Hemant Gupta JUDGMENT
Hemant Gupta, J.
1. Leave granted.
2. The challenge in the present appeal is to an order passed by the High Court of judicature at Bombay on November 27, 2018 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, 18601, was allowed.
3. The Respondent No. 2 had sought permission to conduct prosecution in terms of Section 302 of the Code of Criminal Procedure, 19732 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.
4. Learned Counsel for the Appellants argued that the High Court is not required to give permission to prosecute mechanically only for the reason that such permission is sought by an aggrieved party It is contended that the prosecution is to be conducted by a Public Prosecutor who is an officer of the Court and required to assist the Court to do justice rather than to be vindictive and take side with any of the parties. If the party is allowed to proceed to take over the investigation, the avowed object of fairness in the criminal justice dispensation system shall be shaken.
5. The present Section 302 of the Code is similar to Section 495 of the Code of Criminal Procedure, 1898. Section 302 of the Code reads as under:
Permission to conduct prosecution.-(1) 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 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.
6. It m........