DHARIWAL INDUSTRIES LTD. Vs. KISHORE WADHWANI & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 859 of 2016, Judgment Date: Sep 06, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA.
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 859 OF 2016
(@ S.L.P.(Criminal) No. 5717 of 2012)
Dhariwal Industries Ltd. …Appellant
VERSUS
Kishore Wadhwani & Ors. …Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The present appeal, by special leave, assails the order dated 13th
February, 2012 passed by the High Court of Judicature at Bombay in Criminal
Writ Petition No. 3438 of 2010 whereby the learned Single Judge has
modified the order dated 30th August, 2010 whereunder the Additional Chief
Metropolitan Magistrate, 8th Court, Esplanade, Mumbai in C.C.No.927/PW/2007
had permitted the appellant to be heard at the 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 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
under Section 200 CrPC for the offences punishable under Sections 109, 193,
196, 200, 465, 467 and 471 read with Section 120-B of Indian Penal Code
(IPC). 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-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
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.
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 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 301 Cr.P.C. An application for discharge can result into putting an
end to the prosecution either partly or fully. This stage is in that
respect similar to the stage of consideration of the police report by the
Magistrate under Section173(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 the matter reaches the stage of
trial and is disposed off after recording of evidence. If by 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 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 Prosecutor. In my opinion, his role
will have to be limited as under Section 301 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 allowing to address the court directly. Therefore, the
petition is partly allowed. The 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 Court,
it is submitted by Mr. K.T.S. Tulsi, learned senior counsel appearing for
the appellant that the High Court has gravely erred by placing reliance on
Section 301 CrPC and completely ignoring the stipulations inherent in
Section 302 CrPC. 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 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 others[2] and Sundeep
Kumar Bafna v. State of Maharashtra and another[3].
7. Mr. Vikas Singh, learned senior counsel, in his turn, contends that
Section 301 CrPC is applicable to all categories of cases and 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, 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 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[4] which needs to be reconciled.
8. Section 301 CrPC reads as follows:-
“Appearance by Public Prosecutors.-(1) The Public Prosecutor or Assistant
Public Prosecutor in charge of a case may appear and plead without any
written authority before any court in which that case is under inquiry,
trial or appeal.
(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 arguments after the evidence is
closed in the case.”
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 pertinent for the present case reads as
follows:-
“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.”
11. In Shiv Kumar (supra) interpreting the said provision, the 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 officer below the rank of Inspector. 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 is granted the person concerned can appoint
any counsel to 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 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 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 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.”
12. It is apt to note here that in the said decision it has also been
held that from the scheme of CrPC, the legislative intention is manifestly
clear that prosecution in a Sessions Court cannot be conducted by anyone
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 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 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
if the court thinks that the cause of justice would be served better by
granting such permission the 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.
14. 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 Shiv Kumar (supra), 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 (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 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.
15. In Sundeep Kumar Bafna (supra), the Court was dealing 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 that was posed
before another three-Judge Bench was 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 of a private lawyer 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 the High Court permitted only the
submission of written argument after the closure of evidence. Upholding the
view of the High Court, this 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 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 Kumar (supra) has been referred to in the said
judgment and the Court has made a distinction between the role of the
public prosecutor and the role of a complainant before the two trials,
namely, the sessions trial and the trial before a Magistrate’s Court.
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.
Tulsi, 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.
18. We have already explained the distinction between Sections 301 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 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.
Tulsi but, no application was filed under Section 302 CrPC and, therefore,
the prayer was restricted to be heard which is postulated 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.
International (supra) so that the 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 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 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 merits of the application to
be filed.
21. The criminal appeal is, accordingly, disposed of.
...............................J.
[Dipak Misra]
...............................J.
New Delhi, [Adarsh Kumar Goel]
September 06, 2016
-----------------------
[1] Anthony D’Souza v. Mrs. Radhabai Brij Ratan Mohatta, 1984 (1) BC.R.
157
[2] (2001) 3 SCC 462
[3] (2014) 16 SCC 623
[4] (1999) 7 SCC 467
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