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Judgment
G.M. Akbar Ali, J.—This petition is filed, seeking for a direction to set aside the order dated 26.8.2010 in CMP No. 3482 of 2010 by the
learned Judicial Magistrate No. I, Krishnagiri and permit the Petitioner/defacto complainant/victim to engage a counsel of her choice to conduct the
prosecution in the above CC No. 115/2010 on the file of the learned Judicial Magistrate No. I, Krishnagiri.
The Petitioner is the defacto-complainant, who gave a complaint for the alleged offence punishable under Sections 498(A), 323, 294(b) r/w
109 IPC. The husband and the relatives of the Petitioner are the accused. The matter was investigated by the Respondent and on filing of the
charge sheet, the learned Judicial Magistrate took the case on file in CC No. 115/2010.
Pending trial, the Petitioner had filed an application u/s 302 of Code of Criminal Procedure to permit the Petitioner/defecto-complainant to
engage a counsel of her choice to conduct the prosecution of the case in C.C. No. 115/2010.
The learned Magistrate passed order on 26.8.2010 in CMP No. 3482 of 2010 stating that the ""Petitioner/defacto-complainant is allowed to
engage counsel at her choice and such counsel shall act under the direction from the Public Prosecutor. Accordingly the petition disposed of"".
Aggrieved by the restricted permission, the Petitioner is before this Court u/s 482 Code of Criminal Procedure
Mr. S. Ananthanarayanan, learned Counsel appearing for the Petitioner would submit that u/s 302 Code of Criminal Procedure, the
Petitioner/defacto complainant is entitled to conduct the prosecution by engaging a counsel. The learned Counsel relied on a decision reported in
2000 MLJ 145 (Shiv Kumar v. Hakum Chand and Anr.) wherein the Apex Court has dealt in detail about the powers of the Court and rights of
the defacto complainant in conducting the prosecution, The Apex Court has held as follows:
From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by any one
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 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.
The learned Counsel also relied on a decision reported in M/s. J.K. International Vs. State, Govt of NCT of Delhi and Others, wherein the
Apex Court has again held thus:
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 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.
The learned Counsel for the Petitioner also relied on a decision reported in 2005 MLJ 404 (Rajesh Kumar Bagmar and Ors. v. State), wherein
the learned single Judge of this Court has held as follows:
In this case also, there was apprehension in the mind of the second Respondent that the investigation was not conducted properly and that the
Additional Public Prosecutor can only act according to the records and materials gathered during the course of such investigation and therefore,
there may be failure of justice. Strengthening the view, one circumstance was pointed out that despite recording the statement from the mother and
maternal uncle of second Respondent/wife in the course of investigation, they were not included in the list of witnesses on the side of prosecution.
Whether the grievance of the second Respondent is true or not, the appreciation was shown to be reasonable. It is in that event, the Court thinks
that the cause of justice would be served better by granting such permission, the Court would generally grant such permission as was mentioned in
J.K. International v. State (Government of N.C.T of Delhi) and Ors. 2001 S.C.C 547. When Section 302 Crl.P.C permits the conduct of
prosecution by the complainant personally or by a pleader and when permission could be granted for that purpose by the Magistrate and when the
reasonings are also found convincing, then there is no ground to set aside the said impugned order.
The learned Additional Public Prosecutor submits that u/s 302 Code of Criminal Procedure, the defacto-complainant may be permitted to
engage own counsel to conduct the trial and they need not assist the prosecution like in Sessions Court.
Heard both sides and perused the materials available on record. The Apex Court has rightly pointed out the difference between granting
permission to the person interested to conduct the prosecution either by himself or by engaging a private counsel before the Magistrate''s Court
and engaging a private counsel to assist the Public Prosecutor before the Sessions Court.
Section 302 of Code of Criminal Procedure reads as follows:
302(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a 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.
In M/s. J.K. International Vs. State, Govt of NCT of Delhi and Others, , the Apex Court has clearly held that the defacto complainant can
approach the learned Magistrate seeking permission to conduct the prosecution by himself or by appointing a counsel.
Therefore, u/s 302 Code of Criminal Procedure, the defacto-complainant may be permitted to prosecute through a counsel of his choice.
Once the magistrate thinks that the cause of justice would be served better by granting such permission, the magistrate would generally grant such
permission without any restriction. However this should not mean that the role of the Assistant Public Prosecutor is replaced by the person
permitted to conduct the prosecution. The role of the such person shall be only to lead evidence when he satisfies the court that the prosecution has
omitted examine the material evidence and on such circumstances the court may invoke the power u/s 311 or any other relevant provision of the
Code.
On perusal of the order of the Magistrate, it is evident that the Magistrate has passed such an order keeping in mind, that the role of the e
Assistant Public Prosecutor can not be replaced and has said ''shall act under the direction from the Public Prosecutor'' thereby, the learned
Magistrate has not given any liberty for the counsel to prosecute on behalf of the defacto-complainant. Therefore the role of the person permitted
to prosecute either by himself or through a counsel shall be only to lead evidence when he satisfies the court that the prosecution has omitted to
examine the material evidence and on such circumstances the court may invoke the power u/s 311 or any other relevant provision of the Code.
Under such circumstances, the restriction imposed by the learned Judicial Magistrate No. I, Krishnagiri that the Petitioner/defacto-complainant
is allowed to engage counsel at her choice and such counsel shall act under the direction from the Public Prosecutor is not correct. The role of such
counsel shall be as above said.
In the result, the criminal original petition is allowed and subject to the above observation, the restriction imposed by the learned Judicial
Magistrate No. I, Krishnagiri in CMP No. 3482 of 2010 dated 26.8.2010 is set aside. Consequently, connected MP is closed.