Section 302 of crpc
AMAR RANU
(Querist) 11 August 2011
This query is : Resolved
Can a substituted/replaced representative on behalf of a corporate body in a private criminal case reappear before the same court and file a application u/s 302 of Crpc to represent the same case in his personal capacity?
If yes or no,kindly quote the authority.Whether such type of duel prosecutors are allowed simultaneously under the law in a same private criminal case?
Raj Kumar Makkad
(Expert) 11 August 2011
No. Such person cannot be permitted by tril court to represent the case in his personal capacity.
prashant pundhir
(Expert) 12 August 2011
Yes,it can be given but not for the purpose of conviction but for the justice .
THANKACHAN V P
(Expert) 12 August 2011
"Duel prosecutors" will not be allowed simultaneously". 302 is possible only in exceptional cases but private counsel can be allowed under 301 crpc for assisting prosecution.
2009 (2) KLT SN 46 (C.No. 49)
Hon'ble Mr. Justice R. Basant
Seleena v. State of Kerala
Crl. M.C. No.3631 of 2008
13.1.2009
Criminal P.C. 1973, Ss.301 & 302 - When permission is granted under S.301( 2), Public Prosecutor continues to be in charge, whereas when permission is granted under S.302, that seat is occupied by private counsel - Private Counsel when can be permitted to conduct prosecution.
@page-KLTSN47(C.No.49)#
Held: When permission is granted under S.302 Cr.P.C the private counsel engaged takes over the role of the Prosecutor whereas when permission is granted under S.301(2) Cr.P.C, the Public Prosecutor proceeds to conduct the prosecution and the pleader instructed by the complainant acts under the directions of the Public Prosecutor. When permission is granted under S.301(2) Cr.P.C, the Public Prosecutor continues to be in the driver's seat whereas when permission is granted under S.302 Cr.P.C. that seat is occupied by the private counsel. In the interests of a fair trial not a private party but a disinterested prosecutor is ideally suited to conduct a prosecution. Of course, in an appropriate case where the court is satisfied by exceptional reasons that justice may not be rendered in a criminal trial by the Prosecutor and there is need to appoint a private counsel to conduct the prosecution, such permission can be granted under S.302 Cr.P.C. That can only be in an exceptional case where the Public Prosecutor appointed by the State can thus be excluded from the conduct of the prosecution.
P.M. Habeeb For Petitioner
P.A. Salim (Public Prosecutor), Sheejo Chacko,
M.N. Manoj & A.G. Unnikrishnan For Respondent
ORDER
The petitioner is the de facto complainant in a prosecution for offences punishable under Ss. 354 and 506(ii) I.P.C. The crux of the allegations is that the de facto complainant was assaulted and intimidated on account of prior animosity. Cognizance has been taken on the basis of a final report submitted by the police. Trial is in progress. The petitioner came to this court earlier with a prayer that she may be permitted to engage a counsel to conduct the prosecution under S. 302 I.P.C. That petition was dismissed as per Annexure I order with the observation that the petitioner can move the learned Magistrate for the requisite permission under S. 302 Cr.P.C.
2. Thereafter, the petitioner filed Annexure II application before the learned Magistrate. The learned Magistrate on such application, proceeded to pass Annexure III order turning down the request of the petitioner to get the prosecution conducted by a counsel of her choice under S. 302 Cr.P.C. Thereupon the petitioner was examined. It is at this juncture, the petitioner has come to this court.
3. Arguments have been advanced before me of the principles and circumstances under which permission under S. 302 or 301(2)Cr.P.C. can be granted. I have been taken through the precedents which throw light on the distinction between the nature of permission under S. 302 Cr. P.C. viz a viz under S. 301(2) Cr.P.C. I must, in particular, state that the decisions in J.K. International v. State Government of N.C.T.Delhi, 2001 (1) KLT 870 (SC), Babu v. State of Kerala, 1984 KLT 1641, Subash Chandran v. State of Kerala,1981 KLT SN 69 (C.No.125, Chandradas v. State of Kerala, 2005 (2) KLT SN 23 (C.No.28) and Shiv Kumar v. Hukam Chand and Another, (1999) 7 SCC 467 have all been cited before me. It is unnecessary to advert to principles in any greater detail. When permission is granted under S. 302 Cr.P.C the private counsel engaged takes over the role of the Prosecutor whereas when permission is granted under S. 301(2) Cr.P.C, the Public Prosecutor proceeds to conduct the prosecution and the pleader instructed by the complainant acts under the directions of the Public Prosecutor. When permission is granted under S. 301(2) Cr.P.C, the Public Prosecutor continues to be in the driver's seat whereas when permission is granted under S. 302 Cr.P.C that set is occupied by the private counsel. The precedents referre above clearly show that in the interests of a fair trial not a private party but a disinterested prosecutor is ideally suited to conduct a prosecution. Of course, in an appropriate case where the court is satisfied by exceptional reasons that justice may not be rendered in a criminal trial by the Prosecutor and there is need to appoint a private counsel to conduct the prosecution, such permission can be granted under S. 302 Cr.P.C. That can only be in an exceptional case where the Public Prosecutor appointed by the State can thus be excluded from the conduct of the prosecution.
4. The learned Magistrate felt and the said contention is reiterated before me by the learned counsel for the accused that in Annexure A2 application filed by the petitioner, there is no sufficient ground revealed at all, which can persuade the court to grant the requisite permission under S. 302 Cr.P.C. I find merit in that contention. There is no allegation that the Public Prosecutor is interested in the accused or interested against the petitioner. There is no specific contention of any act of omission, commission or inadequacy on the part of the Public Prosecutor which could operate as an exceptional reason justifying the replacement of the Public Prosecutor by the private counsel. On a total consideration of the averments in Annexure A2, I am not persuaded to agree that extraordinary inherent jurisdiction under S. 482 Cr.P.C can, need or ought to be invoked to interfere with the discretion exercised by the learned Magistrate in the impugned order, The learned Magistrate has adverted to all the relevant aspects and appears to have sailed to the correct conclusion that there are no exceptional reasons justifying grant of permission under S. 302 Cr.P.C for the learned counsel for the petitioner to conduct the prosecution.
5. The learned counsel for the petitioner submits that if the averments in the petition be insufficient, what transpired after the impugned order, must persuade this court to accord the requisite sanction. According to him, the learned Public Prosecutor had not discharged his duties sufficiently when PW1 was in the box facing the cross-examination. I have been taken through the cross-examination. Certain suggestions have been thrown at the petitioner. In those suggestions it has been very specifically suggested that the petitioner along with another was conducting a brothel in the locality- and the local persons had raised objections against such activity. The suggestion may be true or false; but I am unable to agree that in this prosecution under S. 354 I.P.C, the conduct of the Prosecutor not objecting to this suggestion would in any way reveal bias or absence of efficient performance on the part of the Prosecutor.
6. I am, in these circumstances, satisfied that the impugned order does not warrant interference. I must however hasten to observe that the learned counsel for the petitioner must be permitted to act under S. 301(2) Cr.P.C and such a direction, I am satisfied, shall serve the interests of justice eminently.
7. In the result,
a) This Crl.M.C is dismissed.
b) But with the specific observation that the learned counsel for the petitioner shall be permitted to act strictly within the four walls of S. 301 Cr.P.C in this prosecution.
Hand over copy of this order to the learned counsel for the petitioner.
AMAR RANU
(Querist) 13 August 2011
Thank you very much Mr.Thanakachan for detailed response but moot question remains.
I would be grateful if some learned experts produce some credible authority,which clarifies that aforesaid section 302 of Crpc is not applicable to private criminal case.
