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Dipak Misra, J.

Leave granted.

2. The present appeal, by special leave, assails the order dated 13 th February, 2012 passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 3438 of 2010 whereby the learned Single Judge has modified the order dated 30th August, 2010 whereunder the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Mumbai in C.C.No.927/PW/2007 had permitted the appellant to be heard at the 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.

Section 301 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 Section173(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. If by 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 301 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 allowing 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.” 1 Anthony D’Souza v. Mrs. Radhabai Brij Ratan Mohatta, 1984 (1) BC.R. 157

7. Mr. Vikas Singh, learned senior counsel, in his turn, contends that Section 301 CrPC 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 2 (2001) 3 SCC 462 3 (2014) 16 SCC 623 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 another4 which needs to be reconciled.

18. We have already explained the distinction between Sections 301 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 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. Tulsi 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. International (supra) so that the Magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.