Supreme Court: Explaining the difference between Sections 301 and 302 CrPC, the Court said that 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, however, 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. It was further clarified that the role of the informant or the private party is limited during the prosecution of a case in a Court of Session and the counsel engaged by him is required to act under the directions of public prosecutor.

The bench of Dipak Misra and A.K. Goel, JJ also clarified 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. However, when a complainant wants to take the benefit as provided under Section 302 CrPC, he has to file a written application so that the Magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.

The Court also referred to J.K. International v. State (Govt. of NCT of Delhi), (2001) 3 SCC 462, where it was held that 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. Also, when permission is sought to conduct the prosecution by a private person, it is open to the court to consider his request and 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. [Dhariwal Industries Ltd. v. Kishore Wadhwani, 2016 SCC OnLine SC 935, decided on 06.09.2016]

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