IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 Crl.MC.No. 4128 of 2009() ------------------------- AGAINST THE ORDER DATED 16/11/2009 IN CMP.5912/2009 IN CC.260/2006 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... (CRIME NO.139/2006 OF FEROKE POLICE STATION) PETITIONER(S): INJURED, DEFACTO COMPLAINANT: ------------------------------------------------------------------------------ 1. SUNIL KUMAR, S/O.CHANDRAN, AGED 32 YEARS, CHAKKUTHODIKA VEEDU, PALLIKKAL BAZAR POST, MALAPPURAM DISTRICT. 2. SURESH KUMAR, S/O.CHANDRAN, AGED 28 YEARS, DO. DO. 3. CHEENIKANARI UNNI, S/O.GOPALAN, OLARIPARAMBU HOUSE, PERUMUGAM P.O., FEROKE. BY ADV. MR.K.P.SUDHEER RESPONDENT(S): STATE & ACCUSED: ---------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING SUB INSPECTOR OF POLICE, FEROKE POLICE STATION. 2. BAVEESH.K, S/O.BHARATHAN, KILIYANKANDY VEEDU, WEST NELLOOR P.O., FEROKE. 3. HAMSAKOYA, S/O.MOHAMMED, CHERIYAKUNDETHADAM HOUSE, FEROKE P.O., NALLOOR, FEROKE. 4. VALAKKADA RAJAN, S/O.GOPALAN, VALASSERY PARAMBA, PUTTEKKAD, NALLOOR, FEROKE. R1 BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.4128 OF 2009 ------------------------------------------ Dated 5th January 2010 O R D E R Petitioners are the injured and the de facto complainant in C.C.260/2006 on the file of Judicial First Class Magistrate-V, Kozhikode. When, on an application filed by Assistant Public Prosecutor learned Magistrate permitted the prosecution to be withdrawn, petitioners challenged the order before this court in Crl.R.P.3724/2008. By Annexure-A2, the order was quashed finding that even though case as against the accused in C.C.260/2006 was withdrawn, case against petitioners in respect of the same incident was not withdrawn and Assistant Public Prosecutor has not applied his mind while filing the application for Crmc 4128/09 2 withdrawal. Hence the order granting permission to withdraw the prosecution was set aside. Petitioners then filed C.M.P.5912/2009 under Section 302 of Code of Criminal Procedure for permission to engage a counsel to prosecute the case, contending that Assistant Public Prosecutor has obeyed the orders of the State due to political consideration and in such circumstances, if the case is to be prosecuted properly, it is to be done, not by the Assistant Public Prosecutor, but by a private counsel. Accused filed Annexure-A4 objection stating that if the objection is against the Assistant Public Prosecutor, who had filed the application for withdrawal of the prosecution, case could be conducted by another Assistant Public Prosecutor and private counsel may not be appointed. By Annexure-A5 order learned Magistrate dismissed the Crmc 4128/09 3 petition. It is challenged in this petition filed under Section 482 of Code of Criminal Procedure contending that learned Magistrate should have permitted the petitioners to appoint a private counsel. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Sub Section 1 of Section 302 of Code of Criminal Procedure provides that any Magistrate 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. This court in Chandradas v. State of Kerala (2005 (2) KLT Short Note, Case No.28) Crmc 4128/09 4 considered the ambitant and scope of Sections 301(2) and 302 of Code of Criminal Procedure. It was found that power provided under Section 302 is wider than the power provided under Section 301(2) of the Code and it is open to the Magistrate to consider the request of a de facto complainant for permission under Section 302, but permission can be granted only after exercising the discretion judicially. It was also cautioned that the Magistrate shall bear in mind that prosecutor is expected to be scrupulously fair not only to the court and the investigating agency but also even to the accused and unless this can be assured, there cannot be a fair trial and therefore, permission cannot be granted. 4. There is no case for the petitioners that Assistant Public Prosecutor who is now conducting the case is not fair or competent or Crmc 4128/09 5 biased. Order of learned Magistrate itself shows that the original Assistant Public Prosecutor who filed the petition for permission to withdraw the prosecution is not now prosecuting the case and instead another Assistant Public Prosecutor is prosecuting. In such circumstances, when there is no allegation as against that Assistant Public Prosecutor, I do not find it necessary to grant permission to the petitioners to engage a counsel of their own, to prosecute the case. Still petitioners are permitted to engage a counsel only to assist the Assistant Public Prosecutor. But prosecution can only be conducted by the Assistant Public Prosecutor. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.