Supreme Court

Amir Hamza Shaikh and Ors. Vs. State of Maharashtra and Ors.

MANU/SC/1056/2019

07.08.2019

Criminal

Magistrate is within its jurisdiction to grant permission to victim to prosecute accused only on satisfaction of relevant facts

The challenge in the present appeal is to an order passed by the High Court whereby an order passed by the Magistrate declining permission to Respondent No. 2 to prosecute the Appellants-Accused for the offences punishable under Sections 498A, 406 read with Section 34 of Indian Penal Code, 1860, was allowed.

The Respondent No. 2 had sought permission to conduct prosecution in terms of Section 302 of the Code of Criminal Procedure, 1973 (CrPC) for the aforesaid offences. The learned Magistrate declined permission without giving any reason but the High Court considered the judgments on the subject and granted permission to conduct prosecution only for the reason that, the application has been made by an aggrieved party.

It may be noticed that, under Section 301 of the CrPC, the Public Prosecutor may appear and plead without any authority before any Court in which that case is under inquiry, trial or appeal and any person may instruct a pleader who shall act under the directions of the Public Prosecutor and may with the permission of the Court submit written submissions.

In J.K. International v. State, Govt of NCT of Delhi and 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.

In view of principles laid down, 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.

The High Court has granted permission to the complainant to prosecute the trial without examining the parameters laid down. 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 498A, 406 read with Section 34 of IPC. The appeal is allowed.

Relevant

M/s. J.K. International v. State, Govt of NCT of Delhi and Ors. MANU/SC/0126/2001

Tags : Permission Grant Legality

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