AMIR HAMZA SHAIKH & ORS.versusSTATE OF MAHARASHTRA & ANR.

                          [2019] 11 S.C.R. 11
                                           597                           597


                 AMIR HAMZA SHAIKH & ORS.                                A
                                  v.
              STATE OF MAHARASHTRA & ANR.
                 (Criminal Appeal No. 1217 of 2019)
                         AUGUST 07, 2019                                 B
      [L. NAGESHWARA RAO AND HEMANT GUPTA, JJ.]
       Code of Criminal Procedure, 1973 – ss.301, 302 – Permission
to conduct prosecution – Respondent sought permission to prosecute
in terms of s.302 Cr.P.C. for offences punishable u/ss. 498A, 406
                                                                         C
r/w. 34 of IPC – Trial court declined the permission – However, the
High Court granted permission to conduct prosecution – On appeal,
held: Though the Magistrate is not bound to grant permission at
the mere asking but the victim has a right to assist the Court in a
trial before the Magistrate – The Magistrate may consider as to
whether the victim is in a position to assist the Court and as to        D
whether the trial does not involve such complexities which cannot
be handled by the victim – On satisfaction of such facts, the
Magistrate would be within its jurisdiction to grant of permission
to the victim to take over the inquiry of the pendency before the
Magistrate – High Court granted permission to the complainant to
                                                                         E
prosecute the trial without examining the said parameters –
Therefore, order passed by the High Court and that of Magistrate
set aside – The matter is remitted to the Magistrate to consider as to
whether the complainant should be granted permission to prosecute
the offences u/ss.498-A, 406 r/w. s.34 IPC.
                                                                         F
      Allowing the appeal, the Court
      HELD: 1. In J.K. International v. State (Govt. of NCT of
Delhi) & Ors., it has been held that if the cause of justice would
be better served by granting such permission, the Magistrate’s
court would generally grant such permission. An aggrieved
private person is not altogether eclipsed from the scenario when         G
the criminal court take cognizance of the offences based on the
report submitted by the police. [Para 13][607-E]


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                                 597
598            SUPREME COURT REPORTS                     [2019] 11 S.C.R.


A           2. Mallikarjun Kodagali (Dead) represented through LRs v.
      State of Karnataka & Ors., this Court approved the Justice
      Malimath Committee, wherein the victim’s right to participate in
      the criminal proceedings which includes right to be impleaded,
      right to know, right to be heard and right to assist the court in
      the pursuit of truth had been recognised. [Para 14][607-F]
B
             3. In view of such principles laid down, this Court finds that
      though the Magistrate is not bound to grant permission at the
      mere asking but the victim has a right to assist the Court in a
      trial before the Magistrate. The Magistrate may consider as to
      whether the victim is in a position to assist the Court and as to
C     whether the trial does not involve such complexities which cannot
      be handled by the victim. On satisfaction of such facts, the
      Magistrate would be within its jurisdiction to grant of permission
      to the victim to take over the inquiry of the pendency before the
      Magistrate. [Para 15][607-G-H; 608-A]
D           4. The High Court has granted permission to the
      complainant to prosecute the trial without examining the
      parameters laid down hereinabove. Therefore, the order passed
      by the High Court and that of the Magistrate is set aside. The
      matter is remitted to the Magistrate to consider as to whether
E     the complainant should be granted permission to prosecute the
      offences under Sections 498-A, 406 read with Section 34 IPC.
      [Para 16][608-B]
            Shiv Kumar v. Hukam Chand & Anr. (1999) 7 SCC
            467 : [1999] 2 Suppl. SCR 81; J.K. International v.
F           State (Govt. of NCT of Delhi) & Ors. (2001) 3 SCC
            462 : [2001] 2 SCR 90; Dhariwal Industries Limited v.
            Kishore Wadhwani & Ors. (2016) 10 SCC 378 : [2016]
            5 SCR 212; Mallikarjun Kodagali (Dead) represented
            through LRs v. State of Karnataka & Ors. (2019) 2
            SCC 752 – relied on.
G
            Babu v. State of Kerala 1984 CriLJ 499 – referred to.




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              AMIR HAMZA SHAIKH & ORS. v. STATE OF                           599
                     MAHARASHTRA & ANR.

                          Case Law Reference                                 A
[1999] 2 Suppl. SCR 81            relied on        Para 8
[2001] 2 SCR 90                   relied on        Para 9
[2016] 5 SCR 212                  relied on        Para 10
(2019) 2 SCC 752                  relied on        Para 11                   B
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1217 of 2019
      From the Judgment and Order dated 27.11.2018 of the High Court
of Judicature at Bombay in Criminal Writ Petition No. 4939 of 2018
                                                                             C
      Ashok Arora, Surjeet Singh, Vishwa Pal Singh, Advs. for the
Appellants.
      Nishant Ramakantrao Katneshwarkar, Anoop Kandari,
Karamsingh Rajput, Abdulrahiman Tambdi, S. Gowthaman, Advs. for
the Respondents.                                                             D
          The Judgment of the Court was delivered by
          HEMANT GUPTA, J.
          1. Leave granted.
       2. The challenge in the present appeal is to an order passed by the   E
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 1,
was allowed.                                                                 F
       3. The respondent No. 2 had sought permission to conduct
prosecution in terms of Section 302 of the Code of Criminal Procedure,
19732 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
                                                                             G
only for the reason that the application has been made by an aggrieved
party.


1
    for short, ‘IPC
2
    for short, ‘Code’.                                                       H
600                SUPREME COURT REPORTS                        [2019] 11 S.C.R.


A             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.
B
      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
C     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
D               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.
E
                (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
F     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
      Kerala3 examined as to when permission should be granted. The Court
G
      held as under:
                “3. …In Subhash Chandran v. State of Kerala 1981 KLT Case
                No. 125 a learned Jude of this Court held:

      3
H         1984 CriL J 499
  AMIR HAMZA SHAIKH & ORS. v. STATE OF                                    601
 MAHARASHTRA & ANR. [HEMANT GUPTA, J.]

   Whether permission should be granted or not is a matter left to        A
   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
                                                                          B
   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            C
   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           D
be conducted by any person or by a pleader instructed by him.
The distinction is when permission under Section 302 is given the
Public Prosecutor or the Assistant Public Prosecutor as the case
may be disappears from the scene and the pleader engaged by
the person who will invariably be the de facto complainant will be
in full charge of the prosecution.………………This does not                     E
mean that permission cannot at all be granted under Section 302.
Under very exceptional circumstances permission can be granted
under Section 302. Otherwise, there is no reason why the provision
is there in the Code. But that is to be done only in cases where the
circumstances are such that a denial of permission under Section          F
302 will stand in the way of meeting out, justice in the case. A
mere apprehension of a party that the Public Prosecutor will not
be serious in conducting the prosecution simply because a
conviction or an acquittal in the case will affect another case
pending will not by itself be enough. At the same time, if the
apprehension of the party is going to materialise the court can           G
pending the trial, grant permission under Section 302 even if a
request for permission was rejected at the outset.”


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602                SUPREME COURT REPORTS                        [2019] 11 S.C.R.


A            8. This Court in Shiv Kumar v. Hukam Chand & Anr.4 has
      examined the distinction between the scope of Section 301 and 302 of
      the Code. It has been held that Section 302 of the Code is applicable in
      respect of the offences triable by Magistrate. It enables the Magistrate
      to permit any person to conduct the prosecution whereas in terms of
      Section 301 of the Code, any private person may instruct a pleader to
B
      act under the directions of the Public Prosecutor or Assistant Public
      Prosecutor in any trial before any court and to submit written arguments
      after the close of the evidence. This Court held as under:
               “12. In the backdrop of the above provisions we have to understand
               the purport of Section 301 of the Code. Unlike its succeeding
C              provision in the Code, the application of which is confined to
               Magistrate Courts, this particular section is applicable to all the
               courts of criminal jurisdiction. This distinction can be discerned
               from employment of the words “any court” in Section 301. In
               view of the provision made in the succeeding section as for
D              Magistrate Courts the insistence contained in Section 301(2) must
               be understood as applicable to all other courts without any
               exception. The first sub-section empowers the Public Prosecutor
               to plead in the court without any written authority, provided he is
               in charge of the case. The second sub-section, which is sought to
               be invoked by the appellant, imposes the curb on a counsel engaged
E              by any private party. It limits his role to act in the court during
               such prosecution “under the directions of the Public Prosecutor”.
               The only other liberty which he can possibly exercise is to submit
               written arguments after the closure of evidence in the trial, but
               that too can be done only if the court permits him to do so.
F              13. 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
G              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

      4
          (1999) 7 SCC 467
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            AMIR HAMZA SHAIKH & ORS. v. STATE OF                                    603
           MAHARASHTRA & ANR. [HEMANT GUPTA, J.]

         in fairness not only to the court and to the investigating agencies        A
         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, the Public Prosecutor has the added
                                                                                    B
         responsibility to bring it to the notice of the court if it comes to his
         knowledge. A private counsel, if allowed a 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.”                       C
       9. In a three Judge Bench of this Court in J.K. International v.
State (Govt. of NCT of Delhi) & Ors.5, where offences under Sections
420, 406 and 120-B IPC were investigated and charge sheet filed on the
basis of complaint of the appellant, the accused filed a petition for quashing
of the charges in which the complainant wanted to be heard. The Public              D
Prosecutor filed an application before the Magistrate for amending the
charge for incorporating two more offences which were exclusively
triable by the Court of Sessions. The Magistrate dismissed the application
but the said order was not challenged by the prosecution. It was held
that the scheme in the Code indicates that the person who is aggrieved
by the offence committed is not altogether wiped out from the scene of              E
the trial merely because the investigation was taken over by the police.
This Court while considering the provisions of sub-section (2) of Section
301 and Section 302, held as under:
         “9. The scheme envisaged in the Code of Criminal Procedure
         indicates that a person who is aggrieved by the offence committed,         F
         is not altogether wiped out from the scenario of the trial merely
         because the investigation was taken over by the police and the
         charge-sheet was laid by them. Even the fact that the court had
         taken cognizance of the offence is not sufficient to debar him
         from reaching the court for ventilating his grievance. Even in the         G
         Sessions Court, where the Public Prosecutor is the only authority
         empowered to conduct the prosecution as per Section 225 of the
         Code, a private person who is aggrieved by the offence involved

5
    (2001) 3 SCC 462
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604      SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A     in the case is not altogether debarred from participating in the
      trial. This can be discerned from Section 301(2) of the Code which
      reads thus:
         “301. (2) If in any such case any private person instructs a
         pleader to prosecute any person in any court, the Public
B        Prosecutor or Assistant Public Prosecutor in charge of the
         case shall conduct the prosecution, and the pleader so instructed
         shall act therein under the directions of the Public Prosecutor
         or Assistant Public Prosecutor, and may, with the permission
         of the court, submit written arguments after the evidence is
         closed in the case.”
C
      10. The said provision falls within the Chapter titled “General
      Provisions as to Inquiries and Trials”. When such a role is permit-
      ted to be played by a private person, though it is a limited role,
      even in the Sessions Courts, that is enough to show that the pri-
      vate person, if he is aggrieved, is not wiped off from the proceed-
D     ings in the criminal court merely because the case was charge-
      sheeted by the police. It has to be stated further, that the court is
      given power to permit even such private person to submit his
      written arguments in the court including the Sessions Court. If he
      submits any such written arguments the court has a duty to con-
E     sider such arguments before taking a decision.
      11. In view of such a scheme as delineated above how can it be
      said that the aggrieved private person must keep himself outside
      the corridors of the court when the case involving his grievance
      regarding the offence alleged to have been committed by the per-
F     sons arrayed as accused is tried or considered by the court. In
      this context it is appropriate to mention that when the trial is be-
      fore a Magistrate’s Court the scope of any other private person
      intending to participate in the conduct of the prosecution is still
      wider…

G               xx                xx               xx
      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
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             AMIR HAMZA SHAIKH & ORS. v. STATE OF                                 605
            MAHARASHTRA & ANR. [HEMANT GUPTA, J.]

         Magistrate and seek permission to conduct the prosecution by             A
         himself. It is open to the court to consider his request. If the court
         thinks that the cause of justice would be served better by granting
         such permission the court would generally grant such permission.
         Of course, this wider amplitude is limited to Magistrates’ Courts,
         as the right of such private individual to participate in the conduct
                                                                                  B
         of prosecution in the Sessions Court is very much restricted and
         is made subject to the control of the Public Prosecutor. The lim-
         ited role which a private person can be permitted to play for pros-
         ecution in the Sessions Court has been adverted to above. All
         these would show that an aggrieved private person is not alto-
         gether to be eclipsed from the scenario when the criminal court          C
         takes cognizance of the offences based on the report submitted
         by the police. The reality cannot be overlooked that the genesis in
         almost all such cases is the grievance of one or more individual
         that they were wronged by the accused by committing offences
         against them.”
                                                                                  D
       10. Both the aforesaid judgments came up for consideration before
this Court in Dhariwal Industries Limited v. Kishore Wadhwani &
Ors.6 wherein the learned Magistrate had held that the complainant is
not alien to the proceeding and, therefore, he has a right to be heard
even at the stage of framing of charge. The High Court modified the
order and permitted the counsel engaged by the complainant to act under           E
the directions of the Public Prosecutor in charge of the case. The Court
held as under:
         “13. Having carefully perused both the decisions, we do not
         perceive any kind of anomaly either in the analysis or ultimate
         conclusion arrived at by the Court. We may note with profit that         F
         in Shiv Kumar [Shiv Kumar v. Hukam Chand, (1999) 7 SCC
         467 : 1999 SCC (Cri) 1277] , the Court was dealing with the ambit
         and sweep of Section 301 CrPC and in that context observed that
         Section 302 CrPC is intended only for the Magistrate’s Court. In
         J.K. International [J.K. International v. State (Govt. of NCT            G
         of Delhi), (2001) 3 SCC 462 : 2001 SCC (Cri) 547] from the
         passage we have quoted hereinbefore it is evident that the Court
         has expressed the view that a private person can be permitted to

6
    (2016) 10 SCC 378
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606                SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A              conduct the prosecution in the Magistrate’s Court and can engage
               a counsel to do the needful on his behalf. The further observation
               therein is that when permission is sought to conduct the prosecution
               by a private person, it is open to the court to consider his request.
               The Court has proceeded to state that the court has to form an
               opinion that cause of justice would be best subserved and it is
B
               better to grant such permission. And, it would generally grant such
               permission. Thus, there is no cleavage of opinion.”
             11. In Mallikarjun Kodagali (Dead) represented through LRs
      v. State of Karnataka & Ors. 7, three Judge Bench of this Court
      considered the victim’s right to file an appeal in terms of proviso to
C     Section 372 inserted by Central Act No. 5 of 2009 w.e.f. December 31,
      2009. This Court considered 154th Report of the Law Commission of
      India submitted on August 14, 1996; the Report of the Committee on
      Reforms of Criminal Justice System commonly known as the Report of
      the Justice Malimath Committee; Draft National Policy on Criminal Justice
D     of July, 2007 known as the Professor Madhava Menon Committee and
      221st Report of the Law Commission of India, April, 2009, and observed
      as under:
               “5. Parliament also has been proactive in recognising the rights
               of victims of an offence. One such recognition is through the
E              provisions of Chapter XXI-A CrPC which deals with plea
               bargaining. Parliament has recognised the rights of a victim to
               participate in a mutually satisfactory disposition of the case. This
               is a great leap forward in the recognition of the right of a victim to
               participate in the proceedings of a non-compoundable case.
               Similarly, Parliament has amended CrPC introducing the right of
F              appeal to the victim of an offence, in certain circumstances. The
               present appeals deal with this right incorporated in the proviso to
               Section 372 CrPC.
                             xx            xx                xx

G              8. The rights of victims, and indeed victimology, is an evolving
               jurisprudence and it is more than appropriate to move forward in
               a positive direction, rather than stand still or worse, take a step
               backward. A voice has been given to victims of crime by
               Parliament and the judiciary and that voice needs to be heard, and
      7
H         (2019) 2 SCC 752
          AMIR HAMZA SHAIKH & ORS. v. STATE OF                                 607
         MAHARASHTRA & ANR. [HEMANT GUPTA, J.]

      if not already heard, it needs to be raised to a higher decibel so       A
      that it is clearly heard.”
      12. The Court dealt with Justice Malimath Committee in the
following manner:
      “16. Thereafter, in the substantive Chapter on Justice to Victims,
      it is noted that victims of crime, in many jurisdictions, have the       B
      right to participate in the proceedings and to receive compensation
      for injury suffered. It was noted as follows:
          “6.3. Basically two types of rights are recognised in many
          jurisdictions, particularly in continental countries in respect of
          victims of crime. They are, firstly, the victim’s right to           C
          participate in criminal proceedings (right to be impleaded, right
          to know, right to be heard and right to assist the court in the
          pursuit of truth) and secondly, the right to seek and receive
          compensation from the criminal court itself for injuries suffered
          as well as appropriate interim reliefs in the course of              D
          proceedings.””
      13. In J.K. International, it has been held that if the cause of
justice would be better served by granting such permission, the
Magistrate’s court would generally grant such permission. An aggrieved
private person is not altogether eclipsed from the scenario when the           E
criminal court take cognizance of the offences based on the report
submitted by the police.
       14. In Mallikarjun Kodagali, this Court approved the Justice
Malimath Committee, wherein the victim’s right to participate in the
criminal proceedings which includes right to be impleaded, right to know,      F
right to be heard and right to assist the court in the pursuit of truth had
been recognised.
       15. In view of such principles laid down, we find that though the
Magistrate is not bound to grant permission at the mere asking but the
victim has a right to assist the Court in a trial before the Magistrate. The
                                                                               G
Magistrate may consider 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. On satisfaction of
such facts, the Magistrate would be within its jurisdiction to grant of

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608                SUPREME COURT REPORTS                    [2019] 11 S.C.R.


A     permission to the victim to take over the inquiry of the pendency before
      the Magistrate.
            16. We find that the High Court has granted permission to the
      complainant to prosecute the trial without examining the parameters laid
      down hereinabove. Therefore, we set aside the order passed by the
B     High Court and that of the Magistrate. The matter is remitted to the
      Magistrate to consider as to whether the complainant should be granted
      permission to prosecute the offences under Sections 498-A, 406 read
      with Section 34 IPC. The appeal is allowed.


C     Ankit Gyan                                                 Appeal allowed.




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E




F




G




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