REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1217  OF 2019 (ARISING OUT OF SLP (CRIMINAL) NO. 3202 OF 2019)

AMIR HAMZA SHAIKH & ORS. .....APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA & ANR. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) Leave granted.

2) The challenge in the present appeal is to an order passed by the High  Court  of  judicature  at  Bombay  on  November  27,  2018

whereby an order passed by the Magistrate declining permission to

respondent  No.  2  to  prosecute  the  appellants-accused  for  the

offences punishable under Sections 498A, 406 read with Section 34

of Indian Penal Code, 18601, was allowed.   

3) The  respondent  No.  2  had  sought  permission  to  conduct prosecution  in  terms  of  Section  302  of  the  Code  of  Criminal

Procedure,  19732 for  the  aforesaid  offences.   The  learned

Magistrate declined permission without giving any reason but the 1  for short, ‘IPC’ 2  for short, ‘Code’.

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High Court considered the judgments on the subject and granted

permission  to  conduct  prosecution  only  for  the  reason  that  the

application has been made by an aggrieved party.

4) Learned counsel for the appellants argued that the High Court is not required to give permission to prosecute mechanically only for

the reason that such permission is sought by an aggrieved party.  It

is contended that the prosecution is to be conducted by a Public

Prosecutor who is an officer of the Court and required to assist the

Court to do justice rather than to be vindictive and take side with

any of the parties.  If the party is allowed to proceed to take over

the  investigation,  the  avowed  object  of  fairness  in  the  criminal

justice dispensation system shall be shaken.

5) The present Section 302 of the Code is similar to Section 495 of the Code of Criminal Procedure, 1898.  Section 302 of the Code reads

as under:

“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.”

6) It may be noticed that under Section 301 of the Code, the Public Prosecutor may appear and plead without any authority before any

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Court in which that case is under inquiry, trial or appeal and any

person may instruct a pleader who shall act under the directions of

the Public  Prosecutor  and may with the permission of  the Court

submit written submissions.  

7) A Division Bench of Kerala High Court in Babu v. State of Kerala3

examined as to when permission should be granted.  The Court

held as under:   

“3.  …In Subhash Chandran v. State of Kerala 1981 KLT Case No. 125 a learned Jude of this Court held:

Whether permission should be granted or not is a matter  left  to  the  discretion  of  the  Court,  the discretion being used in a judicial  manner. It  is true  that  the  petitioner  as  the  son  of  the deceased and  as  a  person  who  has  a  right  to make out that there was rashness and negligence on the part of the accused and claim damages from him may be interested in the prosecution. But  that  fact  is  not  by  itself  a  ground  for permitting him to conduct the prosecution in the place of the Assistant Public Prosecutor who is in charge of the case. It is settled law that where a cognisable  offence  is  committed  and  a prosecution is launched by the State it is for the Public  Prosecutor  to  attend  to  the  prosecution. The  object  of  a  criminal  prosecution  is  not  to vindicate the grievances of a private person.

4.  Under Section 301, a Pleader engaged by a private person can assist the Public Prosecutor or the Assistant Public Prosecutor as the case may be in the conduct of the prosecution while under Section 302 the Magistrate may permit the prosecution itself to be conducted by any  person  or  by  a  pleader  instructed  by  him.  The distinction  is  when  permission  under  Section  302  is given  the  Public  Prosecutor  or  the  Assistant  Public Prosecutor  as  the  case  may  be  disappears  from the scene and the pleader engaged by the person who will invariably  be the de facto  complainant  will  be in  full charge  of  the  prosecution.………………This  does  not

3  1984 CriLJ 499

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mean that permission cannot at all  be granted under Section  302.  Under  very  exceptional  circumstances permission  can  be  granted  under  Section  302. Otherwise, there is no reason why the provision is there in the Code. But that is to be done only in cases where the circumstances are such that a denial of permission under Section 302 will stand in the way of meeting out, justice in the case. A mere apprehension of a party that the Public Prosecutor will not be serious in conducting the  prosecution  simply  because  a  conviction  or  an acquittal  in the case will  affect another case pending will  not by itself be enough. At the same time, if the apprehension of  the party is  going to materialise the court  can  pending  the  trial,  grant  permission  under Section  302  even  if  a  request  for  permission  was rejected at the outset.”   

8) This Court in Shiv Kumar v. Hukam Chand & Anr.4 has examined the distinction between the scope of Section 301 and 302 of the

Code. It has been held that Section 302 of the Code is applicable in

respect  of  the  offences  triable  by  Magistrate.   It  enables  the

Magistrate  to  permit  any  person  to  conduct  the  prosecution

whereas in terms of Section 301 of the Code, any private person

may instruct a pleader to act under the directions of  the Public

Prosecutor  or  Assistant  Public  Prosecutor  in  any trial  before any

court  and  to  submit  written  arguments  after  the  close  of  the

evidence.  This Court held as under:   

“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

4  (1999) 7 SCC 467

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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.

13. 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,  the  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 a 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.”

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 Sections

420, 406 and 120-B IPC were investigated and charge sheet filed 5  (2001) 3 SCC 462

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on  the  basis  of  complaint  of  the  appellant,  the  accused filed  a

petition  for  quashing  of  the  charges  in  which  the  complainant

wanted  to  be  heard.   The  Public  Prosecutor  filed an application

before the Magistrate for amending the charge for incorporating

two more offences which were exclusively triable by the Court of

Sessions.  The Magistrate dismissed the application but the said

order was not challenged by the prosecution.  It was held that the

scheme in the Code indicates that the person who is aggrieved by

the offence committed is not altogether wiped out from the scene

of the trial merely because the investigation was taken over by the

police.  This Court while considering the provisions of sub-section

(2) of Section 301 and Section 302, held as under:

“9. The  scheme  envisaged  in  the  Code  of  Criminal Procedure indicates that a person who is aggrieved by the  offence  committed,  is  not  altogether  wiped  out from  the  scenario  of  the  trial  merely  because  the investigation  was  taken  over  by  the  police  and  the charge-sheet was laid by them. Even the fact that the court  had  taken  cognizance  of  the  offence  is  not sufficient  to  debar  him  from reaching  the  court  for ventilating his grievance. Even in the Sessions Court, where  the  Public  Prosecutor  is  the  only  authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the  offence  involved  in  the  case  is  not  altogether debarred from participating in the trial.  This  can be discerned from Section 301(2) of the Code which reads thus:

“301.  (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

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arguments after the evidence is closed in the case.”

10.  The said provision falls within the Chapter titled “General Provisions as to Inquiries and Trials”. When such  a  role  is  permitted  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 private person, if  he  is  aggrieved,  is  not  wiped  off  from  the proceedings in the criminal court merely because the case was charge-sheeted by the police. It  has to be stated further, that the court is given power to permit even  such  private  person  to  submit  his  written arguments in the court including the Sessions Court. If he submits any such written arguments the court has a  duty  to  consider  such  arguments  before  taking  a decision.

11.   In  view of  such a scheme as delineated above how can it be said that the aggrieved private person must keep himself outside the corridors of the court when the case involving his grievance regarding the offence  alleged  to  have  been  committed  by  the persons arrayed as accused is tried or considered by the court. In this context it is appropriate to mention that when the trial is before a Magistrate's Court the scope  of  any  other  private  person  intending  to participate in  the conduct  of  the prosecution  is  still wider…

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12.  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  much

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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.”

10) Both the aforesaid judgments came up for consideration before this Court in Dhariwal Industries Limited v.  Kishore Wadhwani &

Ors.6 wherein  the  learned  Magistrate  had  held  that  the

complainant is not alien to the proceeding and, therefore, he has a

right to be heard even at the stage of framing of charge.  The High

Court modified the order and permitted the counsel engaged by

the complainant to act under the directions of the Public Prosecutor

in charge of the case.  The Court held as under:

“13.  Having carefully perused both the decisions, we do  not  perceive  any  kind  of  anomaly  either  in  the analysis or ultimate conclusion arrived at by the Court. We  may  note  with  profit  that  in Shiv  Kumar [Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 : 1999 SCC (Cri) 1277] , 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 [J.K. International v. State (Govt. of NCT of Delhi), (2001) 3 SCC 462 : 2001 SCC (Cri) 547] 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

6  (2016) 10 SCC 378

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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 would generally grant such  permission.  Thus,  there  is  no  cleavage  of opinion.”

11) In  Mallikarjun Kodagali (Dead) represented through LRs  v. State of  Karnataka & Ors.7,  three  Judge Bench of  this  Court

considered the victim’s right to file an appeal in terms of proviso to

Section 372 inserted by Central Act No. 5 of 2009 w.e.f. December

31,  2009.   This  Court  considered  154th Report  of  the  Law

Commission of India submitted on August 14, 1996; the Report of

the Committee on Reforms of Criminal Justice System commonly

known  as  the  Report  of  the  Justice  Malimath  Committee;  Draft

National  Policy  on  Criminal  Justice  of  July,  2007  known  as  the

Professor Madhava Menon Committee and 221st Report of the Law

Commission of India, April, 2009, and observed as under:

“5.  Parliament also has been proactive in recognising the  rights  of  victims  of  an  offence.  One  such recognition is through the provisions of Chapter XXI-A CrPC which deals with plea bargaining. Parliament has recognised the rights  of  a  victim to participate in a mutually satisfactory disposition of the case. This is a great leap forward in the recognition of the right of a victim  to  participate  in  the  proceedings  of  a  non- compoundable  case.  Similarly,  Parliament  has amended CrPC introducing the right of appeal to the victim  of  an  offence,  in  certain  circumstances.  The present appeals deal with this right incorporated in the proviso to Section 372 CrPC.

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8.  The rights of victims, and indeed victimology, is an 7  (2019) 2 SCC 752

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evolving jurisprudence and it is more than appropriate to move forward in a positive direction,  rather  than stand still or worse, take a step backward. A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard.”

12) The Court dealt with Justice Malimath Committee in the following manner:

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

“6.3.  Basically  two  types  of  rights  are recognised in many jurisdictions, particularly in continental countries in respect of victims of crime. They are, firstly, the victim's right to participate  in  criminal  proceedings  (right  to be  impleaded,  right  to  know,  right  to  be heard  and  right  to  assist  the  court  in  the pursuit  of  truth)  and  secondly,  the  right  to seek  and  receive  compensation  from  the criminal  court  itself  for  injuries  suffered  as well  as  appropriate  interim  reliefs  in  the course of proceedings.””

13) In J.K. International, it has been held that if the cause of justice would  be  better  served  by  granting  such  permission,  the

Magistrate’s  court  would  generally  grant  such  permission.   An

aggrieved  private  person  is  not  altogether  eclipsed  from  the

scenario when the criminal court take cognizance of the offences

based on the report submitted by the police.   

14) In Mallikarjun Kodagali, this Court approved the Justice Malimath Committee, wherein the victim’s right to participate in the criminal

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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

had been recognised.  

15) 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.   

16) We  find  that  the  High  Court  has  granted  permission  to  the complainant  to  prosecute  the  trial  without  examining  the

parameters laid down hereinabove.   Therefore, we set aside the

order passed by the High Court and that of the Magistrate.  The

matter is remitted to the Magistrate to consider as to whether the

complainant  should  be  granted  permission  to  prosecute  the

offences under Sections 498-A, 406 read with Section 34 IPC.  The

appeal is allowed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; AUGUST 07, 2019.

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