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In a judgment passed on Wednesday, the Supreme Court made note of the principles to be borne in mind while granting permission to the victim/aggrieved person to conduct the prosecution in a criminal case under Section 302 of the Code of Criminal Procedure (CrPC).
Generally, crimes are prosecuted by counsel representing the State i.e. the Advocate-General, Government Advocate, Public Prosecutor, Assistant Public Prosecutor. However, Section 302, CrPC vests with the Magistrate Court the discretion to allow the victim of a crime or a pleader instructed by him to prosecute criminal cases instead of the State counsel.
The judgment passed yesterday by the Bench of Justices L Nageswara Rao and Hemant Gupta, however, highlights that such permission cannot be granted mechanically. It was observed,
“… though the Magistrate is not bound to grant permission at the mere asking but the victim has a right to assist the Court in a trial before the Magistrate. The Magistrate may consider as to whether the victim is in a position to assist the Court and as to whether the trial does not involve such complexities which cannot be handled by the victim. On satisfaction of such facts, the Magistrate would be within its jurisdiction to grant of permission to the victim to take over the inquiry of the pendency before the Magistrate.”
In the case before the Court, the Magistrate had declined to give the victim permission to conduct the prosecution in a case involving a charge under Section 498A of the Indian Penal Code (dealing with cruelty by husband or his family, including dowry harassment). The Bombay High Court, however, considered the judgments on the subject and granted permission to conduct prosecution only for the reason that the application was made by an aggrieved party.
In the appeal filed against the Bombay High Court’s order, the State of Maharashtra contended that the Bombay High Court ought not to have granted such permission mechanically. It was further argued that if the aggrieved party was allowed to take over the case in this manner, the object of fairness in criminal justice administration would be affected.
The Supreme Court, however, pointed out that there are several precedents to show that the victim of a crime has a right to assist the Court in a criminal trial. However, as noted above, the Bench also cautioned that the permission to render such assistance should not be given with taking into consideration relevant factors, including whether the victim is capable of assisting the Court or not.
In the case at hand, however, the Bench found that these factors were not taken into consideration by the High Court. Therefore, the Bench sent the matter back to the Magistrate Court, while observing,
“We find that the High Court has granted permission to the complainant to prosecute the trial without examining the parameters laid down hereinabove. Therefore, we set aside the order passed by the High Court and that of the Magistrate. The matter is remitted to the Magistrate to consider as to whether the complainant should be granted permission to prosecute the offences under Sections 498-A, 406 read with Section 34 IPC. The appeal is allowed.”