1 Reserved on :
28. 06.2024 R Pronounced on :
19. 07.2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE19H DAY OF JULY, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.15007 OF2024(GM – RES) BETWEEN:
1. . SRI YADHU KUMAR R., AGED ABOUT40YEARS, S/O SRI RAMANNA, R/AT: NO.183, 1ST FLOOR, 5TH MAIN, 7TH CROSS, M.P.M LAYOUT, MALATHALLI, NAGARABHAVI, ULLAL UPANAGARA, BENGALURU – 560 056. 2 . SMT. CHIKKATHAYAMMA AGED ABOUT59YEARS, W/O RAMANNA. 3 . SRI RAMANNA AGED ABOUT63YEARS, S/O LATE BYRAPPA. 4 . SRI DINESH KUMAR AGED ABOUT39YEARS, S/O RAMANNA, PETITIONERS No.2 TO42 RESIDING AT NO . 418, B.M.JAGADISH LAYOUT, BIDADI TOWN, RAMANAGARA DISTRICT – 562 109. 5 . SRI SURESH AGED ABOUT43YEARS, S/O PUTTASWAMAIAH. 6 . SMT. SHOBHA AGED ABOUT37YEARS, D/O RAMANNA, W/O SURESH PETITIONERS NO.5 TO6RESIDING AT ANASUYAMMA LAYOUT, BIDADI TOWN, RAMANAGARA DISTRICT – 562 109. ... PETITIONERS (BY SRI C.V.SRINIVASA, ADVOCATE) AND:
1. . THE STATE OF KARNATAKA BY THE STATION HOUSE OFFICER, BIDADI POLICE STATION, RAMANAGARA DISTRICT – 562 109. 2 . SMT. BHUVANESHWARI @ PAVITHRA W/O YADHU KUMAR, D/O KRISHNAIAH, AGED ABOUT36YEARS, RESIDING AT SANGANABASVAN DODDI, KASABA HOBLI, RAMANAGARA TALUK, RAMANAGARA DISTRICT – 562 109. 3 ... RESPONDENTS (BY SRI B.N.JAGADEESH, ADDL.SPP FOR R-1; SRI A.V.RAMAKRISHNA, ADVOCATE FOR R-2) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA READ WITH SECTION482OF CR.P.C. PRAYING TO i) QUASH THE
ORDERDATED0506/2024 IN CC No.44/2014 ANNEXURE-A WHICH ARISES OUT OF THE CASE IN CRIME No.294/2013 REGISTERED AT BIDADI POLICE STATION, RAMANAGARA AND WHICH IS PRESENTLY PENDING ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, RAMANAGARA. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON2806.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDERThe petitioners are before this Court calling in question an order dated 05-06-2024 passed by the Principal Civil Judge and JMFC at Ramanagara in C.C.No.44 of 2014 arising out of crime in Crime No.294 of 2013.
2. Heard Sri C.V. Srinivasa, learned counsel appearing for the petitioners, Sri B.N. Jagadeesh, learned Additional State Public Prosecutor for respondent No.1 and Sri A.V. Ramakrishna, learned counsel appearing for respondent No.2. 4
3. Facts, in brief, germane are as follows:- The petitioners are accused 1 to 6 and the 2nd respondent is the complainant. The offences alleged are the ones punishable under Sections 498A, 504, 323, 34 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. A marital discard leads the complainant to register a crime in Crime No.294 of 2013. The police after investigation file a charge sheet and the matter is being tried by the concerned Court in C.C.No.44 of 2014. The issue in the lis does not concern merit of the matter before the concerned Court, but it concerns a particular order passed during the trial. It is the case of the petitioners that they have been duly appearing before the concerned Court and are represented before the trial Court on every date of hearing. When such was the stage set down for hearing of applications including the one filed by the petitioners under Section 239 of the CrPC, the 2nd respondent/complainant files an application under Section 301 of the CrPC through a private counsel along with a letter from the prosecution/Department. Later the said application was withdrawn as not pressed and another application is filed under Section 302(1) of the CrPC. Objections were called for from the petitioners to the application so filed. The 5 petitioners have filed objections thereto. The concerned Court allows the application filed under Section 302(1) of the CrPC in terms of the impugned order. It is that order that has driven the petitioners to this Court in the subject petition.
4. The learned counsel appearing for the petitioners Sri C.V.Srinivasa would vehemently contend that Section 302 of the CrPC is akin to Section 24 of the CrPC and both are identical. If Section 24 requires grave necessity of appointment of a Special Public Prosecutor, it is open to the Government to appoint one under Section 24 of the CrPC and same goes with Section 302. As a matter of course, the complainant should not be permitted to engage a private Advocate, unless it is so permitted in an application being filed before the concerned Court and the concerned Court passing necessary orders in accordance with law.
5. Per contra, the learned Additional State Public Prosecutor would contend that Sections 24 and 302 CrPC operate on different circumstance. The rigour under Section 24 is not necessary to be followed under Section 302. He would submit that nonetheless 6 there should be an order from the hands of the learned Magistrate in that regard.
6. The learned counsel representing the 2nd respondent/complainant would submit that the Public Prosecutor is not properly conducting the proceedings. Therefore, an application or requisition had to be made to the State. It is then the Government permits the trial to be conducted by a private counsel under Section 302 of the CrPC. No fault can be found with the said action is the submission of the learned counsel for the 2nd respondent.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The afore-narrated facts are not in dispute. The issue lies in a narrow compass as it requires interpretation of Sections 301 and 302 of the CrPC. They read as follows:
7.
301. Appearance by Public Prosecutors.—(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. (2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public 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.
302. 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 a 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.” Chapter XXIV of the CrPC deals with general provisions as to enquiries and trials. Section 301 deals with appearance by public prosecutor. Section 302 deals with permission to conduct prosecution. Section 301 permits a Public Prosecutor or an Assistant Public Prosecutor to appear and plead without any written authority before any Court. Sub-section (2) of Section 301 is indicative of 8 the fact that, in any such case a private person instructs a pleader to prosecute any person in the Court, the Public Prosecutor or Assistant Public Prosecutor in-charge of the case shall conduct prosecution and the pleader so instructed shall act therein under the directions of the Public Prosecutor or the Assistant Public prosecutor with the permission of the Court and is also permitted to furnish written arguments. Section 302 operates in a different circumstance. It deals with permission for conduct of prosecution. Any Magistrate enquiring into or trying a case may permit the prosecution to be conducted by any person other than the Public Prosecutor or the Assistant Public Prosecutor without any permission, provided that no Police Officer would be permitted to conduct prosecution. The rigour of both these provisions need not detain this Court for long or delve deep into the matter.
9. The Apex Court in the case of J.K. INTERNATIONAL v. STATE(GOVT. OF NCT OF DELHI)1 has held as follows: “….. …. …..
11. In view of such a scheme as delineated above how can it be said that the aggrieved private person must keep 1 (2001) 3 SCC4629 himself outside the corridors of the court when the case involving his grievance regarding the offence alleged to have been committed by the persons arrayed as accused is tried or considered by the court. In this context it is appropriate to mention that when the trial is before a Magistrate's Court the scope of any other private person intending to participate in the conduct of the prosecution is still wider. This can be noticed from Section 302 of the Code which reads thus: “302. (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a 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.
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 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 of prosecution in the Sessions Court is very much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes 10 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.” (Emphasis supplied) The Apex Court holds that the person who is permitted to conduct prosecution in the Magistrate’s Court can engage a counsel to conduct the needful in the court in his/her behalf. It further amplifies the position that every private person if aggrieved by the offence committed against him, he can approach the Magistrate and conduct prosecution by himself and the Magistrate’s Courts have a right of permitting such private individual to participate in the conduct of prosecution. In a subsequent judgment which considers the judgment in the case of J.K. INTERNATIONAL, the Apex Court in the case of DHARIWAL INDUSTRIES LIMITED v. KISHORE WADHWANI2 considers the purport of both Sections 301 and 302 of the CrPC. Section 301 applies only to cases where trials are conducted before the Court of Sessions. In the case at hand, the trial is before the Court of Magistrate. Therefore, the application so filed under Section 301 was rightly withdrawn, as it was not a case 2 (2016) 10 SCC37811 concerning trial by the Court of Sessions. What is later preferred is application under Section 302. The Apex Court considers the said provision in the case of DHARIWAL INDUSTRIES LIMITED and holds as follows: “….. …. ….
9. Section 302 CrPC which is pertinent for the present case reads as follows:
302. 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.
10. In Shiv Kumar [Shiv Kumar v. Hukam Chand, (1999) 7 SCC467 1999 SCC (Cri) 1277]. interpreting the said provision, the Court has ruled: (SCC pp. 471-72, paras 8-9 & 11-12) “8. It must be noted that the latter provision is intended only for Magistrate Courts. It enables the Magistrate to permit any person to conduct the prosecution. The only rider is that Magistrate cannot give such permission to a police officer below the rank of Inspector. Such person need not necessarily be a Public Prosecutor.
9. In the Magistrate's Court anybody (except a police officer below the rank of Inspector) can conduct prosecution, if 12 the Magistrate permits him to do so. Once the permission is granted the person concerned can appoint any counsel to conduct the prosecution on his behalf in the Magistrate's Court. *** 11. The old Criminal Procedure Code (1898) contained an identical provision in Section 270 thereof. A Public Prosecutor means “any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor” [vide Section 2(u) of the Code]..
12. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding 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 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 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.
11. It is apt to note here that in the said decision in Shiv Kumar case [Shiv Kumar v. Hukam Chand, (1999) 7 SCC467:
1999. SCC (Cri) 1277]. it has also been held that from the scheme of CrPC, the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. It is because the legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. The Court has further observed that a Public Prosecutor is not expected to show the thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case.
12. In J.K. International [J.K. International v. State (Govt. of NCT of Delhi), (2001) 3 SCC462:
2001. SCC (Cri) 13 547]. , a three-Judge Bench was adverting in detail to Section 302 CrPC. In that context, it has been opined that (SCC pp. 466-67, para
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. If a private person is aggrieved by the offence committed against him or against any one in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. This Court further proceeded to state that it is open to the court to consider his request and if the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission. Clarifying further, it has been held that the said wider amplitude is limited to the Magistrate's Court, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the Public Prosecutor.
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 in Shiv Kumar [Shiv Kumar v. Hukam Chand, (1999) 7 SCC467:
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 of Delhi), (2001) 3 SCC462:
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 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 better to grant such permission. And, it would generally grant such permission. Thus, there is no cleavage of opinion.
14. In Sundeep Kumar Bafna [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC623: (2015) 3 14 SCC (Cri) 558]. the Court was dealing with rejection of an order of bail under Section 439 CrPC and what is meant by “custody”. Though the context was different, it is noticeable that the Court has adverted to the role of Public Prosecutor and private counsel in prosecution and in that regard, has held as follows: (SCC p. 651, para
30) “30. … in Shiv Kumar v. Hukam Chand [Shiv Kumar v. Hukam Chand, (1999) 7 SCC467:
1999. SCC (Cri) 1277]. , the question that was posed before another three- Judge Bench was whether an aggrieved has a right to engage its own counsel to conduct the prosecution despite the presence of the Public Prosecutor. This Court duly noted that the role of the Public Prosecutor was upholding the law and putting together a sound prosecution; and that the presence of a private lawyer would inexorably undermine the fairness and impartiality which must be the hallmark, attribute and distinction of every proper prosecution. In that case the advocate appointed by the aggrieved party ventured to conduct the cross-examination of the witness which was allowed by the trial court but was reversed in revision by the High Court [Hukam Chand v. State of Haryana, 1996 SCC OnLine P&H1366: (1997) 115 PLR406 , and the High Court permitted only the submission of written argument after the closure of evidence. Upholding the view of the High Court, this Court went on to observe that before the Magistrate any person (except a police officer below the rank of Inspector) could conduct the prosecution, but that this laxity is impermissible in the Sessions by virtue of Section 225 CrPC, which pointedly states that the prosecution shall be conducted by a Public Prosecutor.
15. Mr Tulsi, learned Senior Counsel, has drawn inspiration from the aforesaid authority as Shiv Kumar [Shiv Kumar v. Hukam Chand, (1999) 7 SCC467:
1999. SCC (Cri) 1277]. has been referred to in the said judgment and the Court has made a distinction between the role of the Public Prosecutor and the role of a complainant before the two trials, namely, the Sessions trial and the trial before a Magistrate's Court.
16. As the factual score of the case at hand is concerned, it is noticeable that the trial court, on the basis of an oral prayer, had permitted the appellant to be heard along with the Public Prosecutor. Mr Tulsi, learned Senior Counsel submitted such a prayer was made before the trial Magistrate and he had no grievance at that stage 15 but the grievance has arisen because of the interference of the High Court that he can only participate under the directions of the Assistant Public Prosecutor in charge of the case which is postulated under Section 301 CrPC.
17. We have already explained the distinction between Sections 301 and 302 CrPC. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by him is required to act under the directions of the Public Prosecutor. As far as Section 302 CrPC is concerned, power is conferred on the Magistrate to grant permission to the complainant to conduct the prosecution independently.
18. We would have proceeded to deal with the relief prayed for by Mr Tulsi but, no application was filed under Section 302 CrPC and, therefore, the prayer was restricted to be heard which is postulated under Section 301 CrPC. Mr Singh, learned Senior Counsel appearing for the respondents would contend that an application has to be filed while seeking permission. Bestowing our anxious consideration, we are obliged to think that when a complainant wants to take the benefit as provided under Section 302 CrPC, he has to file a written application making out a case in terms of J.K. International [J.K. International v. State (Govt. of NCT of Delhi), (2001) 3 SCC462:
2001. SCC (Cri) 547]. so that the Magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.
19. Mr Tulsi, learned Senior Counsel appearing for the appellant submits that he intends to file an application before the learned Magistrate and hence, liberty may be granted. Mr Singh has seriously opposed the same. Regard being had to the rivalised submissions, we only observe that it would be open to the appellant, if so advised, to file an application under Section 302 CrPC before the learned Magistrate. It may be clearly stated here that the said provision 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. If an application in this regard is filed, it shall be dealt with on its own merits. 16 Needless to say, the order passed by the learned Magistrate or that of the High Court will not be an impediment in dealing with the application to be filed under Section 302 CrPC. It is also necessary to add that we have not expressed any opinion on the merits of the application to be filed.” (Emphasis supplied) 10. The issue in the case at hand will have to be considered on the bedrock of interpretation of the Apex Court in the aforesaid cases. The order impugned reads as follows: “REASONS9Point No.1: This case was registered against the accused for the offences punishable under Section 498-A, 504, 323 R/w 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act. The Investigating Officer has filed the charge sheet against the accused Nos. 1 to 7. Later, the accused No.7 has not appeared before the Court and the prosecution has not secured her presence, in spite of sufficient opportunity. Hence, the accused No.7 was split up from the case and a split up charge sheet was filed against her and a separate was registered based on the same against the accused No.7.
10. The learned counsel for first informant/victim has argued that the victim has every right to participate in the proceedings through an advocate of her choice and this Court can exercise the power under Section 302 of Cr.P.C., and to permit an advocate to conduct the prosecution. It is further submitted that, this application is in between the Court and the victim and the accused has no say in the matter. He further submitted that accused No.1 is a police officer and the investigation officer is also a police officer and the police are always in touch with the learned APP and hence first informant/victim intends to prosecute this case through her Advocate. Accordingly, he requested the Court to allow the application. 17
11. On the other hand, the learned counsel for accused Nos. 1 to 6 has vehemently argued that as per Section 24 of Cr.P.C., the case shall be conducted by the Assistant Public Prosecutor and Special Prosecutor appointed by the Government and herein this case there is no order appointing the Advocate as Special Prosecutor and the letter submitted by the victim/CW-1 is not an order of the Government under Section 24(8) of Cr.P.C. He further submitted that, the learned APP is efficient to conduct the prosecution and no reasons are forth coming in the application to allow the application and there is no public interest in this case and this case is in between the husband and wife. Accordingly he requested the Court to dismiss the application.
12. I have carefully perused the materials on record and considered the submissions made by both sides. The learned counsel for accused has relied on the decision of the Hon’ble Supreme Court of India passed in Dhariwal Industries Limited Vs. Kishor Wagadhani and others reported in (2016) 10 SCC378 13. I have carefully perused the said judgment. In the said case an oral application was filed by the complainant to permit the victim to hear her along with the Assistant Public Prosecutor. In the said case, the Hon’ble Supreme Court has explained the distinction between Section 301 and 302 of Cr.P.C. and has held that the role of the informant or private party is limited during the prosecution of the case in a court of Session. It was further held that, the counsel engaged by the first informant is required to act under the directions of Public Prosecutor. But as far as Section 302 of Cr.P.C. is concerned, the power is conferred on the Magistrate to grant permission to the complainant to conduct the prosecution independently. In view of the above said judgment, this Court has got power to permit the first informant/victim to prosecute the case through her advocate.
14. The learned counsel for the accused has relied on the decision of the Hon’ble Supreme Court passed in Shivakumar v. Kukul Chand which was referred at Para No.15 of the above referred Dhariwal Industries judgment. But in the said case the prosecution was before the sessions court and it was held that sessions case cannot be conducted by any one, other than the 18 public prosecutor. But this is not a session case and hence the above referred judgment is not helpful to the accused.
15. On the other hand in view of judgment relied upon by the accused in Dhariwal Industries referred above, the power is conferred on this court to grant permission to the first informant/victim to conduct the prosecution independently. It was further observed in the said case that written application shall be filed under Section 302 of Cr.P.C. seeking benefit of the said Section. In the present case on hand, the first informant/victim has filed an application under Section 302 of Cr.P.C. Hence, the above referred judgment relied upon by the accused is helpful to the first informant/victim.
16. The learned counsel for the accused has relied on the another judgment of the Hon’ble Supreme Court of India passed in Amir Hamza Shaik and others v. State of Maharashtra and another reported in (2019) 8 387. I have carefully perused the said judgment. In the said case also an application was filed by the complainant under Section 302 of Cr.P.C. and the Magistrate has declined permission without giving any reasons and the Hon’ble High Court has allowed the said application and granted permission only on the ground that applicant was made by aggrieved party. However, by relying on its earlier decision, the Hon’ble Apex Court has observed that, if the cause of justice would be better served by granting such permission, the Magistrate court would generally grant such permission.
17. In this case also first informant/victim has filed an application to permit her to prosecute this case independently. It is not in dispute that the accused No.1 is a police officer. The investigation officer of this case is also conducted by the police officer. Hence, investigation officer and accused No.1 are from the same department. Hence, there may be apprehension for the first informant/victim that she may not get justice, if the case is conducted by the learned APP. Having considered the entire materials on records, this Court is of opinion that cause of justice would be better served by permitting the first informant/victim to prosecute this case independently through her advocate. If the first informant/victim is permitted to prosecute the case through her advocate Sri B.C. Venkatesh, having Roll No.KAR/825/1993, who is a senior member of 19 Ramanagara Bar Association, it will meet the ends of justice and she will get fair trial. If the application is allowed, no hardship will be caused to accused, on the other hand if the application is dismissed the first informant/victim will be put to irreparable loss. Having considered the materials on record, this court is of the opinion that this is a fit case to permit the first informant/victim to conduct this case through her advocate and there will be a fair trial.
18. The learned counsel for accused has relied on the decision of the Hon’ble high Court of Karnataka passed in K.V. Shivareddy v. State of Karnataka and others reported in ILR2005Karnataka 4780. I have carefully perused the said judgment. In the said case a Special Public Prosecutor was appointed in a case before the Sessions Court and same was made all the representation given by the wife of deceased in the said case and the same was challenged by the accused in the said case. But, in the said case, the application under Section 302 of Cr.P.C. was not an issue before the Hon’ble High Court of Karnataka. On the other hand the said case relates to Sessions Court. In view of the judgment of Hon’ble Supreme Court of India passed in Dhariwal Industries referred above, there is a distinction between Sections 301 and 302 of Cr.P.C. The role of first informant or private party is limited during the prosecution of the case before the Sessions Court. But, as far as Section 302 of Cr.P.C. is concerned, the power is conferred on the Magistrate to grant permission to the complainant to conduct the prosecution independently.
19. By considering fact that the accused No.1 is a police officer and the investigation officer is also a police officer, this court is of the opinion that cause of justice would be better served in this case if this Court grant permission under Section 302 of Cr.P.C. As already observed above, if the application is allowed, no hardship will be caused to the accused. Accordingly, this court is of the opinion that the first informant/victim has made out grounds to permit her to conduct the case through an Advocate of her choice. Accordingly, I answered point No.1 in the Affirmative.
20. Point No.2: In view of my findings on the point No.1, I proceed to pass the following:
20.
ORDERThe application filed by the first informant/victim/ CW-1 under Section 302(1) of Cr.P.C is hereby allowed and she is permitted to prosecute this case independently through her Advocate Sri D.C. Venkatesh, Ramangara having Roll No.KAR/825/1993. To hear on application filed by the accused under Section 239 of Cr.P.C. finally by 07-06-2024.” The concerned Court notices entire spectrum of law including the ones that are quoted hereinabove and holds that under Section 302 of the CrPC the Magistrate can either accept or decline permission without any reason. If the issue was coming under Section 301 of the CrPC, it would have been an altogether different circumstance. The Apex Court, in the case of DHARIWAL INDUSTRIES LIMITED supra, clearly elucidates the purport of both the provisions. Under Section 302 it is for the complainant to get the matter prosecuted with the permission of the Court. What is projected in the case at hand is that, it is pursuant to an order passed by the prosecution on 17-10-2023. The said order reads as follows: “²æêÀÄw ¨sÀÄವ(cid:4)ೇಶ(cid:8)(cid:9) ಉ: ಪ(cid:12)ತ(cid:14), PÉÆÃA AiÀÄzsÀÄPÀĪÀiÁgï 1B, ©.JA.dUÀ¢Ã±ï ¯ÉÃOmï, 21 ©q(cid:15)À (cid:16)ೌ(cid:18), (cid:19)ಾಮನಗರ (cid:25)(cid:26)ೆ(cid:27).-.ಇವ(cid:9)(cid:30)ೆ, (cid:31)ಾನ (cid:19)ೇ, (cid:12)ಷಯ: (cid:31)ಾನ ಪ(cid:14)#ಾನ $%ೆ(&ೆ.«) ಮತು( %ೆ.ಎಂ.ಎ+., (cid:4)ಾ -ಾಲಯ, (cid:19)ಾಮನಗರ ಇ°è /ಾ0 ಇರುವ $.$.ಸಂ2ೆ :44/2014 ಮತು( $.$.ಸಂ2ೆ :230/2020 ರ ಪ(cid:14)ಕರಣದ6(cid:27) (cid:12)7ೇಷ ಸ&ಾ8(cid:9) ಅ:;ೕಜಕರನು= (cid:4)ೇ>ಸುವ ಕು(cid:9)ತು. G¯ÉèÃR: ¤ªÀÄä ¥ÀvÀæ ¢£ÁAPÀ:30.09.2023. ****** ?.ೕಲ@ಂಡ (cid:12)ಷಯ&ೆ@ ಸಂಬಂC$ದಂDೆ ಉ(cid:26)ೆ(cid:27)ೕEತ ಪತ(cid:14)ದ6(cid:27) (cid:31)ಾನ ಪ(cid:14)#ಾನ $.%ೆ(0.(cid:12)) ಮತು( %ೆ.ಎಂ.ಎ+.$ (cid:4)ಾ -ಾಲಯ, (cid:19)ಾಮನಗರ ಇ6(cid:27) /ಾ0 ಇರುವ $.$.ಸಂ2ೆ :44/2014 ಮತು( $.$.ನಂ:230/2020 ರ ಪ(cid:14)ಕರಣದ6(cid:27) F(cid:14)ೕ G.$.Hೆಂಕ(cid:16)ೇI, ವ0ೕಲರು, (cid:19)ಾಮನಗರ ಇªರÀನು= (cid:12)7ೇಷ ಸ&ಾ8(cid:9) ಅ:;ೕಜಕರ(cid:4)ಾ=J (cid:4)ೇ>ಸ/ೇ&ೆಂದು &ೋ(cid:9)ರುL(ೕ(cid:9). ?.ೕಲ@ಂಡ ಪ(cid:14)ಕರಣವM Nಾ.ದಂ.ಸಂ. ಕಲಂ:
498. ಎ), 504, 323 (cid:19)ೆ/(cid:12) 34, 3 ಮತು( 4 O.,. ಆRS ರ ಅನ(cid:8)ಯ Tಾಖ(cid:26)ಾJದುV, (cid:31)ಾನ ಪ(cid:14)#ಾನ $.%ೆ(0.(cid:12)) ಮತು( %ೆ.ಎಂ.ಎ+., (cid:4)ಾ -ಾಲಯ, (cid:19)ಾಮನಗರ ಇ°è /ಾ0 ಇರುವMದ(cid:9)ಂದ (cid:31)ಾನ ಸWೕ8ಚY (cid:4)ಾ -ಾಲಯವM0cid:14)>ನZ ?.ೕಲ[ನ(cid:12) ಸಂ2ೆ :859/2016 ರ6(cid:27) (ಎ\.ಎZ.(cid:12)(ಆ)ನಂ.5717/2012) #ಾ(cid:9)Hಾಲ ಇಂಡ$].ೕ\ °. (cid:12)ರುದ^ 07ೆ_ೕ‘ HಾTಾ(cid:8)a ಮತು( ಇತರರ ಪ(cid:14)ಕರಣದ6(cid:27) (cid:15)(cid:4)ಾಂಕ:06-09-2016 ರಂದು aೕOರುವ Lೕ,8ನ ಅನ(cid:8)ಯ($ಆ‘,$-302), ,-ಾ8ದುTಾರ(cid:19)ೇ, (cid:12)bಾರcಾ (cid:4)ಾ -ಾಲಯದ6(cid:27) ಅ(cid:25)8 ಸ6(cid:27)$, (cid:4)ಾ -ಾಲಯವM aೕಡಬಹುTಾದ ಆTೇ±ದÀ ನ(cid:8)ಯ aೕವM ಇef$ರುವ ವ0ೕಲರನು= (cid:12)7ೇಷ ಸ&ಾ8(cid:9) ಅ:;ೕಜಕರ(cid:4)ಾ=J (cid:4)ೇ>ಸ&ೊಳhಬಹುTಾJTೆ ಎಂದು ಈ ಮೂಲಕ Ljಸ(cid:26)ಾJTೆ. Much is made out of the order supra contending that the State could not have intervened and passed an order. Therefore, objections were filed by the petitioners before the concerned Court relying on DHARIWAL INDUSTRIES LIMITED’s case itself. The 22 contention is that there was no application filed. An application was in fact filed, but it was based upon the order passed by the State. Therefore, it is not a case where there was no application and appointment is made. Wherefore, no fault can be found with the order of the learned Magistrate permitting the complainant to engage a private counsel or a Special Public Prosecutor. A caveat, this would not become applicable to applications under Section 301 of the Cr.P.C, which is applicable to the issue being tried before the Court of Sessions. The subject matter of the order is limited to Section 302 of the Cr.P.C.
11. For the aforesaid reasons, finding no merit in the petition, the petition stands rejected. Interim order, if any operating, shall stand dissolved. Sd/- JUDGE bkp CT:MJ