He has to file a written application making out a case, so that the magistrate can exercise the jurisdiction as vested in him and form the requisite opinion, the Bench said.
Examining the difference between Section 301 and Section 302 of the Code of Criminal Procedure (CrPC), the Supreme Court in Dhariwal Industries Ltd. vs. Kishore Wadhwani & Ors, has held that Section 302 CrPC confers power on a magistrate to grant permission to the complainant to conduct the prosecution independently. The court also made it clear that the said provision applies to every stage, including the stage of framing charge.
A Bench comprising Justice Dipak Mishra and Justice Adarsh Kumar Goel also clarified 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, so that the magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.
The private complainant, who is the appellant before the Supreme Court, was permitted by the magistrate to be heard at the stage of framing of charge. However, the high court modified the said order 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 the assistant public prosecutor in charge of the case.
Magistrate Can Permit The Complainant To Conduct Prosecution Independently
Referring to a three-judge Bench decision in J.K. International vs. State, the court observed: “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 the 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. “
The court further observed: “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.”
Written Application Must
However, the Bench added: “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.”
Section 302 CrPC Applies To Every Stage
Allowing the appellant to file an application under Section 302 CrPC before the magistrate, the Bench said: “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.“
Read the Judgment here.