DHARIWAL INDUSTRIES LTD. versus KISHORE WADHWANI & ORS.
[2016] 5 S.C.R. 212, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Ratio
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[2016] 5 S.C.R. 2 _12 
DHARIWAL INDUSTRIES LTD. 
v. 
KISHORE WADHWANI & ORS. 
(Criminal Appeal No. 859of2016) 
SEPTEMBER 06, 2016 
[DIPAK MISRA AND ADARSH KUMAR GOEL, JJ.] 
Code of Criminal Procedure, 1973: ss. 301, 302 - Permission 
to conduct prosecution - Role of complainant - Held: Role of 
informant or the party is limited during the prosecution of a case in 
a Court of Session - Counsel engaged by him is required to act 
under the directions of public prosecutor - As far as s.302 is 
concerned, power is conferred on the Magistrate to grant permission 
to the complainant to conduct the prosecution independently -
However, for availing benefit of s.302, he has to file a written 
application making out a case so that magistrate can exercise the 
;urisdiction as vested in him and form theJequisite opinion - s.302 
applies to every stage including the stage of framing charge 
inasmuch as the complainant is permitted by the Magistrate to 
conduct the prosecution. 
J.K. International v. State (Govt. of NCT of Delhi) and 
Ors. (2001) 3 SCC 462 : 2001(2) SCR 90; Sundeep 
Kumar Bafna v. State of Maharashtra and Anr. (2014) 
16 SCC 623 : 2014 (4) SCR 486; Shiv Kumar v. Hukam 
Chand and Am: (1999) 7 SCC 467 : 1999 (2) Suppl. 
SCR 81 - relied on. 
Case Law Reference 
2001(2) SCR 90 
2014 (4) SCR 486 
1999 (2) Suppl. SCR 81 
. relied on 
relied on 
relied on 
Para6 
Para6 
Para6 
CRIMINALA.PPELLATE JURISDICTION: Criminal Appeal No. 
859 of2016. 
From the
Judgment and Order dated 13.02.2012 of the High Court 
of Bombay in CRWPNo. 3438 of2010. 
212
DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI & 
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ORS. 
K. T. S. Tulsi, P.H. Parekh, Sr. Advs., Lal it Chauhan, Raj Kamal, 
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Vishal Prasad, Ms. Ritika Sethi, K. Raj , Abhishek Vinod Deshmukh 
(for Mis Parekh & Co.), Advs. for the Appellant. 
Dr. A. M. Singhvi, Vikas Singh, Sr. Advs., Priya Puri, Amit 
Bhandari, Anil Naidu, Ms. Churchi M., Advs. for the Respondents. 
The Judgment of the Cou11 was delivered by 
DIPAK MISRA, J. I. Leave granted. 
2. The present appeal, by special leave, assails the order dated 
J3 1h February, 2012 passed by the High Court of Judicature at Bombay 
in Criminal Writ Petition No. 3438 of20 l 0 whereby the learned Single 
Judge has modified the order dated 30'h August, 20 I 0 whereunder the 
Additional Chief Metropolitan Magistrate, 81h Court, Esplanade, Mumbai 
in C.C.No.927/PW/2007 had pennitted the appellant to be heard atthe 
stage of framing of charge under Section 239 of the Code of Criminal 
Procedure (for short, "CrPC"), by expressing the view that the role of 
the complainant is limited under Section 301 CrPC and he cannot be 
allowed to take over the control of prosecution by directly addressing 
the Court, but has to act under the directions of Assistant Public Prosecutor 
in charge of the case. 
3. The facts which are requisite to be stated for the purpose of 
adjudication of the present appeal are that the appellant filed a complaint 
under Section 200 CrPC for the offences punishable under Sections 
I 09, 193, 196, 200, 465, 467
and 471 read with Section 120-B oflndian 
Penal Code (!PC). The learned Magistrate exercising the power under 
Section 156(3) CrPC, directed the police to investigate into the allegations. 
The investigating agency registered an FIR and eventually laid the charge-
sheet before the Court and thereafter the case was registered as C.C. 
No. 927/PW/2007. 
4. After the charge-sheet was filed, the accused persons filed an 
application under Section 239 CrPC seeking discharge. At that juncture, 
the appellant made an oral prayer before the learned Magistrate seeking 
permission to be heard along with the Assistant Public Prosecutor. The 
learned Magistrate after hearing the learned counsel for the parties 
observed that the original complainant is not alien to the proceeding and, 
therefore, he has a right to be heard even at the stage of framing of 
charge and, accordingly, granted the permission. 
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5. Being dissatisfied with the aforesaid order, the accused-
respondents preferred the criminal writ petition before the High Court. 
The High Court referred to Section 301 CrPC and certain authorities of 
this Court and came to hold thus:-
"Undoubtedly the first informant now enjoys a role higher 
than earlier as already seen in the preceding paragraphs. 
In fact perusal of the petition shows that the petitioners 
also not wish to deny participation of the first informant 
altogether. They only want his role to be limited as under 
Section 30 I Cr.P.C. An application for discharge can result 
into putting an end to the prosecution either partly or fully. 
This stage is in that respect similar to the stage of 
consideration of the police report by the Magistrate under 
Section 173(2) Cr.P.C and the proceedings for quashing of 
the complaint filed by the accused person. The first 
informant, therefore, is likely to be interested in seeing that 
the matter reaches the stage of trial and is disposed off 
after recording of evidence. lfby judicial pronouncements, 
he is now granted hearing at the earlier two stages, he can 
be granted hearing at the stage of discharge also, though 
the Criminal Procedure Code does not make provision for 
hearing to him at that stage. If the first informant appears 
before the Court and desires to participate in the application, 
opportunity cannot be refused to him. Now the next
question 
would be about the nature of the hearing to be given to the 
first informant. Should the hearing be independent to the 
hearing to the Public Prosecutor or it be through the Public 
Prosecutor. In my opinion, his role will have to be limited 
as under Section 30 I Cr.P.C. for the same reasons, as given 
in Anthony D'Souza's 1 case and keeping in focus the role 
of the Public Prosecutor. He cannot be allowed to take 
over the control of prosecution by allo._wing to address the 
court directly. Therefore, the petition is partly allowed. The 
impugned order is modified to the extent that the Counsel 
engaged by respondent no. 2 shall act under the directions 
of the Assistant Public Prosecutor in-charge of the case." 
6. Questioning the legal propriety and the approach of the High 
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1 Anthony D'Souza v. Mrs. Radhabai Brij Ratan Mahal/a. 1984 (I) BC.R. 157
DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI & 
ORS. [DIPAK MISRA, J.] 
Court, it is submitted by Mr. K.T.S. Tulsi, learned senior counsel appearing 
for the appellant that the High c:;ourt has gravely erred by placing reliance 
on Section 30 I CrPC and completely ignoring the stipulations inherent in 
Section 302 Cr PC. According to Mr. Tulsi, there is a distinction between 
a trial before a Magistrate and a sessions trial and Section 302 CrPC 
has exclusive application to a magisterial trial and hence, the complainant 
can address the Court directly, if permitted by the Court. To strengthen 
the said submission, he has commended us to the authorities in J.K, 
International v. State (Govt. of NCT of Delhi) and otl1ers1 and 
Sundeep Kumar B<ifna v, State of Malum1shtra and anotlter3. 
7. Mr. Vikas Singh, learned senior counsel, in his turn, contends 
that Section 30 I Cr PC is applicable to all categories of cases and 
therefore a complainant is entitled to assist the Court under the directions 
of the public prosecutor. That apart, submits Mr. Singh, he has the only 
other liberty to file the written arguments with the permission of the 
court. Mr. Singh would vehemently urge that the appellant had never 
sought to conduct the case under Section 302 CrPC and as envisaged, 
no application in that regard was filed and, therefore, no fault can be 
filed with the order of the High Court. It is further submission that as the 
factual matrix would exposit, the learned Magistrate
allowed the prayer 
on the basis of an oral submission which is one under Section 301 CrPC 
and, in such a situation, no laxity should be given to him to take the 
benefit of Section 302 CrPC. Additionally, propones Mr. Singh, that 
there is slight disharmony in the pronouncement in J.K. International 
(supra) and Shiv Kumar v. Hukam Chand and another' which needs 
to be reconciled. 
8. Section 301 CrPC reads as follows:-
" Appearance by Public Prosecutors.-( I) Tiie Public 
Prosecutor or Assistant Public Prosecutor in charge of a 
case may appear and plead without any written authority 
before any couii in which that case is under inquiry, trial or 
appeal. 
(2) If in any such case any private person instructs a pleader 
to prosecute any person in any Cou'rt, the Public Prosecutor 
2 (2001) 3 sec 462 
' (2014) 16 sec 623 
' ( 1999) 1sec467 
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or Assistant Public Prosecutor in charge of the case shall 
conduct the prosecution, and the pleader so instructed shall 
act therein under the directions of the Public Prosec.utor or 
Assistant Public Prosecutor, and may, with the permission 
of the Court, submit written arguments after the evidence 
is closed in the case." 
9. In Shiv Kumar (supra), the Court has clearly held that the said 
provision applies to the trials before the Magistrate as well as Court of 
Session. 
10. Section 302 CrPC which is pe11inent for the present case 
reads as follows:-
"Permission to conduct prosecution-( I )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 
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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." 
11. In Shiv Kumar (supra) interpreting the said provision, the 
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Court has ruled:-
"8. It must be noted that the latter provision is intended only 
for magistrate courts. It enables the magistrate to permit
any person to conduct the prosecution. The only rider is 
that magistrate cannot give such permission to a police 
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officer below the rank oflnspector. Such person need not 
necessarily be a Public Prosecutor. 
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9. In the Magistrate's Court anybody (except a police officer 
below the rank of Inspector) can conduct prosecution, if 
the Magistrate permits him to do so. Once the permission
DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI & 
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ORS. [DIPAK MISRA, J.] 
is granted the person concerned can appoint any counsel to 
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conduct the prosecution on his behalf in the Magistrate's 
Court. 
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11. The old Criminal Procedure Code (1898) contained an 
identical provision in Section 270 thereof. A Public 
Prosecutor means any person appointed under Section 24 
and includes any person acting under the directions of the 
Public Prosecutor,(vide Section 2(u) of the Code). 
12. In the backdrop of the above provisions we have to 
understand the purport of Section 30 I of the Code. Unlike 
its succeeding provision in the Code, the application of which 
is confined to magistrate courts, th is particular section is 
applicable to all the comts of criminal jurisdiction. This 
distinction can be discerned from employment of the words 
any court in Section 30 I. In view of the provision made in 
the succeeding section as for magistrate courts the 
insistence contained in Section 30 I (2) must be understood 
as applicable to all other courts without any exception. The 
first sub-section empowers the Public Prosecutor to plead 
in the court without any written authority, provided he is in 
charge of the case. The second sub-section, which is sought 
to be invoked by the appellant, imposes the curb on a counsel 
engaged by any private party. It limits his role to act in the 
co mt during such prosecution under the directions of the 
Public Prosecutor. The only
other liberty which he can 
possibly exercise is to submit written arguments after the 
closure of evidence in the trial, but that too can be done 
only if the court permits him to do so." 
12. It is apt to note here that in the said decision it has also been 
held that from the scheme ofCrPC, the legislative intention is manifestly 
clear that prosecution in a Sessions Court cannot be conducted by anyone 
other than the public prosecutor. It is because the legislature reminds the 
State that the policy must strictly conform to fairness in the trial of an 
accused in a Sessions Court. The Court has further observed that a 
public prosecutor is not expected to show the thirst to reach the case in 
the conviction of the accused somehow or the other irrespective of the 
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true facts Involved in the case. 
13. In J.K. International (supra), a three-Judge Bench was 
adverting in detail to Section 302 CrPC. In that context, it has been 
opined that the private person who is permitted to conduct prosecution 
in the Magistrate's Court can engage a counsel to do the needful in the 
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court in his behalf. If a private person is aggrieved by the offence 
committed against him or against any one in whom he is interested he 
can approach the Magistrate and seek permission to conduct the 
prosecution by himself. This Court further proceeded to state that it is 
open to the court to consider his request and ifthe court thinks that the 
cause of justice would be served better by granting such permission the 
C . court would generally grant such permission. Clarifying further, it has 
been held that the said wider amplitude is limited to Magistrate's Court, 
as the right of such private individual to participate in the conduct of 
prosecution in the sessions court is very much restricted and is made 
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subject to the control of the public prosecutor. 
I 4. Having carefully perused both the decisions, we do not perceive 
any kind of anomaly either in the analysis or ultimate conclusion arrived 
by the Court. We may note with profit that in Sltiv Kumar (supra), the 
Court was dealing with the ambit and sweep of Section 301 CrPC and in 
that co_ntext observed that Section 302 CrPC is intended only
for the 
Magistrate's Court. In J.K. International (supra) from the passage we 
have quoted hereinbefore it is evident that the Court has expressed the 
view that a private person can be permitted to conduct the prosecution 
in the Magistrate's Court and can engage a counsel to do the needful on 
his behalf. The further observation therein is that when permission -is 
sought to conduct the prosecution by a private person, it is open to the 
court to consider his request. The Court has proceeded to state that the 
Court has to form an opinion that cause of justice would be best subserved 
and it is better to grant such permission. And, it would generally grant 
such permission. Thus, there is no cleavage of opinion. 
15. In Sundeep Kumar Bafna (supra), the Court was dealing 
with rejection of an order of bail under Section 439 CrPC and what is 
meant by "custody". Though the context was different, it is noticeable 
that the Court has adverted to the role of public prosecutor and private 
counsel in prosecution and in that regard, has held as follows:-
" ... in Shiv Kumar v. Hukam Chand (supra), the question
DHARIWAL INDUSTRIES LTD. v. KISHORE WADHWANI & 
ORS. [DIPAK MISRA, J.] 
that was posed before another three-Judge Bench was 
whether an aggrieved has a right to engage its own counsel 
to conduct the prosecution despite the presence of the Public 
Prosecutor. This Court duly noted that the role of the Public 
Prosecutor was upholding the law and putting together a 
sound prosecution; and that the presence 0f a private lawyer 
would inexorably undermine the fairness and impartiality 
which must be the hallmark, attribute and distinction of every 
proper prosecution. In that case the advocate appointed by 
the aggrieved party ventured to conduct the cross-
examination of the witness which was allowed by the trial 
court but was reversed in revision by the High Court, and 
the High Court permitted ooly the submission of written 
argument after the closure of evidence. Upholding the view 
· of the High Court, th is Court went on to observe that before 
the Magistrate any person (except a police officer below 
the rank of Inspector) could conduct the prosecution, but 
that this laxity is impermissible in the Sessions by virtue of 
Section 225 CrPC, which pointedly states that the 
prosecution shall be conducted by a Public Prosecutor .... " 
16. Mr. Tulsi, learned senior counsel, has drawn inspiration from 
the aforesaid authority as Shiv Kum"r (supra) has been referred to in 
the said judgment and the Court has made a distinction between the role 
of the public prosecutor and
the role of a complainant before the two 
trials, namely, the sessions trial and the trial before a Magistrat~'s Couti. 
17. As the factual score of the case at hand is concerned, it is 
noticeable that the trial court, on the basis of an oral prayer, had permitted 
the appellant to be heard along with the public prosecutor. Mr. Tutsi, 
learned senior counsel submitted such a prayer was made before the 
trial Magistrate and he had no grievance at that stage but the grievance 
has arisen because of the interference of the High Court that he can 
only participate under the directions of the Assistant Public Prosecutor 
in charge of the case which is postulated under Section 301 CrPC. 
18. We have already explained the distinction between Sections 
30 I and 302 CrPC. The role of the informant or the private party is 
limited during the prosecution of a case in a Court of Session. The 
counsel engaged by him is required to act under the directions of public 
prosecutor. As far as Section 302 CrPC is concerned, power is conferred 
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on the Magistrate to grant permission to the complainant to conduct the 
·prosecution independently. 
19. We would have proceeded to deal with the relief prayed for 
by Mr. Tutsi but, no application was filed under Section 302 CrPC and, 
therefore, the prayer was restricted to be heard which is postulated 
under Section 301 CrPC. Mr. Singh, learned senior counsel appearing 
for the respondents would contend that an application has to be filed 
while seeking permission. Bestowing our anxious consideration, we are 
obliged to think that when a complainant wants to take the benefit as 
provided under Section 302 CrPC, he has to file a written application 
making out a case in terms of J.K. I11tematio11al (supra) so that the 
Magistrate can exercise the jurisdiction as vested in him and form the 
requisite opinion. 
20. Mr. Tulsi, learned senior counsel appearing for the appellant 
submits that he intends to file an application before the learned Magistrate 
and hence, liberty may be granted. Mr. Singh has seriously opposed the 
same. Regard being had to the rivalised submissions, we only observe 
that it would be open to the appellant, if so advised, to file an application 
under Section 302 CrPC before the learned Magistrate. It may be clearly 
stated here that the said provision· applies to every stage including the 
stage of framing charge inasmuch as the complainant is permitted by 
the Magistrate to conduct the
prosecution. We have said so to clarify 
the position of law. If an application in this regard is filed, it shall be 
dealt with on its own merits. Needless to say, the order passed by the 
learned Magistrate or that of the High Court will not be an impediment 
in dealing with the application to be filed under Section 302 CrPC. It is 
also necessary to add that we have not expressed any opinion on the 
merits of the application to be filed. 
21. The criminal appeal is, accordingly, disposed of. 
Devika Gujral 
Appeal disposed of.