India: Prosecution Of Criminal Case In Court By The Complainant- Sec. 302 Of Cr.P.C.

Last Updated: 16 April 2018
Article by Vaish Associates Advocates

Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

Section 302 of the Cr.P.C. (The Code of Criminal Procedure, 1973) and the two Judgments of the Hon'ble Supreme Court of India i.e. M/s. J.K. International vs. State, Govt of NCT of Delhi and Ors., AIR2001SC 1142 (http://supremecourtofindia.nic.in/jonew/judis/17616.pdf) and Dhariwal Industries Ltd. vs. Kishore Wadhwani and Ors., AIR2016SC 4369 (http://supremecourtofindia.nic.in/jonew/judis/43935.pdf), are the answer to the proposition that in the case of Magistrate Trial, a Complainant or any other person can, in addition to the Public Prosecutor, assist the Court and participate in the conduct of the Trial. The mandate of the Hon'ble Supreme Court of India in the above mentioned 2 cases is also the law of the land and binding on all Courts.

Section 302 of the Criminal Procedure Code states 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 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.

  1. Any person conducting the prosecution may do so personally or by a pleader.

In terms of the provision of Section 302 Cr.P.C, a Magistrate has the power to allow any person to appear personally or through a pleader, including complainant, to conduct prosecution.

The Hon'ble Supreme Court in the case of M/s. J.K. International vs. State, Govt of NCT of Delhi and Ors., AIR 2001 SC 1142 (http://supremecourtofindia.nic.in/jonew/judis/17616.pdf) , while overruling the decision of the Hon'ble High Court, wherein the question before the Hon'ble Court observed and held as under:

"But when the complainant wishes to be heard when the criminal proceedings are sought to be quashed, it would be a negation of justice to him if he is foreclosed from being heard even after he makes a request to the court in that behalf. What is the advantage of the court in telling him that he would not be heard at all even at the risk of the criminal proceedings initiated by him being quashed. It is no solace to him to be told that if the criminal proceedings are quashed he may have the right to challenge it before the higher forums...."

" 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.."

"In this context it is appropriate to mention that when the trial is before a magistrate court the scope of any other private person intending to participate in the conduct of the prosecution is still wider. This can be noticed from Section 302 of the Code..."

"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 any one 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 courts 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 restricted and is made subject to the control of the Public Prosecutor."

In the above case, the Hon'ble Supreme Court has held that the scope of allowing any private person intending to participate in the conduct of the prosecution is wider under Section 302 of Cr.P.C. and on a request of a party, if the court thinks that the cause of justice would be served better by granting such permission the courts should generally grant such permission.

Similarly, from the judgment of the Hon'ble Supreme Court in the case of Dhariwal Industries Ltd. vs. Kishore Wadhwani and Ors., AIR2016SC 4369 (http://supremecourtofindia.nic.in/jonew/judis/43935.pdf) , it is evident that under Section 302 of Cr.P.C, at the stage of framing of charge, the Complainant can be allowed to conduct the proceedings.

The scheme envisaged in the Code of Criminal procedure (for short the Code) 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.

The private person who is permitted to conduct prosecution in the magistrates 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 any one 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 courts 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 restricted and is made subject to the control of the Public Prosecutor.

*Vijay Pal Dalmia, Advocate Partn er Vaish Associat es Advocates
Email:vpdalmia@vaishlaw.com Mobile.: +91 9810081079

© 2018, Vaish Associates Advocates,
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Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

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