# DHARIWAL INDUSTRIES LTD v. KISHORE WADHWANI & ORS

- **Citation:** [2016] 5 S.C.R. 212
- **Court:** Supreme Court of India
- **Decided:** 2016-09-06
- **Case number:** Criminal Appeal No. 859of2016
- **Bench:** Dipak Misra, Adarsh Kumar Goel
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dhariwal-industries-ltd-v-kishore-wadhwani-ors-31333
- **Pages:** 9

## Headnote

Code of Criminal Procedure, 1973: ss. 301, 302 - Permission
to conduct prosecution - Role of complainant - Held: Role of
informant or the party is limited during the prosecution of a case in
a Court of Session - Counsel engaged by him is required to act
under the directions of public prosecutor - As far as s.302 is
concerned, power is conferred on the Magistrate to grant permission
to the complainant to conduct the prosecution independently -
However, for availing benefit of s.302, he has to file a written
application making out a case so that magistrate can exercise the
;urisdiction as vested in him and form theJequisite opinion - s.302
applies to every stage including the stage of framing charge
inasmuch as the complainant is permitted by the Magistrate to
conduct the prosecution.
J.K. International v. State (Govt. of NCT of Delhi) and
Ors. (2001) 3 SCC 462 : 2001(2) SCR 90; Sundeep
Kumar Bafna v. State of Maharashtra and Anr. (2014)
16 SCC 623 : 2014 (4) SCR 486; Shiv Kumar v. Hukam
Chand and Am: (1999) 7 SCC 467 : 1999 (2) Suppl.
SCR 81 - relied on.
Case Law Reference
2001(2) SCR 90
2014 (4) SCR 486
1999 (2) Suppl. SCR 81
. relied on
relied on
relied on
Para6
Para6
Para6
CRIMINALA.PPELLATE JURISDICTION: Criminal Appeal No.
859 of2016.
From the Judgment and Order dated 13.02.2012 of the High Court
of Bombay in CRWPNo. 3438 of2010.
212
DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI &
213
ORS.
K. T. S. Tulsi, P.H. Parekh, Sr. Advs., Lal it Chauhan, Raj Kamal,
A
Vishal Prasad, Ms. Ritika Sethi, K. Raj , Abhishek Vinod Deshmukh
(for Mis Parekh & Co.), Advs. for the Appellant.
Dr. A. M. Singhvi, Vikas Singh, Sr. Advs., Priya Puri, Amit
Bhandari, Anil Naidu, Ms. Churchi M., Advs. for the Respondents.
The Judgment of the Cou11 was delivered by
DIPAK MISRA, J. I. Leave granted.
2. The present appeal, by special leave, assails the order dated
J3 1h February, 2012 passed by the High Court of Judicature at Bombay
in Criminal Writ Petition No. 3438 of20 l 0 whereby the learned Single
Judge has modified the order dated 30'h August, 20 I 0 whereunder the
Additional Chief Metropolitan Magistrate, 81h Court, Esplanade, Mumbai
in C.C.No.927/PW/2007 had pennitted the appellant to be heard atthe
stage of framing of charge under Section 239 of the Code of Criminal
Procedure (for short, "CrPC"), by expressing the view that the role of
the complainant is limited under Section 301 CrPC and he 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
I 09, 193, 196, 200, 465, 467 and 471 read with Section 120-B oflndian
Penal Code (!PC). 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 chargesheet 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.
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SUPREME COURT REPORTS
[2016] 5 S.C.R.
5. Being dissatisfied with the aforesaid order, the accusedrespondents preferred the criminal writ petition before the High Court.
The High Court referred to Section 301 CrPC and certain authorities of
thi

## Text

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[2016] 5 S.C.R. 2 _12
DHARIWAL INDUSTRIES LTD.
v.
KISHORE WADHWANI & ORS.
(Criminal Appeal No. 859of2016)
SEPTEMBER 06, 2016
[DIPAK MISRA AND ADARSH KUMAR GOEL, JJ.]
Code of Criminal Procedure, 1973: ss. 301, 302 - Permission
to conduct prosecution - Role of complainant - Held: Role of
informant or the party is limited during the prosecution of a case in
a Court of Session - Counsel engaged by him is required to act
under the directions of public prosecutor - As far as s.302 is
concerned, power is conferred on the Magistrate to grant permission
to the complainant to conduct the prosecution independently -
However, for availing benefit of s.302, he has to file a written
application making out a case so that magistrate can exercise the
;urisdiction as vested in him and form theJequisite opinion - s.302
applies to every stage including the stage of framing charge
inasmuch as the complainant is permitted by the Magistrate to
conduct the prosecution.
J.K. International v. State (Govt. of NCT of Delhi) and
Ors. (2001) 3 SCC 462 : 2001(2) SCR 90; Sundeep
Kumar Bafna v. State of Maharashtra and Anr. (2014)
16 SCC 623 : 2014 (4) SCR 486; Shiv Kumar v. Hukam
Chand and Am: (1999) 7 SCC 467 : 1999 (2) Suppl.
SCR 81 - relied on.
Case Law Reference
2001(2) SCR 90
2014 (4) SCR 486
1999 (2) Suppl. SCR 81
. relied on
relied on
relied on
Para6
Para6
Para6
CRIMINALA.PPELLATE JURISDICTION: Criminal Appeal No.
859 of2016.
From the Judgment and Order dated 13.02.2012 of the High Court
of Bombay in CRWPNo. 3438 of2010.
212
DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI &
213
ORS.
K. T. S. Tulsi, P.H. Parekh, Sr. Advs., Lal it Chauhan, Raj Kamal,
A
Vishal Prasad, Ms. Ritika Sethi, K. Raj , Abhishek Vinod Deshmukh
(for Mis Parekh & Co.), Advs. for the Appellant.
Dr. A. M. Singhvi, Vikas Singh, Sr. Advs., Priya Puri, Amit
Bhandari, Anil Naidu, Ms. Churchi M., Advs. for the Respondents.
The Judgment of the Cou11 was delivered by
DIPAK MISRA, J. I. Leave granted.
2. The present appeal, by special leave, assails the order dated
J3 1h February, 2012 passed by the High Court of Judicature at Bombay
in Criminal Writ Petition No. 3438 of20 l 0 whereby the learned Single
Judge has modified the order dated 30'h August, 20 I 0 whereunder the
Additional Chief Metropolitan Magistrate, 81h Court, Esplanade, Mumbai
in C.C.No.927/PW/2007 had pennitted the appellant to be heard atthe
stage of framing of charge under Section 239 of the Code of Criminal
Procedure (for short, "CrPC"), by expressing the view that the role of
the complainant is limited under Section 301 CrPC and he 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
I 09, 193, 196, 200, 465, 467 and 471 read with Section 120-B oflndian
Penal Code (!PC). 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 chargesheet 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.
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SUPREME COURT REPORTS
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5. Being dissatisfied with the aforesaid order, the accusedrespondents 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 30 I 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
Section 173(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. lfby 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 30 I 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 allo._wing 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."
6. Questioning the legal propriety and the approach of the High
H
1 Anthony D'Souza v. Mrs. Radhabai Brij Ratan Mahal/a. 1984 (I) BC.R. 157
DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI &
ORS. [DIPAK MISRA, J.]
Court, it is submitted by Mr. K.T.S. Tulsi, learned senior counsel appearing
for the appellant that the High c:;ourt has gravely erred by placing reliance
on Section 30 I CrPC and completely ignoring the stipulations inherent in
Section 302 Cr PC. 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 otl1ers1 and
Sundeep Kumar B<ifna v, State of Malum1shtra and anotlter3.
7. Mr. Vikas Singh, learned senior counsel, in his turn, contends
that Section 30 I Cr PC 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 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 another' which needs
to be reconciled.
8. Section 301 CrPC reads as follows:-
" Appearance by Public Prosecutors.-( I) Tiie Public
Prosecutor or Assistant Public Prosecutor in charge of a
case may appear and plead without any written authority
before any couii 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 Cou'rt, the Public Prosecutor
2 (2001) 3 sec 462
' (2014) 16 sec 623
' ( 1999) 1sec467
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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 Prosec.utor 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 pe11inent for the present case
reads as follows:-
"Permission to conduct prosecution-( I )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
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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
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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
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officer below the rank oflnspector. Such person need not
necessarily be a Public Prosecutor.
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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
DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI &
217
ORS. [DIPAK MISRA, J.]
is granted the person concerned can appoint any counsel to
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conduct the prosecution on his behalf in the Magistrate's
Court.
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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).
12. In the backdrop of the above provisions we have to
understand the purport of Section 30 I of the Code. Unlike
its succeeding provision in the Code, the application of which
is confined to magistrate courts, th is particular section is
applicable to all the comts of criminal jurisdiction. This
distinction can be discerned from employment of the words
any court in Section 30 I. In view of the provision made in
the succeeding section as for magistrate courts the
insistence contained in Section 30 I (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
co mt 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 ofCrPC, 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
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true facts Involved in the case.
13. In J.K. International (supra), a three-Judge Bench was
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
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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 ifthe court thinks that the
cause of justice would be served better by granting such permission the
C . 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
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subject to the control of the public prosecutor.
I 4. 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 Sltiv Kumar (supra), the
Court was dealing with the ambit and sweep of Section 301 CrPC and in
that co_ntext 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 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
DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI &
ORS. [DIPAK MISRA, J.]
that was posed before another three-Judge Bench was
whether an aggrieved has a right to engage its own counsel
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 0f 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 crossexamination of the witness which was allowed by the trial
court but was reversed in revision by the High Court, and
the High Court permitted ooly the submission of written
argument after the closure of evidence. Upholding the view
· of the High Court, th is 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 impermissible 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 Kum"r (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 Magistrat~'s Couti.
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. Tutsi,
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
30 I 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 engaged by him is required to act under the directions of public
prosecutor. As far as Section 302 CrPC is concerned, power is conferred
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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. Tutsi 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. I11tematio11al (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 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.
Devika Gujral
Appeal disposed of.