AMIR HAMZA SHAIKH & ORS. versus STATE OF MAHARASHTRA & ANR.

Citation: [2019] 11 S.C.R. 597 · Decided: 07-08-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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AMIR HAMZA SHAIKH & ORS.
v.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No. 1217 of 2019)
AUGUST 07, 2019
[L. NAGESHWARA RAO AND HEMANT GUPTA, JJ.]
Code of Criminal Procedure, 1973 – ss.301, 302 – Permission
to conduct prosecution – Respondent sought permission to prosecute
in terms of s.302 Cr.P.C. for offences punishable u/ss. 498A, 406
r/w. 34 of IPC – Trial court declined the permission – However, the
High Court granted permission to conduct prosecution – On appeal,
held: 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 – High Court granted permission to the complainant to
prosecute the trial without examining the said parameters –
Therefore, order passed by the High Court and that of Magistrate
set aside – The matter is remitted to the Magistrate to consider as to
whether the complainant should be granted permission to prosecute
the offences u/ss.498-A, 406 r/w. s.34 IPC.
Allowing the appeal, the Court
HELD: 1. In J.K. International v. State (Govt. of NCT of
Delhi) & Ors., it has been held that if the cause of justice would
be better served by granting such permission, the Magistrate’s
court would generally grant such permission. An aggrieved
private person is not altogether eclipsed from the scenario when
the criminal court take cognizance of the offences based on the
report submitted by the police. [Para 13][607-E]
   [2019] 11 S.C.R. 11
   [2019] 11 S.C.R. 597
597
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SUPREME COURT REPORTS
[2019] 11 S.C.R.
2. Mallikarjun Kodagali (Dead) represented through LRs v.
State of Karnataka & Ors., this Court approved the Justice
Malimath Committee, wherein the victim’s right to participate in
the criminal proceedings which includes right to be impleaded,
right to know, right to be heard and right to assist the court in
the pursuit of truth had been recognised. [Para 14][607-F]
3. In view of such principles laid down, this Court finds that
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. [Para 15][607-G-H; 608-A]
4. The High Court has granted permission to the
complainant to prosecute the trial without examining the
parameters laid down hereinabove. Therefore, the order passed
by the High Court and that of the Magistrate is set aside. 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.
[Para 16][608-B]
Shiv Kumar v. Hukam Chand & Anr. (1999) 7 SCC
467 : [1999] 2 Suppl. SCR 81; J.K. International v.
State (Govt. of NCT of Delhi) & Ors.  (2001) 3 SCC
462 : [2001] 2 SCR  90; Dhariwal Industries Limited v.
Kishore Wadhwani & Ors. (2016) 10 SCC 378 : [2016]
5  SCR 212; Mallikarjun Kodagali (Dead) represented
through LRs v. State of Karnataka & Ors.  (2019) 2
SCC 752 – relied on.
Babu v. State of Kerala 1984 CriLJ 499 – referred to.
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Case Law Reference
[1999] 2  Suppl.  SCR  81
relied on
Para 8
[2001] 2  SCR  90
relied on
Para 9
[2016] 5  SCR 212
relied on
Para 10
(2019) 2 SCC 752
relied on
Para 11
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1217 of 2019
From the Judgment and Order dated 27.11.2018 of the High Court
of  Judicature at Bombay in Criminal Writ Petition No. 4939 of  2018
Ashok Arora, Surjeet Singh, Vishwa Pal Singh,  Advs. for the
Appellants.
Nishant Ramakantrao Katneshwarkar, Anoop Kandari,
Karamsingh Rajput, Abdulrahiman Tambdi, S. Gowthaman, Advs. for
the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. Leave granted.
2. The challenge in the pr
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