Case Note & Summary
The petitioner, an Executive Accounts Officer of M/s. Ravissant Private Limited, filed a writ petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, challenging an order of the Metropolitan Magistrate, 8th Court, Esplanade, Mumbai, dated 1 September 2021. The company was engaged in manufacturing and sale of silver and silver plated gift articles and fashionware. The respondent no.2 was the Senior Store Manager, and internal enquiries revealed that she had been selling products based on fabricated bills and misappropriating payments, causing unlawful loss to the company. Consequently, the company lodged FIR C.R. No.89/2016 against respondent no.2 for offences under Sections 406, 420, 465, 468, 471 read with 34 of the Indian Penal Code. After investigation, a final report was filed on 27 March 2017. The accused later filed an application on 23 November 2017 seeking defreezing of her Mutual Fund Folios and Demat Account, which had been frozen during investigation. The petitioner, being likely adversely affected by the defreezing application, filed an intervention application dated 5 August 2021, seeking to intervene and be heard. The legal issues before the High Court were: (i) whether a private person aggrieved by an offence can approach the Magistrate and seek permission to conduct the prosecution himself; and (ii) whether the trial Court was justified in awarding costs. The petitioner's counsel relied on several decisions, including State Bank of India v. Rajendra Kumar Singh, Basappa Durgappa Kurubar v. State of Karnataka, Baba Abdul Khan v. A.D. Sawant, Gorakshanarth Aadiwasi Sevabhavi Sanstha v. State of Maharashtra, Shamrao Sampatrai Khanderai v. State of Maharashtra, and Ramchetsing Arjunsing v. Deoji Kalyanji, to argue that parties adversely affected have a right of audience. However, the court noted that those judgments pertained to disposal of property under Chapter XXXIV of the Code of Criminal Procedure and could not be extended to allow a private individual to conduct prosecution. The petitioner's counsel also relied on J.K. International v. State (Govt. of NCT of Delhi), Dhariwal Industries Ltd. v. Kishore Wadhwani, and Shivkumar v. Hukumchand. The High Court examined the scope of Sections 301 and 302 of the Code of Criminal Procedure. It referred to Dhariwal Industries, where the Supreme Court held that Section 301 applies to trials before Magistrate as well as Sessions Court, but Section 302 is confined to Magistrate's Court. The Supreme Court had observed that a private person can be permitted to conduct prosecution in Magistrate's Court, and before granting permission, the court must form an opinion that the cause of justice would be best subserved; generally, such permission should be granted. The court also noted the principles from Mallika Arjun Kotagali v. State of Karnataka, which recognized that an aggrieved person/victim has rights to be impleaded, to know, to be heard, and to assist the court in pursuit of truth. The Magistrate may consider whether the victim is in a position to assist the court and whether the trial involves complexities which cannot be handled by the victim. A written application is required, and Section 302 applies at every stage including the stage of framing charge. The private person permitted to conduct prosecution can engage counsel. Applying these principles, the High Court found that the learned Metropolitan Magistrate had relied solely on Section 301 and overlooked Section 302. The proceedings were before the Magistrate Court, and the petitioner had filed an application for intervention. The Magistrate ought to have considered whether the petitioner would be in a position to assist the court and whether the proceedings involved such complexities that could not be handled by the petitioner. The court held that the impugned order declining audience was unsustainable. Additionally, the court held that the Magistrate was not justified in imposing cost of Rs.2,000 on the petitioner. Accordingly, the High Court quashed and set aside the impugned order and directed the Magistrate to decide the petitioner's intervention application dated 5 August 2021 in accordance with law, preferably within two months from the date the order is produced. The rule was made absolute and the petition disposed of.
Headnote
A) Criminal Procedure - Private Prosecution - Right of Aggrieved Person to Conduct Prosecution in Magistrate's Court - Code of Criminal Procedure, 1973, Sections 301, 302 - The court examined whether a private person aggrieved by an offence can seek permission to conduct prosecution before a Magistrate. It held that under Section 302, an aggrieved person/victim has rights to be impleaded, to know, to be heard, and to assist the court; the Magistrate may grant permission if satisfied that the victim is in a position to assist the court and the trial involves complexities; a written application is required and the permission can be granted at any stage including framing of charge. Held that the Magistrate ought to have considered the petitioner's application under Section 302 rather than only Section 301 (Paras 6, 10-12). B) Criminal Procedure - Scope of Section 301 vis-a-vis Section 302 - Distinction between Role of Private Party in Magistrate's Court and Sessions Court - Code of Criminal Procedure, 1973, Sections 301, 302 - The court discussed that Section 301(1) empowers Public Prosecutor without written authority if in charge, Section 301(2) imposes curb on counsel engaged by private party, and Section 301 applies to all courts including Sessions, while Section 302 is confined to Magistrate's Court. In Sessions Court, private party's counsel must act under directions of Public Prosecutor; in Magistrate's Court, private person can be permitted to conduct prosecution. Held that the Magistrate erroneously relied solely on Section 301 and overlooked Section 302 (Paras 10-12). C) Criminal Procedure - Disposal of Property - Right of Affected Party to be Heard under Chapter XXXIV - Code of Criminal Procedure, 1973, Chapter XXXIV - The court distinguished judgments cited by petitioner that recognized right of affected party to be heard in matters of disposal of property under Chapter XXXIV; such rights cannot be extended to allow a private aggrieved individual to conduct prosecution. However, those decisions did not preclude the application of Section 302 in the present facts (Paras 8-9). D) Criminal Procedure - Costs - Power of Magistrate to Impose Costs - Code of Criminal Procedure, 1973 - The court held that the Metropolitan Magistrate was not justified in imposing cost of Rs.2,000 on the petitioner for seeking audience; the Code of Criminal Procedure does not provide such power in the given context, and the order imposing cost was quashed and set aside (Paras 6, 12-13).
Issue of Consideration
(i) Whether private person aggrieved by offence committed against him or against anyone in whom he is interested, can approach the Magistrate and seek permission to conduct the prosecution himself? (ii) In the facts and circumstances of the case, whether the learned trial Court was justified in awarding costs?
Final Decision
The impugned order dated 1 September 2021 was quashed and set aside. The learned Magistrate was directed to decide the petitioner's intervention application dated 5 August 2021 in accordance with law, preferably within two months from the date the order is produced. The cost of Rs.2,000 imposed on the petitioner was also quashed and set aside. Rule was made absolute and the petition was disposed of.
Law Points
- Aggrieved person has right to be heard and assist court under Section 302 CrPC
- Magistrate can grant permission to conduct prosecution if satisfied
- Section 302 confined to Magistrate's Court
- Section 301 applies to all courts
- private party in Sessions Court acts under Public Prosecutor
- no power to impose cost in such circumstances
