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4. Being dissatisfied with the aforesaid order, the respondent-accused 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: (Kishore Wadhwani case [Kishore Wadhwani v. State of Maharashtra, 2012 SCC OnLine Bom 211 : (2012) 5 Mah LJ 252] , SCC OnLine Bom para 16) "16. 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 301 CrPC. 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) CrPC 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 of 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 CrPC for the same reasons, as given in Anthony D'Souza case [Anthony D'Souza v. Radhabai Brij Ratan Mohatta, (1984) 1 Bom CR 157 : 1983 SCC OnLine Bom 257] 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 2 shall act under the directions of the Assistant Public Prosecutor in charge of the case."

6. 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 found with the order of the High Court. It is his 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 [J.K. International v. State (Govt. of NCT of Delhi), (2001) 3 SCC 462 : 2001 SCC (Cri) 547] and Shiv Kumar v. Hukam Chand [Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 :

13. Having carefully perused both the decisions, we do not perceive any kind of anomaly either in the analysis or ultimate conclusion arrived at by the Court. We may note with profit that in Shiv Kumar [Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 : 1999 SCC (Cri) 1277] , the Court was dealing with the ambit and sweep of Section 301 CrPC and in that context observed that Section 302 CrPC is intended only for the Magistrate's Court. In J.K. International [J.K. International v. State (Govt. of NCT of Delhi), (2001) 3 SCC 462 : 2001 SCC (Cri) 547] 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.

17. 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 the 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.

18. 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 [J.K. International v. State (Govt. of NCT of Delhi), (2001) 3 SCC 462 : 2001 SCC (Cri) 547] so that the Magistrate can exercise the jurisdiction as vested in him and form the requisite opinion.