MEENA NAGRAJ OSWAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner is the Original Complainant in Criminal Case No. 1091 88 in which the Respondent No. 3, the husband of the petitioner, and the Respondents Nos. 2, 4 and 5 face prosecution upon a report by the police dated 26-7-1988 for the offences under Sections 498-A, 323, 504, 506 read with Section 34 of the Indian Penal Code. The petitioner made an application to the Judicial Magistrate, First Class, Court No. 6, Pune, for permission to conduct the prosecution through an advocate other own choice. The application made under, Section 302 of the Code of Criminal Procedure was rejected by the learned Magistrate on 31-3-1989. Criminal Revision Application No. 168 of 1989 challenging the Magistrate's order was rejected by the learned Sessions Judge, Pune, on 8-9-1989. The petitioner invokes this Courts power under Section 482 of the Code of Criminal Procedure and seeks an order that may be permitted to prosecute the case through her own advocate.

(2.) CERTAIN provisions of the Code of Criminal Procedure, 1973- hereinafter referred to as the Code- in regard to the prosecution by a person other than the Assistant Public Prosecutor or the Public Prosecutor appointed by the State may be considered. The code created a new office of the Assistant Public Prosecutor for the Courts of Magistrates in the place of Public Prosecutors who prosecuted the cases prior to the enactment of the Code (Section 25 of the Code ). It is only where no Assistant Public Prosecutor is available for the purposes of any particular case, that any other person may be appointed as the Assistant Public Prosecutor in charge of that case (Section 25 (3) of the Code ). In the cases before the Court of Sessions, the prosecution shall be conducted by the Public Prosecutors (Section 225 of the Code) The Assistant Public Prosecutor in charge of the case before the Magistrate may appear and plead, without any written authority (Section 301 (1) of the Code ). However any private person may instruct a pleader to prosecute, my person. But the Assistant Public Prosecutor in charge of the case shall conduct the prosecution (Section 30 1 (1) of the Code ). The pleader intruded by a private person shall act therein under the directions of the Assistant Public Prosecutor (Section 301 (2) of the Code ). However, such pleader may with the permission of the Court submit written arguments after the evidence is closed (Section 301 (2) of the Code) Section 302 of the Code on which this application is based empowers any Magistrate inquiring into or trying a case to permit the prosecution to he conducted by any person other than a police officer below the rank of Inspector.

(3.) THE question is whether as Magistrate trying a case instituted on a police report may permit the Complainant to conduct the prosecution through a pleader chosen by her.