Madhya Pradesh High Court
Shweta Suman vs The State Of Madhya Pradesh on 3 April, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 3rd OF APRIL, 2024
MISC. CRIMINAL CASE No. 10685 of 2024
BETWEEN:-
SHWETA SUMAN W/O GYANENDRA SHARMA,
AGED ABOUT 32 YEARS, OCCUPATION: D/O
SHRI SATENDRA KUMAR OCCUPATION
HOUSE WIFE R/O FLAT NO 301 BLCOK 7-D
RIGAL TOWN AWADHPURI KHAJURI KALA
BHOPAL DISTRICT BHOPAL (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI ANKIT SAXENA - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION
AWADHPURI BHOPAL DISTRICT
BHOPAL (MADHYA PRADESH)
2. GYANENDRA SHARMA S/O SHRI ARUN
KUMAR SHARMA, AGED ABOUT 34
YEARS, R/O 47, AMAN AGENCY
SAMARTH PARK UMARIYA, MAHU,
DISTRICT INDORE (MADHYA PRADESH)
3. SHARMILA SHARMA W/O SHRI ARUN
KUMAR SHARMA, AGED ABOUT 58
YEARS, R/O 47, AMAN AGENCY
SAMARTH PARK UMARIYA, MAHU,
INDORE INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI K.S. BAGHEL - GOVERNMENT ADVOCATE )
............................................................................................................................................
This application coming on for admission this day, the court passed
the following:
2
ORDER
This application under Section 482 of Cr.P.C. has been filed against order dated 29.11.2023 passed by JMFC, Bhopal in RCT No.7814/2022 by which an application filed by complainant under Section 242(3) of Cr.P.C. has been partially dismissed.
2. The necessary facts for disposal of present application in short are that trial is going-on on the basis of charge sheet filed by the Police. The complainant filed an application under Section 242(3) of Cr.P.C. for filing Bank statements, photographs, medical report as well as Compact Disc with transcript. By impugned order dated 29.11.2023, the trial Court has partially allowed the said application and the Bank statements, which were filed by the complainant alongwith her application under Section 242(3) of Cr.P.C. were taken on record, whereas application in respect of photographs, medical report and C.D. with transcript has been rejected.
3. Before considering the merits of the case, this Court would like to consider as to whether complainant could have filed an application under Section 242(3) of Cr.P.C. specifically when the Police has not filed the said documents alongwith the charge sheet or not?
4. In a Sessions trial, complainant can file an application under Section 301(2) of Cr.P.C. for assisting the prosecution, whereas in a Magisterial trial, complainant can file an application under Section 302 of Cr.P.C. seeking permission to conduct prosecution. There is a distinction between permission to assist the Public Prosecutor and to conduct prosecution. The said distinction has been considered by the Supreme Court in the case of Dhariwal Industries Limited Vs. 3 Kishore Wadhwani and Others reported in (2016) 10 SCC 378, in which it has been held as under:
"9. Section 302 CrPC which is pertinent for the present case reads as follows:
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 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 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."
10. In Shiv Kumar [Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 : 1999 SCC (Cri) 1277] interpreting the said provision, the Court has ruled: (SCC pp. 471-72, paras 8-9 & 11-12) "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 officer below the rank of Inspector. Such 4 person need not necessarily be a Public Prosecutor.
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 is granted the person concerned can appoint any counsel to conduct the prosecution on his behalf in the Magistrate's Court.
***
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 a 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 301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined to Magistrate Courts, this particular section is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from employment of the words "any court" in Section 301. In view of the provision made in the succeeding section as for Magistrate Courts the insistence contained in Section 301(2) must be understood as applicable to all other courts without any 5 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 court 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."
11. It is apt to note here that in the said decision in Shiv Kumar case [Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 :
1999 SCC (Cri) 1277] it has also been held that from the scheme of CrPC, 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 true facts involved in the case.
12. In J.K. International [J.K. International v. State (Govt. of NCT of Delhi), (2001) 3 SCC 462 : 2001 SCC (Cri) 547] , a three-Judge Bench was adverting in detail to Section 302 CrPC. In that context, it has been opined that (SCC pp. 466-67, para 12) the private person who is permitted to conduct 6 prosecution in the Magistrate's Court can engage a counsel to do the needful in the 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 if the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission. Clarifying further, it has been held that the said wider amplitude is limited to the 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 subject to the control of the Public Prosecutor."
5. Since, the case in hand is a Magisterial trial, therefore, provisions under Section 301(2) of Cr.P.C. would not apply and complainant can be granted permission to conduct prosecution under Section 302 of Cr.P.C.. Therefore, the moot question for consideration is as to whether, complainant was ever granted permission to conduct prosecution or not?
6. The applicant has not filed a copy of order by which permission to conduct prosecution was granted to the complainant. From the order sheets, it is clear that the Public Prosecution is still appearing for the State. In absence of order under Section 302 of Cr.P.C., this Court is of considered opinion that complainant has no right to file an application under Section 242(3) of Cr.P.C. for placing documents on record, which are not the part of a charge sheet. Furthermore, the counsel for applicant also could not point out the relevancy of photographs, medical report as well as C.D. with transcript. The photographs are not the primary evidence. Similarly, the C.D. without a certificate under Section 65B of 7 Evidence Act (if required) and without any authentication that it contains undoctored conversation cannot be taken on record at the behest of complainant. Furthermore, the trial Court has also held that applicant has failed to prove the relevancy of the medical report.
7. Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that no jurisdictional error was committed by the trial Court by rejecting the application filed by complainant/applicant under Section 242(3) of Cr.P.C. .
8. Accordingly, petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE SR* Digitally signed by SHANU RAIKWAR Date: 2024.04.04 18:26:14 +05'30'