In a major relief to complainants, the Supreme Court has, in a landmark judgment, ruled that a magistrate can give them permission to conduct prosecution independently on their own.
Interpreting Sections 301 and 302 of the Code of Criminal Procedure (Cr.P.C.), a bench of Justices Dipak Mishra and Adarsh Kumar Goel held that section 302 Cr.P.C. empowers a magistrate to grant such a permission to a complainant.
This would go a long way in redressing of the grievances of complainants, given the competence of public prosecutors commonly known as the ‘sarkari vakil’ and in a majority of cases their involvement or connivance with the accused rather than aiding the complainants and the prosecution.
It is common knowledge that prosecutors connive with the accused for various considerations and they are appointed given their proximity to the powers that be rather than competency and capability throughout the country.
The Apex Court also made it clear that it is applicable during every stage of a case, including the stage of framing charge. The only rider is that a complainant has to file a written application for conducting the prosecution himself on which the magistrate concerned can exercise the jurisdiction.
A private complainant wanted to “directly” address the court which was permitted by the magistrate who held that the complainant is not “alien” to the case. However, on appeal by the accused, the Bombay high court modified the order holding that the complainant cannot be allowed to “take over the control of prosecution by directly addressing the court”.
On further appeal by the complainant in the instant case (Dhariwal Industries Ltd. Versus Kishore Wadhwani & Ors. Criminal Appeal No. 859 of 2016), the Apex Court said, referring to an earlier decision in J.K. International vs. State, : “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 on his behalf. If a private person is aggrieved by the offence committed against him or against anyone in whom he is interested, he can approach the magistrate and seek permission to conduct the prosecution by himself.”.
The most visible case was the Jessica Lal murder case in which for the first time the then Chief Justice of India, V.N.Khare, held that complainants’ or the victims’ family have the right to appeal and intervene in the prosecution case.
Now in the instant case, the Apex Court further clarified that “power is conferred on the magistrate to grant permission to the complainant to conduct the prosecution independently.” It said “It may be clearly stated here that the said provision (Section 302 Cr.P.C.) 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.
The Apex Court reasoned that if the trial court formed an opinion that the “cause of justice would be best subserved”, it could allow the complainant to lead the prosecution independently.