LexDHARIWAL INDUSTRIES LTD. versus KISHORE WADHWANI & ORS.
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A B c D E F G H [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 charge- sheet 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. B c D E F G H 214 A B c D E F G SUPREME COURT REPORTS [2016] 5 S.C.R. 5. Being dissatisfied with the aforesaid order, the accused- respondents 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
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