* 1 * W.P. 1743.2010 9.2.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1743 of 2010 Mr. Hiren Devendra Shah & Anr. .. Petitioners. V/S. Mr. Suresh Shivram Dave & Anr. ... Respondents. * * * * * * Mr. A.M. Saraogi, Advocate for the Petitioners. Mr.Satyajeet Mirajkar, Advocate for Respondent no.1. Mr. D.R. More, APP for State­Respondent no.2. Coram : Smt. R.P. SondurBaldota, J. 9 February, 2011. P.C. : 1. This petition challenges the order dated 2nd December, 2009 passed by the Judicial Magistrate First Class, Panvel allowing application filed by respondent no.1 herein who is the original complainant to appoint private advocate to conduct the prosecution. * 2 * W.P. 1743.2010 9.2.2011 The application was filed on the ground that the public prosecutor remains busy in several cases and that it may not be possible for him to look into the voluminous records and business transactions that are involved in the proceedings. The application was opposed by the accused­the petitioner herein on the ground that there is no provision in the Criminal Procedure Code to permit the complainant to engage a private advocate to conduct the prosecution. Paragraph­6 of the order shows that both the sides had referred to number of citations. The learned Sessions Judge says in the order that he had gone through the same but the order does not even make a mention of the authorities cited. 2. Respondent no.1 had filed private complaint against the petitioners for the offences punishable under Sections 420, 415, 403, 405, 424 read with Section 506(II) Indian Penal Code in connection with the agreements for the distribution of two films. The complaint alleges that the petitioners had persuaded respondent no.1 to invest into the films by promising 24% share in the profits. The promise was not kept, resulting into loss of respondent no.1 to the extent of Rs.15,50,000/­. On this complaint directions for investigation under Section 156(3) Criminal Procedure Code had been given. Accordingly, the police * 3 * W.P. 1743.2010 9.2.2011 registered the FIR, completed the investigation and filed chargesheet. With filing of the chargesheet, the complaint filed by respondent no.1 ceased to be a private complaint and became a State Case. Consequently, it would be conducted by the Public Prosecutor. 3. Mr. Saraogi, the learned counsel for the petitioners relies upon the decision of Single Judge of this Court in the case of Anthony D’Souza V/s. Radhabai Brij Ratan Mohatta reported in 1984­BCR­1­157 and submits that the general provisions as to enquiries and trials are contained in Chapter XXIV Criminal Procedure Code. Section 301 and Section 302 thereof provide for the appearance of the public prosecutors. He submits that sub­section 2 of Section 301 permits a private person to instruct a pleader to prosecute any person in the court, but the role of pleader so instructed is limited to assisting the Public Prosecutor or Assistant Public Prosecutor who is in charge of the case. The control of the Public Prosecutor or the Assistant Public Prosecutor for prosecution of the complaint is never allowed to be shifted to a private lawyer engaged by the complainant. The decision cited extensively considers the very arguments as advanced by the respondent herein and it has been held that the advocate cannot be allowed to interfere or participate in the trial, except, under the directions of the Public Prosecutor. * 4 * W.P. 1743.2010 9.2.2011 4. The learned counsel for the respondent, on the other hand places specific reliance on sub­section 2 of Section 302 Criminal Procedure Code which reads as follows : “S.302. 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 a police officer below the rank of Inspector; but no person, other than the Advocate­General 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.” . This provision cannot be read independent of sub­section 1. Sub­ section 1 provides that Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person, other than a police officer below the rank of Inspector; but no person, other than the Advocate­General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission. It is only when the permission as under Section 302 is granted in exceptional circumstances that such person permitted may conduct either personally or by pleader. * 5 * W.P. 1743.2010 9.2.2011 5. Mr. Mirajkar, the learned counsel for respondent no.1, relies upon the decision of Full Bench of the Apex Court in the case of M/s. J.K. International V/s. State Govt. of NCT of Delhi and Others reported in AIR 2001 Supreme Court page 1142 to submit that the Apex Court has accepted that a complainant can engage a lawyer to ventilate his grievances before the Court. The facts of the proceedings in which the decision cited was given, was entirely different. There was an application filed by the accused for quashing of the complaint. In those proceedings, the original complainant desired to have a hearing. He had not been made a party to the proceeding and therefore the petition was filed in the High Court for impleading him as a party. It was held by the Apex Court that it may not be necessary for the complainant to be made a party but the right of the complainant to be heard does not cease once cognizance is taken and he can thereafter continue to participate in the proceedings as if he is an aggrieved party. When the complainant wishes to be heard when the criminal proceedings initiated at his behest are sought to be quashed, it would be a negation of justice to him if he is foreclosed from being heard even after he makes a request to the Court in that behalf. It has nowhere been held by the Apex court that a lawyer engaged by the original complainant which has * 6 * W.P. 1743.2010 9.2.2011 subsequently turned into a State case, can replace the public prosecutor or the Assistant Public Prosecutor. Hence, the decision cited is not applicable to the facts of the present case. In view of the position of law as noted earlier, the impugned order cannot be sustained as it is. It is required to be modified to the extent that any advocate engaged by respondent no.1 will only play the role of a person assisting the Public Prosecutor. Hence, the petition is partly allowed. Respondent no.1 may engage an advocate of his choice which advocate will assist the Public Prosecutor as provided under Section 301(2) Criminal Procedure Code. [Smt. R.P. SondurBaldota, J] ******* * 7 * W.P. 1743.2010 9.2.2011 6. [Smt. R.P. SondurBaldota, J]