IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 Crl.MC.No. 3631 of 2008() ------------------------- CRMP.8483/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... PETITIONER(S): --------------- SELEENA, W/O PAUL, KALAPPURACKAL VEEDU, KUTTICHIRA VILLAGE, MARAMCODE DESOM, BY ADV. SRI.P.M.HABEEB RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY STATION HOUSE OFFICER, VELLIKULANGARA POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R2. ANTO, S/O.ANTONY, AGED 47 YEARS, KARIPPAYI VEEDU, MURAMKODE DESOM KUTTICHIRA VILLAGE VELLIKULANGARA POLICE STATION TRICHUR DISTRICT. [ADDL.R2 IS IMPLEADED AS PER ORDER DT.20/10/2008 IN CRL.M.A.NO.5405/08] PUBLIC PROSECUTOR SRI.P.A.SALIM SRI.SHEEJO CHACKO FOR R2 SRI.M.N.MANOJ FOR R2 SRIA.G.UNNIKRISHNAN FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.3631 of 2008 ---------------------------------------- Dated this the 13th day of January 2009 O R D E R The petitioner is the de facto complainant in a prosecution for offences punishable under Sections 354 and 506(ii) I.P.C. The crux of the allegations is that the de facto complainant was assaulted and intimidated on account of prior animosity. Cognizance has been taken on the basis of a final report submitted by the police. Trial is in progress. The petitioner came to this court earlier with a prayer that she may be permitted to engage a counsel to conduct the prosecution under Section 302 I.P.C. That petition was dismissed as per Annexure I order with the observation that the petitioner can move the learned Magistrate for the requisite permission under Section 302 Cr.P.C. 2. Thereafter, the petitioner filed Annexure II application before the learned Magistrate. The learned Magistrate on such application, proceeded to pass Annexure III order turning down the request of the petitioner to get the prosecution conducted by a counsel of her choice under Section 302 Cr.P.C. Thereupon the petitioner was examined. It is at this juncture, the petitioner has come to this court. Crl.M.C.No.3631/08 2 3. Arguments have been advanced before me of the principles and circumstances under which permission under Section 302 or 301(2)Cr.P.C can be granted. I have been taken through the precedents which throw light on the distinction between the nature of permission under Section 302 Cr.P.C viz a viz under Section 301(2) Cr.P.C. I must, in particular, state that the decisions in J.K.International v. State Governemnt of N.C.T.Delhi [2001(1)KLT 870(SC)], Babu v. State of Kerala [1984 KLT 164], Subash Chandran v. State of Kerala [1981 KLT SN 69 Case No.125], Chandradas v. State of Kerala [2005(2) KLT SN 23 case No.28] and Shiv Kumar v. Hukam Chand and Another [(1999)7 Supreme Court Cases 467] have all been cited before me. It is unnecessary to advert to principles in any greater detail. When permission is granted under Section 302 Cr.P.C the private counsel engaged takes over the role of the Prosecutor whereas when permission is granted under Section 301(2) Cr.P.C, the Public Prosecutor proceeds to conduct the prosecution and the pleader instructed by the complainant acts under the directions of the Public Prosecutor. When permission is granted under Section 301(2) Cr.P.C, the Public Prosecutor continues to be in the driver's seat whereas Crl.M.C.No.3631/08 3 when permission is granted under Section 302 Cr.P.C that se t is occupied by the private counsel. The precedents referre above clearly show that in the interests of a fair trial not a private party but a disinterested prosecutor is ideally suited to conduct a prosecution. Of course, in an appropriate case where the court is satisfied by exceptional reasons that justice may not be rendered in a criminal trial by the Prosecutor and there is need to appoint a private counsel to conduct the prosecution, such permission can be granted under Section 302 Cr.P.C. That can only be in an exceptional case where the Public Prosecutor appointed by the State can thus be excluded from the conduct of the prosecution. 4. The learned Magistrate felt and the said contention is reiterated before me by the learned counsel for the accused that in Annexure A2 application filed by the petitioner, there is no sufficient ground revealed at all, which can persuade the court to grant the requisite permission under Section 302 Cr.P.C. I find merit in that contention. There is no allegation that the Public Prosecutor is interested in the accused or interested against the petitioner. There is no specific contention of any act of omission, commission or inadequacy on the part of the Public Prosecutor Crl.M.C.No.3631/08 4 which could operate as an exceptional reason justifying the replacement of the Public Prosecutor by the private counsel. On a total consideration of the averments in Annexure A2, I am not persuaded to agree that extraordinary inherent jurisdiction under Section 482 Cr.P.C can, need or ought to be invoked to interfere with the discretion exercised by the learned Magistrate in the impugned order. The learned Magistrate has adverted to all the relevant aspects and appears to have sailed to the correct conclusion that there are no exceptional reasons justifying grant of permission under Section 302 Cr.P.C for the learned counsel for the petitioner to conduct the prosecution. 5. The learned counsel for the petitioner submits that if the averments in the petition be insufficient, what transpired after the impugned order, must persuade this court to accord the requisite sanction. According to him, the learned Public Prosecutor had not discharged his duties sufficiently when PW1 was in the box facing the cross-examination. I have been taken through the cross-examination. Certain suggestions have been thrown at the petitioner. In those suggestions it has been very specifically suggested that the petitioner along with another was conducting a brothel in the locality and the local persons had Crl.M.C.No.3631/08 5 raised objections against such activity. The suggestion may be true or false; but I am unable to agree that in this prosecution under Section 354 I.P.C, the conduct of the Prosecutor not objecting to this suggestion would in any way reveal bias or absence of efficient performance on the part of the Prosecutor. 6. I am, in these circumstances, satisfied that the impugned order does not warrant interference. I must however hasten to observe that the learned counsel for the petitioner must be permitted to act under Section 301(2) Cr.P.C and such a direction, I am satisfied, shall serve the interests of justice eminently. 7. In the result, a) This Crl.M.C is dismissed. b) But with the specific observation that the learned counsel for the petitioner shall be permitted to act strictly within the four walls of Section 301 Cr.P.C in this prosecution. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.3631/08 6 Crl.M.C.No.3631/08 7 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008