IMPORTANT POINTS
Under section 301 CrPC prosecution in a Sessions Court cannot be conducted by anyone other than the public prosecutor. Counsel for private person can act only under instructions of Public Prosecutor.
Section 302 is intended only for magistrate courts. Complainant seeking to conduct the case himself, has to file a written application making out a case so that the Magistrate can exercise the jurisdiction and form the requisite opinion. Section 302 applies to every stage including the stage of framing charge, if complainant is permitted by the Magistrate to conduct the prosecution.

JUDGMENT

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 Anthony D’Souza v. Mrs. Radhabai Brij Ratan Mohatta, 1984 (1) B.C.R. 157 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 t