IMPORTANT POINT
On satisfaction of such facts as to whether the victim is in a position to assist the Court and as to whether the trial does not involve such complexities which cannot be handled by the victim, the Magistrate may grant permission to the victim to take over the inquiry of the pendency before the Magistrate.

JUDGMENT

HEMANT GUPTA, J.

1) Leave granted.

2) The challenge in the present appeal is to an order passed by the High Court of judicature at Bombay on November 27, 2018 whereby an order passed by the Magistrate declining permission to respondent No. 2 to prosecute the appellants-accused for the offences punishable under Sections 498A, 406 read with Section 34 of Indian Penal Code, 1860 [for short, ‘IPC’], was allowed.

3) The respondent No. 2 had sought permission to conduct prosecution in terms of Section 302 of the Code of Criminal Procedure, 1973 [for short, ‘Code’] for the aforesaid offences. The learned Magistrate declined permission without giving any reason but the High Court considered the judgments on the subject and granted permission to conduct prosecution only for the reason that the application has been made by an aggrieved party.

4) Learned counsel for the appellants argued that the High Court is not required to give permission to prosecute mechanically only for the reason that such permission is sought by an aggrieved party. It is contended that the prosecution is to be conducted by a Public Prosecutor who is an officer of the Court and required to assist the Court to do justice rather than to be vindictive and take side with any of the parties. If the party is allowed to proceed to take over the investigation, the avowed object of fairness in the criminal justice dispensation system shall be shaken.

5) The present Section 302 of the Code is similar to Section 495 of the Code of Criminal Procedure, 1898. Section 302 of the Code reads 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 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.

(2) Any person conducting the prosecution may do so personally or by a pleader.”

6) It may be noticed that under Section 301 of the Code, the Public Prosecutor may appear and plead without any authority before any Court in which that case is under inquiry, trial or appeal and any person may instruct a pleader who shall act under the directions of the Public Prosecutor and may with the permission of the Court submit written submissions.

7) A Division Bench of Kerala High Court in Babu v. State of Kerala, 1984 CrLJ 499 examined as to when permission should be granted. The Court held as under:

“3. …In Subhash Chandran v. State of Kerala 1981 KLT 125 : State of Kerala a learned Jude of this Court held:

Whether permission should be granted or not is a matter left to the discretion of the Court, the discretion being used in a judicial manner. It is true that the petitioner as the son of the deceased and as a person who has a right to make out that there was rashness and negligence on the part of the accused and claim damages from him may be interested in the prosecution. But that fact is not by itself a ground for permitting him to conduct the prosecution in the place of the Assistant Public Prosecutor who is in charge of the case. It is settled law that where a cognisable offence is committed and a prosecution is launched by the State it is for the Public Prosecutor to attend to the prosecution. The object of a criminal prosecution is not to vindicate the grievances of a private person.

4. Under Section 301, a Pleader engaged by a private person can assist the Public Prosecutor or the Assistant Public Prosecutor as the case may be in the conduct of the prosecution while under Section 302 the Magistrate may permit the prosecution itself to be conducted by any person or by a pleader instructed by him. The distinction is whe