Prosecution; Dhariwal Industries Ltd. Vs. Kishore Wadhwani [Supreme Court of India, 06-09-2016]

Criminal Procedure Code, 1973 – Ss. 301 & 302 – Appearance by Public Prosecutors – Permission to conduct prosecution – Distinction between – Explained – 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.



[Dipak Misra] and [Adarsh Kumar Goel] JJ.

September 06, 2016


(@ S.L.P.(Criminal) No. 5717 of 2012)

Dhariwal Industries Ltd. …Appellant


Kishore Wadhwani & Ors. …Respondents


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 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 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’s1 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.”

1 Anthony D’Souza v. Mrs. Radhabai Brij Ratan Mohatta, 1984 (1) BC.R. 157

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, (2001) 3 SCC 462


Sundeep Kumar Bafna v. State of Maharashtra and another, (2014) 16 SCC 623

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