Case Note & Summary
The appeal arose from an order of the Bombay High Court allowing respondent No. 2 (the complainant) to conduct prosecution under Section 302 of the Code of Criminal Procedure, 1973 (CrPC) for offences under Sections 498A, 406 read with Section 34 of the Indian Penal Code, 1860. The Magistrate had earlier declined permission without assigning reasons. The High Court reversed, holding that permission should be granted because the applicant is an aggrieved party. The appellants, accused in the case, challenged this order before the Supreme Court. The Supreme Court examined the scope of Section 302 CrPC, which permits a Magistrate to allow any person other than a police officer below the rank of Inspector to conduct prosecution. The Court noted that Section 302 is similar to Section 495 of the old Code of 1898 and is applicable only to Magistrate Courts. The Court distinguished Section 302 from Section 301 CrPC, which allows a private person to instruct a pleader to assist the Public Prosecutor. Under Section 302, the Public Prosecutor is replaced by the private prosecutor. The Court referred to precedents, including Babu v. State of Kerala (1984 CriLJ 499), which held that permission under Section 302 should be granted only in exceptional circumstances where denial would stand in the way of justice. The Court also cited Shiv Kumar v. Hukam Chand (1999) 7 SCC 467, which emphasized that the Public Prosecutor must act fairly and not be vindictive, and that a private prosecutor may focus solely on conviction. The Supreme Court held that the High Court erred in granting permission mechanically merely because the applicant was an aggrieved party. The Court set aside the High Court's order and remitted the matter to the Magistrate for fresh consideration of the application under Section 302 CrPC, directing the Magistrate to pass a reasoned order in accordance with law.
Headnote
A) Criminal Procedure - Permission to Conduct Prosecution - Section 302 CrPC, 1973 - Private Person - The Magistrate declined permission to the complainant to conduct prosecution under Section 302 CrPC. The High Court reversed the order solely on the ground that the applicant is an aggrieved party. The Supreme Court held that permission under Section 302 CrPC cannot be granted mechanically; it requires exceptional circumstances where denial would stand in the way of justice. The High Court's order was set aside and the matter remitted for fresh consideration. (Paras 1-11) B) Criminal Procedure - Distinction Between Sections 301 and 302 CrPC - Section 301 CrPC allows a private person to instruct a pleader to act under the directions of the Public Prosecutor, while Section 302 CrPC permits a private person to conduct prosecution in Magistrate Courts, replacing the Public Prosecutor. The latter is an exceptional power to be exercised sparingly. (Paras 5-8) C) Criminal Procedure - Role of Public Prosecutor - The Public Prosecutor is an officer of the court and must act fairly, not vindictively. A private prosecutor may focus on conviction regardless of merits, hence the need for judicial discretion under Section 302 CrPC. (Paras 4, 8)
Issue of Consideration
Whether the High Court was justified in granting permission to respondent No. 2 to conduct prosecution under Section 302 of the Code of Criminal Procedure, 1973, merely on the ground that the applicant is an aggrieved party, without considering the requirement of exceptional circumstances.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court order dated November 27, 2018, and remitted the matter to the Magistrate for fresh consideration of the application under Section 302 CrPC. The Magistrate was directed to pass a reasoned order in accordance with law, considering the principles laid down in the judgment.
Law Points
- Section 302 CrPC
- permission to conduct prosecution
- private person
- exceptional circumstances
- discretion of Magistrate
- role of Public Prosecutor
- Section 301 CrPC
- distinction between Sections 301 and 302 CrPC
