLOW THE PETITION?
Though the assisting of prosecution by the private party in a court of sessions is not banned, it is certainly, restricted in view of section. 225 of the code and even such restricted assistance will be subject to the control of the public prosecutor which means, unless and until the prosecution side permitting the private party to assist the prosecution, the private party’s plea to assist the prosecution would not normally be accepted by the court of sessions. [D.Durauraj vs. State of T.N – 2017 (3) MWN (Crl) 448 (Mad)].
5. VICTIM’S COUNSEL CAN BRING THE ISSUES TO THE NOTICE OF THE COURT (IF PROSECUTION FAILS TO DO):
At the same time, the realities of criminal prosecutions, as they are conducted today, cannot be ignored. There is no denying that Public Prosecutors are often overworked. In certain places, there may be a single Public Prosecutor conducting trials in over 2-3 courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victim-centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the Appellant that the introduction of the proviso to Section 24(8) acts as a safety valve, inasmuch as the victim’s counsel can make up for any oversights or deficiencies in the prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Section 372 of the Code of Criminal Procedure is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim’s counsel while assisting the prosecution. However, while doing so, the balance inherent in the scheme of the Code of Criminal Procedure should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted. In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses. As stated in Section 301(2), the private party’s pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim’s counsel under the proviso to Section 24(8), as it adequately ensures that the interests of the victim are represented. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the Code of Criminal Procedure, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim’s counsel. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers Under Section 311 of the Code of Criminal Procedure or Section 165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura (supra) that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself. [Rekha Murarka vs. The State of West Bengal and Ors – Criminal Appeal No. 1727 of 2019 – 20.11.2019 – SC – AIR 2020 SC 100 – 2019/INSC/1269]
SECTION 301(2) Cr.P.C – DISCHARGE
The next important question to be decided is at what stage the petitioner can be permitted to assist the prosecution. The answer to that question is that, the petitioner can be permitted to assist the prosecution only during the course of trial and not before that. He cannot assist in the discharge petition. [H.Sathak Ahmed Shaw vs The Inspector of Police, J-9, Thuraipakkam Police Station, Kancheepuram District – Criminal Revision Case Nos. 684 and 922 of 2015 – 16-10-2015].
SECTION 301(2) Cr.P.C – DURING TRIAL
Hence, on an application being made by the victims of the offence or their legal heirs, legal services could have been provided to them by appointing advocates, who could have assisted the Criminal Courts in terms of Sub-section (2) of Section 301 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) during the course of trials [Shakeel Ahmed vs. Union of India (UOI) and Ors – W. P. (Civ) No. 182 of 2001 – 04.11.2022 – SC= 2022/INSC/1162].
6. SECTION 301(2) Cr.P.C – APPEAL
Considering the arguments of the learned counsel for the appellant as well as the learned Public Prosecutor and the learned counsel for the intervener, it is seen that the only circumstance under which the private person can intervene in any criminal case is as provided for under Section 301 of the Cr. P. C. As held by the Calcutta High Court and by the Supreme Court, (as per the judgment referred above, the private person has no right of audience except to assist the prosecution and to file a written argument during trial. That right is available only during the trial. Even assuming for the sake of argument that an appeal is a continuation of trial, that right would be available only at the time of final argument of the appeal to submit written argument. Therefore, at this stage namely, the suspension of execution of sentence, the private party has no right of audience; since there is no scope for furnishing any new material. Therefore, the learned counsel for the intervener cannot be heard in this petition. At the most he can assist the prosecution and submit written arguments at the stage of final hearing of the appeal. [Srinath Prasad vs State – 2004 CriLJ 3635 (Mad)].
7. SECTION 301 Cr.P.C – VICTIM – RIGHT TO BE HEARD
It is clear from the above judgments that the role of an 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 the Public Prosecutor. The victim/de-facto complainant has the 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 pursuit of truth. This right has been recognized by both the above judgments passed by the Hon’ble Supreme court. [Amir Hamza Shaikh & ors vs. State of Maharashtra & anr – Crl.Apl No: 1217 of 2019 – dt: 7.8.2019 – (2019)3 MLJ (crl) 579 following Sivasubramanian vs. The State of Tamil Nadu, rep. by its secretary to Government, Legal Department, Secretariat, Chennai – W.P (MD) NO. 21119 of 2019 – dt:01.10.2019].
SECTION 301 Cr.P.C – VICTIM RIGHTS – STATE MUST PROVIDE ADVOCATE FOR THE VICTIM IN STATE’S EXPENSE
Our view is in line with the observations made by a three-Judges Bench of this Court in Jagjeet Singh And Others v. Ashish Mishra Alias Monu and Anr – (2022) 9 SCC 321 wherein speaking for the Bench, Justice Suryakant made the following pertinent observations relating to the victim’s right to be heard and alluding to the recommendations made by the Law Commission of India in its 154th Report that highlighted “the right of the victim or his/her legal representative to be impleaded as a party in every criminal proceedings where the charges are punishable with 7 years’ imprisonment or more”, observed thus:
It was further recommended that the victim be armed with a right to be represented by an advocate of his/her choice, and if he/she is not in a position to afford the same, to provide an advocate at the State’s expense. The victim’s right to participate in criminal trial and his/her right to know the status of investigation, and take necessary steps, or to be heard at every crucial stage of the criminal proceedings, including at the time of grant or cancellation of bail, were also duly recognised by the Committee. Repeated judicial intervention, coupled with the recommendations made from time to time as briefly noticed above, prompted Parliament to bring into force the Code of Criminal Procedure (Amendment) Act, 2008, which not only inserted the definition of a “victim” Under Section 2(wa) but also statutorily recognised various rights of such victims at different stages of trial. It is pertinent to mention that the legislature has thoughtfully given a wide and expansive meaning to the expression “victim” which “means a person who has suffered any loss or injury caused by reason of the act or omission for which the Accused person has been charged and the expression “victim” includes his or her guardian or legal heir [Jagjeet Singh And Others vs. Ashish Mishra Alias Monu and Anr – (2022) 9 SCC 321 followed in X vs. The State of Maharashtra and Ors. Criminal Appeals No. 822-823 of 2023 – 17.03.2023 – SC – 2023/INSC/252].
SECTION 302 – COMPLALINT ABOUT THE PROSECUTOR IS MUST
It is pertinent to note that any person invoking Section 302 Cr.P.C. has to complain about inadequate prosecution by the Assistant Public Prosecutor and on filing of such application, the Magistrate is required to consider such request and to pass appropriate orders. In criminal cases, generally, the Public Prosecutor or Assistant Public Prosecutor should be in charge of the conduction of the proceedings and the defacto complainant cannot have any right to participate in the trial proceedings and the only restricted or limited exception available in the Code of Criminal Procedure is Section 301(2) Cr.P.C. Even if the Court grants permission to the defacto complainant to appoint a counsel to assist the prosecution, the role of that counsel is very much limited and the control of the prosecution is still in the hands of the Public Prosecutor/Assistant Public Prosecutor, as the case may be and that the responsibility to conduct the prosecution continues to be with the Assistant Public Prosecutor despite the permission granted under Section 301(2) Cr.P.C. and the above section does not contemplate any other power or any authority for the counsel, who is allowed to assist the prosecution. [Joseph Jayaseelan vs. The State and Ors – Crl. R.C. (MD) No. 443 of 2023 (02.06.2023 – MADHC)].
Section 302 Cr.P.C – CONTINUATION OF PROCEEDINGS IN THE DEATH OF THE COMPLAINANT
Section 302 Cr.P.C – CONTINUE PROSECUTION BY THE HEIRS OF THE COMPLAINANT
It was held and well settled by the Supreme Court [Rahida Kamaluddin Syed v. Shaikh Saheblal Mardan – 2007 AIR SCW 2258 following Jimmy Jahangir Madan vs. Bolly Cariyappa Hindley – 2004 AIR SCW 6248 and Ashmwin Nanubhai vyas vs. State of Maharashtra & another – (1967) 1 SCR 807=AIR 1967 SC 983] that a person other than a complainant could continue prosecution. The question as to whether heirs of the complainant can be allowed to file an application under section 302 Cr.P.C to continue the prosecution is no longer res-integra [New thing / untouched – source: http://www.law-dictionary.org/RES+INTEGRA.asp?Q=RES+INTEGRA] as the same has been concluded that upon the death of the complainant, under the provisions of section 302 Cr.P.C mother of the complainant could be allowed to continue the prosecution. It was further laid down that she could make the application either herself or through a pleader. It was observed that, if any permission would be sought to continue prosecution by the legal heirs of the deceased, the court would consider the same in its proper perspective and take an appropriate decision in accordance with law, and Supreme Court further held in the above said decision that by granting such prayer, no illegality has been committed by the courts.
Two Judge Bench in Jimmy Jahangir Madan v. Bolly Caiyappa Hindley (dead) By Lrs., (2004) 12 SCC 509 referring to this Court’s judgment in Ashwin Nanubhai Vyas (supra) had held that heirs of complainant can continue the prosecution [CHAND DEVI DAGA vs. MANJU K. HUMATANI – Crl Apl No: 1860 of 2017 – 03-11-2017 – (2017) 13 Scale 239=(2018) 1 SCC 71=(2018) 1 SCC(Cri) 264].
SECTION 302 – CONTINUE PROSECUTION BY THE HOLDERS OF THE ‘POWER OF ATTORNEY’ EXECUTED BY THE LEGAL HEIRS OF THE COMPLAINANT
Now the core question is whether power of attorney holders can be treated to be a ‘Pleader’ of heirs of the complainant. It is better to refer ‘Pleader’ defined under section 2(q) of the Cr.P.C. The definition envelops two kinds of pleaders with its ambit. The first refers to legal practitioner who are authorised to practise law and the second refers to ‘any other person’. If it is the latter, its essential requisite is that such person should have been appointed with the permission of the court to act in such proceedings. This is in tune with section 32 of the Advocates Act, 1961 which empowers a court to permit any person, who is not enrolled as an Advocate, to appear before it in any particular case. But if he is to represent another person in a criminal court, such permission should be sought for by that person. It is not necessary that the ‘Pleader’ so appointed should be the power of attorney holder of a party in the case. What seems to be a condition precedent is that his appointment should have been preceded by grant of permission of the court. It is for the court to consider whether such permission is necessary in the given case. Legally qualified person who are authorised to practise in the courts by the authority prescribed under the statute concerned can appear for parties in the proceedings pending against them. No party is required to obtain prior permission of the court to appoint such persons to represent him in court. Section 30 of the Advocates Act, 1961 confers a right on every advocate, whose name in the roll of advocates maintained by a state bar council, to practise in all the court in India. Section 33 of the Advocates Act, 1961 lays down that no person shall be entitled to practise in all the courts in India unless he is enrolled as an Advocate under the said Act. But if the person proposed to be appointed by a party is not such a qualified person, prior permission of the courts must be secured before a non-advocate is appointed by a party to represent him in court. So it is clear other than the enrolled Advocates no one can be appointed to be represented for the complainant / legal heirs of the complainant without the permission of the particular court. Now, we can enter to address the core issue whether power of attorney holders of heirs of the complainant could file an application u/s. 302 Cr.P.C to continue the prosecution? It is well settled that an agent cannot become a ‘pleader’ for the party in criminal proceedings, unless the party secures permission from the court to appoint him to act in such proceedings [AIR 2005 SC 48=2004 AIR SCW 6248 – Jimmy Jahamgir Madan vs. Bolly Cariyappa Hindley].
Supreme Court [AIR 1999 SC 1385=1999 AIR SCW 1062 – T.C.Mathai vs. District and Sessions Judge, Thiruvananthapuram] giving reasons to the above said provisions held that the reason for the Parliament for fixing such a filter in the definition clause [section 2(q) Cr.P.C] that prior permission must be secured before a non-advocate is appointed by the party to plead his case in the court, is to enable the court to verify the level of equipment of such person for pleadings on behalf of the party concerned. It is well and good to understand that the ‘power of attorney’ concept is only for the ‘complaint’ and not for the ‘accused’, inasmuch as the Section 2 of Power of Attorney Act cannot override the specific provision of a statute which requires that a particular act should be done by a party in person. When the Code requires the appearance of an accused in a Court it is no compliance with it if a power of attorney holder appears for him. It is a different thing that a party can be permitted to appear through counsel. Chapter XVI of the Cr.P.C empowers the Magistrate to dispense with the personal attendance of accused, and permit him to appear by his pleader ‘if he sees reasons so to do’. Section 273 Cr.P.C speaks of the powers of the Court to record evidence in the presence of the pleader of the accused, in cases when personal attendance of the accused is dispensed with. But in no case can the appearance of the accused be made through a power of attorney holder.
Now coming back to the square one, the language of Sections 205 & 302 Cr.P.C is similar. Under section 302 Cr.P.C, a party can make an application himself to continue the prosecution or the same can be made by a ‘pleader’ as provided u/s. 2(q) Cr.P.C, the prayer to continue the prosecution can be made either by a legally qualified person, who is authorised to practise in the court under the Advocates Act; or by any other person which would obviously include a power of attorney holder in which eventually such permission can be granted by the court where the prosecution is pending only if it is sought by the person who is entitled to continue the prosecution and not by the power of attorney holder under section 205 Cr.P.C, an accused is required to appear in person but his personal appearance can be dispensed with and he can be allowed to be represented by a pleader. Likewise, u/s. 302 Cr.P.C, a person, who is entitled to continue the prosecution, is required to make an application himself but under both the provisions aforesaid, instead of taking steps personally a party can be represented through a pleader. Power of attorney holder can represent the concerned party under both the provisions of the Code, in case permission for such representation is sought from the court by the concerned person and granted by it. But where no such permission is sought by the concerned person, meaning thereby, in the case of section 302 Cr.P.C, a party who has right to continue the prosecution. Power of Attorney holder cannot be allowed to represent the concerned person in the proceeding and Supreme Court further held in the case that neither heirs of the complainant filed petition u/s. 302 Cr.P.C to continue the prosecution nor any permission was sought by them from the competent court that they should be allowed to continue the prosecution through their power of attorney holders, rather the prayer was made by the power of attorney holders, which is not permissible in law and directed the heirs of the complainant either to make application themselves before the Court concerned to continue the prosecution or apply to the Court to grant permission to them to authorise the power of attorney holders to continue the prosecution on their behalf [AIR 2005 SC 48=2004 AIR SCW 6248 – Himmy Jahangir Madan vs. Bolly Cariyappa Hindley].
SECTION 302 Cr.P.C – POWER OF ATTORNEY TO APPEAR IN A CASE
A perusal of the said prevision (section 33 of the Advocates Act, 1961) show that only a person who is enrolled as an Advocate can practise in a Court, except where otherwise provided by law. This is also evident from section 29 of the Advocates Act. A natural person can, of course, appear in person and argue his own case personally but he cannot give a Power of Attorney to anyone other than a person who is enrolled as an Advocate to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act. Section 32 of the Act, however, vests discretion in the Court, authority or person to permit any person who is not enrolled as an Advocate to appear before the Court and argue a particular case. Section 32 of the Act is not the right of a person (other than an enrolled Advocate) to appear before the Court and argue before the Court but it is the discretion conferred by the Act on the Court to permit any one to appear in a particular case even though he is not enrolled as an Advocate. We make it clear that as regards artificial person like a company registered under the Indian Companies Act, or a registered Co-Operative Society, or a Trust, neither the Director of the Company nor the member of the Managing Committee or officer bearer of the registered society or a trustee has a right to appear and argue on behalf of that entity, since that entity is distinct from its shareholders or office bearers or directors. However, it is the discretion of the court under section 32 of the Advocates Act to permit such person to appear on behalf of that entity [Goa Antibiotics & Pharmaceuticals Ltd vs. R.K. Chawla & others – 2011 (3) MWN (Cri) 290 (SC)].
SECTION 302 Cr.P.C – ADDUCING EVIDENCE
The manner in which a complainant may appear before the court is not a matter which is governed by section 210(2) Cr.P.C. If the Public Prosecutor enters appearance, then the provisions of section 301(2) Cr.P.C would apply and the complainant can intervene only by way a instructing his pleader and sub-pleader would have to act under the direction of the Public Prosecutor in the conduct of the case. The complainant would not have any right to produce his own evidence. Otherwise, u/s 302 Cr.P.C any person conducting the prosecution would have the right to do so personally or by a pleader and would have once he has been permitted by the Magistrate, the possibility of adducing his own evidence [Kadiresan vs. Kasim and Ors – 1987 Cr.L.J 1225 (Mad)].
SECTION 302 Cr.P.C – DISCHARGE STAGE
We only observe that it would be open to the Appellant, if so advised, to file an application under section 302, Cr.P.C 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, Cr.P.C [Dhariwal Industries Ltd vs. Kishore Wadhwani and Ors – 2016(3) MWN (Cri) 161 (SC)].
SECTIONS 301 & 302 Cr.P.C – DISTINCTION
We have already explained the distinction between sections 301 & 302, Code of Criminal Procedure. 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, Code of Criminal Procedure is concerned, power is conferred on the Magistrate to grant permission to the complainant to conduct the prosecution independently [Dhariwal Industries Ltd vs. Kishore Wadhwani and Ors – 2016(3) MWN (Cri) 161 (SC)].
As stated by us earlier the facts involved in the said case are drastically different from what is prevailing in the case on hand. From what has been stated in paragraph 14 of the said decision, when the complainant wanted to conduct the case of the prosecution itself, though with the permission of the public prosecutor, the Court has found that such a course, though was permissible to some extent before the Magistrate under Section 302 of Cr.P.C, the same cannot be permitted to the extent allowed to by the Court of Sessions by invoking Section 301 of Cr.P.C. We, therefore, do not find any scope to apply the said decision to the facts of this case [Sister Mina Lalita Baruwa Versus State of Orissa & Others – 2013 (16) SCC 173= 2014 CrLJ 671].
Section 302 Cr.P.C – WITNESS – ADVOCATE ENGAGEMENT
Solairaj (LW1) will be entitled to the assistance of an Advocate of his choice during trial and the Public Prosecutor conducting the trial shall hold interview with Solairaj and Solaiammal before putting them in the witness box as held by the Supreme Court in the case of Banti @ Guddu v. State of Madhya Pradesh, reported in 2003 (7) Supreme Today 691 [R.Solairaj vs. The S.P – 2017(2) TNLR 806 (Mad)].
SECTION 302 Cr.P.C – VICTIM – MERE ASKING
Apex Court after quoting its earlier decision ruling the field such as Babu vs. State of Kerala [1984 Cr.L.J 499 (SC)], Shiv Kumar vs. Hukum Chand & anr [(1999) 7 SCC 467], J.K.International vs. State (Govt. of NCT of Delhi) & ors [(2001)3 SCC 462], Dhariwal Industries Limited vs. Kishore Wadhwani & ors [(2016)10 SCC 378], Mallikarjun Kodagli (dead) represented through LRs vs. State of Karnataka & ors [(2019)2 SCC 752] and held that 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 [Amir Hamza Shaikh & ors vs. State of Maharashtra & anr – Crl.Apl No: 1217 of 2019 – dt: 7.8.2019 – (2019)3 MLJ (crl) 579
– End of question NO.1 –
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