Dhariwal Industries Ltd. vs Kishore Wadhwani .

REPORTABLE

IN THE SUPREME COURT OF INDIA.

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 859 OF 2016 (@ S.L.P.(Criminal) No. 5717 of 2012)

Dhariwal Industries Ltd. …Appellant

VERSUS

Kishore Wadhwani & Ors. …Respondents

JUDGMENT

Dipak Misra, J.

Leave granted.

2. The present appeal, by special leave, assails the order dated 13 th

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 Signature Not Verified

heard at the stage of framing of charge under Section 239 of the Code Digitally signed by SAPNA BISHT Date: 2016.09.14 17:07:37 IST Reason:

of Criminal Procedure (for short, “CrPC”), by expressing the view that

the role of the complainant is limited under Section 301 CrPC and he 2

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.

3

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 D'Souza's 1 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 to the extent that the Counsel engaged by respondent no. 2 shall act under the directions of the Assistant Public Prosecutor in-charge of the case.”

1 Anthony D’Souza v. Mrs. Radhabai Brij Ratan Mohatta, 1984 (1) BC.R. 157 4

6. Questioning the legal propriety and the approach of the High

Court, it is submitted by Mr. K.T.S. Tulsi, learned senior counsel

appearing for the appellant that the High Court has gravely erred by

placing reliance on Section 301 CrPC and completely ignoring the

stipulations inherent in Section 302 CrPC. According to Mr. Tulsi,

there is a distinction between a trial before a Magistrate and a

sessions trial and Section 302 CrPC has exclusive application to a

magisterial trial and hence, the complainant can address the Court

directly, if permitted by the Court. To strengthen the said submission,

he has commended us to the authorities in J.K. International v.

State (Govt. of NCT of Delhi) and others2 and Sundeep Kumar

Bafna v. State of Maharashtra and another3.

7. Mr. Vikas Singh, learned senior counsel, in his turn, contends

that Section 301 CrPC is applicable to all categories of cases and

therefore a complainant is entitled to assist the Court under the

directions of the public prosecutor. That apart, submits Mr. Singh, he

has the only other liberty to file the written arguments with the

permission of the court. Mr. Singh would vehemently urge that the

appellant had never sought to conduct the case under Section 302

CrPC and as envisaged, no application in that regard was filed and,

therefore, no fault can be filed with the order of the High Court. It is 2 (2001) 3 SCC 462 3 (2014) 16 SCC 623 5

further submission that as the factual matrix would exposit, the

learned Magistrate allowed the prayer on the basis of an oral

submission which is one under Section 301 CrPC and, in such a

situation, no laxity should be given to him to take the benefit of

Section 302 CrPC. Additionally, propones Mr. Singh, that there is

slight disharmony in the pronouncement in J.K. International

(supra) and Shiv Kumar v. Hukam Chand and another4 which

needs to be reconciled.

8. Section 301 CrPC reads as follows:-

“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.”

9. In Shiv Kumar (supra), the Court has clearly held that the said

provision applies to the trials before the Magistrate as well as Court of

Session.

10. Section 302 CrPC which is pertinent for the present case reads

as follows:-

4 (1999) 7 SCC 467 6

“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.”

11. In Shiv Kumar (supra) interpreting the said provision, the

Court has ruled:-

“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 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.

xxx xxx xxx

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 the Public Prosecutor,(vide Section 2(u) of the Code).

7 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.”

12. It is apt to note here that in the said decision 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.

13. In J.K. International (supra), a three-Judge Bench was 8

adverting in detail to Section 302 CrPC. In that context, it has been

opined that 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 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.

14. Having carefully perused both the decisions, we do not perceive

any kind of anomaly either in the analysis or ultimate conclusion

arrived by the Court. We may note with profit that in Shiv Kumar

(supra), 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

(supra) from the passage we have quoted hereinbefore it is evident that 9

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.

15. In Sundeep Kumar Bafna (supra), 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:-

“… in Shiv Kumar v. Hukam Chand (supra), the question that was posed before another three-Judge Bench was whether an aggrieved has a right to engage its own coun- sel 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, and the High Court permitted only the submission of written argument after the closure of evi-

10 dence. 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 impermis- sible in the Sessions by virtue of Section 225 CrPC, which pointedly states that the prosecution shall be conducted by a Public Prosecutor. …”

16. Mr. Tulsi, learned senior counsel, has drawn inspiration from the

aforesaid authority as Shiv Kumar (supra) 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.

17. 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 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.

18. 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 11

engaged by him is required to act under the directions of 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.

19. 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 (supra)

so that the Magistrate can exercise the jurisdiction as vested in him

and form the requisite opinion.

20. 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 12

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. 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.

21. The criminal appeal is, accordingly, disposed of.

...............................J. [Dipak Misra]

...............................J. New Delhi, [Adarsh Kumar Goel] September 06, 2016 13

ITEM NO.6 COURT NO.4 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.) No(s). 5717/2012

(Arising out of impugned final judgment and order dated 13/02/2012 in CRWP No. 3438/2010 passed by the High Court of Bombay)

DHARIWAL INDUSTRIES LTD. Petitioner(s)

VERSUS KISHORE WADHWANI & ORS. Respondent(s) (With appln. (s) for directions and exemption from filing O.T. and permission to file additional documents and permission to file volume-II and stay and office report) Date : 06/09/2016 This petition was called on for hearing today. CORAM :

HON'BLE MR. JUSTICE DIPAK MISRA HON'BLE MR. JUSTICE ADARSH KUMAR GOEL

For Petitioner(s) Mr. K.T.S. Tulsi,Sr. Adv.

Mr. P.H. Parekh,Sr. Adv.

Mr. Lalit Chauhan,Adv.

Mr. Raj Kamal,Adv.

Mr. Vishal Prasad,Adv.

Ms. Ritika Sethi,Adv.

Mr. K. Raj,Adv.

Mr. Abhishek Vinod Deshmukh,Adv.

For M/s. Parekh & Co.

For Respondent(s) Dr. A.M. Singhvi,Sr. Adv.

Mr. Vikas Singh,Sr. Adv.

Mrs. Priya Puri,Adv.

Mr. Amit Bhandari,Adv.

Mr. Anil Naidu,Adv.

Ms. Churchi M.,Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal is disposed of in terms of the signed reportable judgment.

(SAPNA BISHT) (H.S.PARASHER) SR. P.A. COURT MASTER

(Signed reportable judgment is placed on the file)