DHARIWAL INDUSTRIES LTD.versusKISHORE WADHWANI & ORS.

                         [2016] 5 S.C.R. 2 _12


A                       DHARIWAL INDUSTRIES LTD.
                                           v.
                        KISHORE WADHWANI & ORS.
                        (Criminal Appeal No. 859of2016)
B                             SEPTEMBER 06, 2016
            [DIPAK MISRA AND ADARSH KUMAR GOEL, JJ.]
           Code of Criminal Procedure, 1973: ss. 301, 302 - Permission
    to conduct prosecution - Role of complainant - Held: Role of
    informant or the party is limited during the prosecution of a case in
c
    a Court of Session - Counsel engaged by him is required to act
    under the directions of public prosecutor - As far as s.302 is
    concerned, power is conferred on the Magistrate to grant permission
    to the complainant to conduct the prosecution independently -
    However, for availing benefit of s.302, he has to file a written
D   application making out a case so that magistrate can exercise the
    ;urisdiction as vested in him and form theJequisite opinion - s.302
    applies to every stage including the stage of framing charge
    inasmuch as the complainant is permitted by the Magistrate to
    conduct the prosecution.
E         J.K. International v. State (Govt. of NCT of Delhi) and
          Ors. (2001) 3 SCC 462 : 2001(2) SCR 90; Sundeep
          Kumar Bafna v. State of Maharashtra and Anr. (2014)
          16 SCC 623 : 2014 (4) SCR 486; Shiv Kumar v. Hukam
          Chand and Am: (1999) 7 SCC 467 : 1999 (2) Suppl.
          SCR 81 - relied on.
F
                            Case Law Reference
          2001(2) SCR 90                        . relied on   Para6
          2014 (4) SCR 486                       relied on    Para6

G         1999 (2) Suppl. SCR 81                 relied on    Para6
          CRIMINALA.PPELLATE JURISDICTION: Criminal Appeal No.
    859 of2016.
         From the Judgment and Order dated 13.02.2012 of the High Court
    of Bombay in CRWPNo. 3438 of2010.
H
                                     212
 DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI &                                 213
                      ORS.

      K. T. S. Tulsi, P.H. Parekh, Sr. Advs., Lal it Chauhan, Raj Kamal,        A
Vishal Prasad, Ms. Ritika Sethi, K. Raj , Abhishek Vinod Deshmukh
(for Mis Parekh & Co.), Advs. for the Appellant.
     Dr. A. M. Singhvi, Vikas Singh, Sr. Advs., Priya Puri, Amit
Bhandari, Anil Naidu, Ms. Churchi M., Advs. for the Respondents.
      The Judgment of the Cou11 was delivered by                                 B

      DIPAK MISRA, J. I. Leave granted.
       2. The present appeal, by special leave, assails the order dated
J3 1h February, 2012 passed by the High Court of Judicature at Bombay
in Criminal Writ Petition No. 3438 of20 l 0 whereby the learned Single           c
Judge has modified the order dated 30'h August, 20 I 0 whereunder the
Additional Chief Metropolitan Magistrate, 81hCourt, Esplanade, Mumbai
in C.C.No.927/PW/2007 had pennitted the appellant to be heard atthe
stage of framing of charge 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               D
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      E
under Section 200 CrPC for the offences punishable under Sections
I 09, 193, 196, 200, 465, 467 and 471 read with Section 120-B oflndian
Penal Code (!PC). 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-
                                                                                 F
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 prayer before the learned Magistrate seeking
                                                                                 G
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.
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A           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
B             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 30 I Cr.P.C. An application for discharge can result
              into putting an end to the prosecution either partly or fully.
c             This stage is in that respect similar to the stage of
              consideration of the police report by the Magistrate under
              Section 173(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
D             the matter reaches the stage of trial and is disposed off
              after recording of evidence. lfby judicial pronouncements,
              he is now granted hearing at the earlier two stages, he can
              be granted hearing at the stage of discharge also, though
              the Criminal Procedure Code does not make provision for
              hearing to him at that stage. If the first informant appears
E             before the Court and desires to participate in the application,
              opportunity cannot be refused to him. Now the next question
              would be about the nature of the hearing to be given to the
              first informant. Should the hearing be independent to the
              hearing to the Public Prosecutor or it be through the Public
F             Prosecutor. In my opinion, his role will have to be limited
              as under Section 30 I Cr.P.C. for the same reasons, as given
              in Anthony D'Souza's 1 case and keeping in focus the role
              of the Public Prosecutor. He cannot be allowed to take
              over the control of prosecution by allo._wing to address the
              court directly. Therefore, the petition is partly allowed. The
G             impugned order is modified to the extent that the Counsel
              engaged by respondent no. 2 shall act under the directions
              of the Assistant Public Prosecutor in-charge of the case."
              6. Questioning the legal propriety and the approach of the High
H     1
          Anthony D'Souza v. Mrs. Radhabai Brij Ratan Mahal/a. 1984 (I) BC.R. 157
    DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI &                              215
                 ORS. [DIPAK MISRA, J.]

Court, it is submitted by Mr. K.T.S. Tulsi, learned senior counsel appearing    A
for the appellant that the High c:;ourt has gravely erred by placing reliance
on Section 30 I CrPC and completely ignoring the stipulations inherent in
Section 302 Cr PC. According to Mr. Tulsi, there is a distinction between
a trial before a Magistrate and a sessions trial and Section 302 CrPC
has exclusive application to a magisterial trial and hence, the complainant
                                                                                 B
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 otl1ers1 and
Sundeep Kumar B<ifna v, State of Malum1shtra and anotlter3.
       7. Mr. Vikas Singh, learned senior counsel, in his turn, contends
that Section 30 I Cr PC is applicable to all categories of cases and
                                                                                 c
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,              D
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 such a situation, no laxity should be given to him to take the
                                                                                 E
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 another' which needs
to be reconciled.
       8. Section 301 CrPC reads as follows:-
                                                                                 F
       " Appearance by Public Prosecutors.-( I) Tiie Public
       Prosecutor or Assistant Public Prosecutor in charge of a
       case may appear and plead without any written authority
       before any couii in which that case is under inquiry, trial or
       appeal.
                                                                                 G
       (2) If in any such case any private person instructs a pleader
       to prosecute any person in any Cou'rt, the Public Prosecutor
2
   (2001) 3 sec 462
' (2014) 16 sec 623
 ' ( 1999) 1sec467                                                               H
216            SUPREME COURT REPORTS                           [2016] 5 S.C.R.



A           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 Prosec.utor or
            Assistant Public Prosecutor, and may, with the permission
            of the Court, submit written arguments after the evidence
            is closed in the case."
B
'           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 pe11inent for the present case
c     reads as follows:-
            "Permission to conduct prosecution-( I )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
D           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
E           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
F     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
G           officer below the rank oflnspector. 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
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 DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI &                                 217
              ORS. [DIPAK MISRA, J.]

      is granted the person concerned can appoint any counsel to                A
      conduct the prosecution on his behalf in the Magistrate's
      Court.
                 xxx                   xxx              xxx
      11. The old Criminal Procedure Code (1898) contained an
      identical provision in Section 270 thereof. A Public                       B
      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 30 I of the Code. Unlike                 c
      its succeeding provision in the Code, the application of which
      is confined to magistrate courts, th is particular section is
      applicable to all the comts of criminal jurisdiction. This
      distinction can be discerned from employment of the words
      any court in Section 30 I. In view of the provision made in                D
      the succeeding section as for magistrate courts the
      insistence contained in Section 30 I (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                E
      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
      co mt 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                 F
      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 ofCrPC, the legislative intention is manifestly
clear that prosecution in a Sessions Court cannot be conducted by anyone         G
other than the public 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
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218            SUPREME COURT REPORTS                           [2016] 5 S.C.R.



A     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
B 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 ifthe court thinks that the
    cause ofjustice would be served better by granting such permission the
C . court would generally grant such permission. Clarifying further, it has
    been held that the said wider amplitude is limited to 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.
D            I 4. 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 Sltiv Kumar (supra), the
      Court was dealing with the ambit and sweep of Section 301 CrPC and in
      that co_ntext observed that Section 302 CrPC is intended only for the
 E    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
 F    court to consider his request. The Court has proceeded to state that the
      Court has to form an opinion that cause ofjustice 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.
             15. In Sundeep Kumar Bafna (supra), the Court was dealing
 G    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
 H
 DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI &                                  219
              ORS. [DIPAK MISRA, J.]

       that was posed before another three-Judge Bench was                       A
       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 0f a private lawyer
                                                                                 B
       would inexorably undermine the fairness and impartiality
       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-
       examination of the witness which was allowed by the trial
       court but was reversed in revision by the High Court, and                 c
       the High Court permitted ooly the submission of written
       argument after the closure of evidence. Upholding the view
     · of the High Court, th is Court went on to observe that before
       the Magistrate any person (except a police officer below
       the rank of Inspector) could conduct the prosecution, but
                                                                                  D
       that this laxity is impermissible in the Sessions by virtue of
       Section 225 CrPC, which pointedly states that the
       prosecution shall be conducted by a Public Prosecutor.... "
        16. Mr. Tulsi, learned senior counsel, has drawn inspiration from
the aforesaid authority as Shiv Kum"r (supra) has been referred to in
the said judgment and the Court has made a distinction between the role           E
of the public prosecutor and the role of a complainant before the two
trials, namely, the sessions trial and the trial before a Magistrat~'s Couti.
       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. Tutsi,            F
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.                 G
       18. We have already explained the distinction between Sections
30 I and 302 CrPC. 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 CrPC is concerned, power is conferred           H
220             SUPREME COURT REPORTS                           [2016] 5 S.C.R.



A     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. Tutsi but, no application was filed under Section 302 CrPC and,
      therefore, the prayer was restricted to be heard which is postulated
B     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. I11tematio11al (supra) so that the
c     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 granted. Mr. Singh has seriously opposed the
D     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
E     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
 F    merits of the application to be filed.
             21. The criminal appeal is, accordingly, disposed of.


      Devika Gujral                                             Appeal disposed of.