By the Court.- This petition is filed, seeking for a direction to set aside the order dated 26.8.2010 in CMP No.3482 of 2010 by the learned Judicial Magistrate No.1, Krishnagiri and permit the petitioner/de facto complainant/victim to engage a counsel of her choice to conduct the prosecution in the above CC No. 115/2010 on the me of the learned Judicial Magistrate No.I, Krishnagiri.

2. The petitioner is the defacto-complainant, who gave a complaint for the alleged offence punishable under Sections 498(A), 323, 294(b) r/w 109, I.P.C. The husband and the relatives of the petitioner are the accused. The matter was investigated by the respondent and on filing of the charge-sheet, the learned Judicial Magistrate took the case on file in CC No. 115/2010.

3. Pending trial, the petitioner had filed an application under Sec.302 of Criminal Procedure Code to permit the petitioner/ defecto-complainant to engage a counsel of her choice to conduct the prosecution of the case in C.C.No.115/2010.

4. The learned Magistrate passed order on 26.8.2010 in CMP No.3482 of 2010 stating that the “Petitioner/defacto-complainant is allowed to engage counsel at her choice and such counsel shall act under the direction from the Public Prosecutor. Accordingly the petition disposed of”. Aggrieved by the restricted permission, the petitioner is before this Court under Section 482, Cr.P.C.

5. Mr. S. Ananthanarayanan learned counsel appearing for the petitioner would submit that under Section 302, Cr.P.C., the petitioner/defacto-complainant is entitled to conduct the prosecution by engaging a counsel. The learned counsel relied on a decision reported in 2000 MLJ (Crl) 145, Shiv Kumar v. Hakum Chand and another, wherein the Apex Court has dealt in detail about the powers of the Court and rights of the defacto-complainant in conducting the prosecution, The Apex Court has held as follows :

"10. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The Legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution, must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused, even if the defence counsel overlooked it. Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor".

6. The learned counsel also relied on a decision reported in 2001 (3) SCC 462 : 2001 (1) East Cr C 241 (SC), J.K. International v. State (Govt. of NCT of Delhi) and others, wherein the Apex Court has again held thus :

"12. 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 anyone 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