WHETHER THE ADVOCATE CAN PROSECUTE THE CASE ON BEHALF OF INFORMANT OR COMPLAINANT UNDER CRIMINAL PROCEDURE CODE INDEPENDENTLY?
In this connection Section 301 and 302 of Cr. P.C. is most important.
AT THE OUTSET it may be noted that S. 301 Cr. P.C. is Pari Materia to S. 338 of Bhartiya Nagrika Suraksha Sanhita, 2023 and 302 Cr. P.C. is Pari Materia to S. 339 of Bhartiya Nagrika Suraksha Sanhita, 2023.
Role of Advocate engaged by victim/informant/complainant is limited to the extent of filing written arguments after evidence of prosecution is closed, his role is only to assist prosecution and cannot be enlarged to give him free hand in conducting trial. The Complainant’s private Counsel can assist the P.P./A.P.O. as Section 301, Cr. P.C. is applicable to all the Courts of Criminal Jurisdiction. The word “conduct” in section 301(2) conveys the idea of leading and guiding; and the person who conducts the prosecution determines all important questions of policy involved in the course of the trial and the attitude to the adopted by the prosecution towards material objections raised or demands made by the accused with respect to the evidence.
On the contra Section 302 is applicable only to the Courts of Judicial Magistrate and an Advocate of the private party can act only after obtaining permission from the Courts of Judicial Magistrate in accordance with law. Section 302 empowers the Magistrate to grant permission to the complainant to conduct the prosecution independently. For this purpose, the complainant has to file an application before the Magistrate. Section 302 applies to every date as the complainant is permitted by the Magistrate to conduct the prosecution. This permission may be needed after cognizance.
Hon’ble the Supreme Court of India in Shiv Kumar vs Hukam Chand (1999) 7 SCC 467 SC :: AIROnline 1999 SC 46, (FB) at Para 14, held that A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court.
In Rekha Muraraka vs State of WB AIR 2020 SC 100 :: 2020 CRILJ 1322 SC :: (2020) 2 SCC 474 (DB) it has been held that the role of a victim’s counsel is made subject to the instructions of the Public Prosecutor, who occupies a prime position by virtue of the increased responsibilities shouldered by him with respect to the conduct of a criminal trial.
In Dhariwal Industries Ltd. vs Kishore Wadhwani AIR 2016 SC 4369 :: (2016) 10 SCC 378 (DB) it has been held, at Para 18, that 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 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. At Para 19, Apex Court held 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 (AIR 2001 SC 1142 :: (2001) 3 SCC 462 :: 2001 CRILJ 1264 SC (FB) so that the Magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.
In M/S J. K. International vs State Govt. of NCT of Delhi AIR 2001 SC 1142 :: (2001) 3 SCC 462 :: 2001 CRILJ 1264 SC (FB) at Para 12, it has been held that 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. 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 Courts 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 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.
CONCLUSION:
Advocate may appear on behalf of informant/victim but he is confined to assist the P.P./A.P.O. in conducting, who are the custodian of the case and Prosecuting Officers. He may file written arguments if permitted by Court. So far as appearance before Magistrate Court is concerned Advocate may do so, even in complaint case after cognizance, with the permission of the Court, U/S 302 Cr. P.C., by presenting application before the Court seeking such permission.
