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IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND,MEGHALAYA,


MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
AGARTALA BENCH

CRL.REV. PET. NO.03 OF 2011


Sri Dilip Pal,
S/O Late Jogesh Chandra Pal,
Of Amarpur, Motor Stand,
P.S. Birganj,
District-South Tripura.
..Petitioner
- Vs
1. The State of Tripura,
(Represented by the Secretary cum Commissioner,
Home Department).
2. Sri Nandan Pal,
S/O Sri Niranjan Pal of Shivnagar,
Agartala, P.O. Shivnagar,
P.S. East Agartala,
District-West Tripura.

.Respondents
espondents.
BEFORE
THE HONBLE MR. JUSTICE A.C. UPADHYAY
For the petitioner : Mr. S. Sarkar, Advocate
Mr. D.P. Ghosh, Advocate

For the respondents : Mr. P. Bhattacharjee, Addl. P.P.

Date of hearing : 27.07.2011

Date of delivery of
Judgment and order : 27.07.2011

JUDGMENT & ORDER(ORAL)


ORDER(ORAL)
Heard Mr. S. Sarkar, learned counsel for the

petitioner, and Mr. P. Bhattacharjee, learned Addl. Public

Prosecutor for the State of Tripura.

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2. By filing this application under Section 397, read

with Section 401 of the Code of Criminal Procedure, 1973, the

petitioner has challenged the impugned order dated 08.12.2010,

passed by the learned Sub-Divisional Judicial Magistrate,

Amarpur, South Tripura, in connection with G.R. Case No.68 of

2010, wherein and whereunder the learned SDJM, Amarpur

rejected the prayer of the petitioner for further investigation of

the case under Section 173(8) Cr.P.C. and also rejected the

prayer of the petitioner for allowing to conduct the prosecution

by a counsel engaged by the petitioner, in terms of the provision

of Section 302 Cr.P.C.

3. Sans unnecessary details, the nub of the case is that

the petitioner lodged a missing entry on 06.05.2010, stating

therein that his wife left his house without telling anything to

anybody. A missing entry was made, by Birganj P.S. vide G.D.E.

155 dated 06.05.2010.

4. However, after investigation, wife of the petitioner

was allegedly found in a hotel room with Nandan Pal. The

petitioner filed a complaint before the SDJM, Amarpur, which

was forwarded to the Birganj P.S. for registration of a case and

investigation. On completion of investigation, the investigating

officer, submitted charge sheet under Section 497 IPC, against

the petitioners wife and Nandan Pal. The charge sheet was

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placed before the learned SDJM, Amarpur, South Tripura for

taking cognizance of offence.

5. The petitioner on 08.12.2010 filed a petition under

Section 173(8) of the Code of Criminal Procedure, 1973, before

the learned Sub-Divisional Magistrate, Amarpur, South Tripura,

for further investigation of GR Case No.68 of 2010. On the same

day, the petitioner also filed another petition before the learned

Court below under Section 302 of the Code of Criminal

Procedure, 1973, for granting permission to the petitioner to

conduct the prosecution by a pleader of his own choice.

6. Learned trial Court, considering the facts and

circumstances, rejected both the petitions filed on behalf of the

petitioner on the ground that these are not maintainable.

However, learned trial Court permitted the petitioners counsel to

assist the prosecution and to act under the direction of the Public

Prosecutor.

7. Though, initially the petitioner challenged the

rejection of both the petitions by the learned trial Court by the

impugned order, however, today, when the matter is taken up,

learned counsel for the petitioner submitted that in view of the

decision of the Division Bench of this Court, reported in 2011(2)

GLT 610 : Rana Singh @ Sujit Singh V. State of Tripura he

is not pursuing the rejection of the petition under Section 173(8)

Cr.P.C. by the learned trial Court. However, learned counsel

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submitted that another application filed by the petitioner under

Section 302 Cr.P.C. was rejected without appreciating the

relevant provision of law by the learned Court below.

8. Learned counsel for the petitioner, by referring to

the provisions under Section 302 Cr.P.C. has submitted that the

prayer for engaging a counsel of his own choice was not

considered by the learned Trial court in right perspective. In

support of his contention learned counsel for the petitioner has

relied on the decision of the Honble Supreme Court, reported in

(1) J.K. International v. State, Govt. of NCT of Delhi,

(2001) 3 SCC 462 and (2) (1999) 7 SCC 467 : Shiv Kumar

vs. Hukam Chand & Anr.

9. Honble Supreme Court in J.K. International v.

State, Govt. of NCT of Delhi,(supra) has observed as

follows:

9. The scheme envisaged in the Code of


Criminal Procedure (for short the Code)
indicates that a person who is aggrieved by the
offence committed, is not altogether wiped out
from the scenario of the trial merely because
the investigation was taken over by the police
and the charge-sheet was laid by them. Even
the fact that the court had taken cognizance of
the offence is not sufficient to debar him from
reaching the court for ventilating his grievance
Even in the Sessions Court, where the Public
Prosecutor is the only authority empowered to
conduct the prosecution as per Section 225 of
the Code, a private person who is aggrieved by
the offence involved in the case is not
altogether debarred from participating in the
trial. This can be discerned from Section 301(2)
of the Code which reads thus:

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301. (2) If in any such case any private
person instructs a pleader to prosecute any
person in any court, the Public Prosecutor or
Assistant Public Prosecutor in charge of the
case shall conduct the prosecution, and the
pleader so instructed shall act therein under
the directions of the Public Prosecutor or
Assistant Public Prosecutor, and may, with the
permission of the court, submit written
arguments after the evidence is closed in the
case.
10. The said provision falls within the
Chapter titled General Provisions as to
Inquiries and Trials. When such a role is
permitted to be played by a private person,
though it is a limited role, even in the Sessions
Courts, that is enough to show that the private
person, if he is aggrieved, is not wiped off from
the proceedings in the criminal court merely
because the case was charge-sheeted by the
police. It has to be stated further, that the
court is given power to permit even such
private person to submit his written arguments
in the court including the Sessions Court. If he
submits any such written arguments the court
has a duty to consider such arguments before
taking a decision.
11. In view of such a scheme as delineated
above how can it be said that the aggrieved
private person must keep himself outside the
corridors of the court when the case involving
his grievance regarding the offence alleged to
have been committed by the persons arrayed
as accused is tried or considered by the court.
In this context it is appropriate to mention that
when the trial is before a Magistrate's Court the
scope of any other private person intending to
participate in the conduct of the prosecution is
still wider. This can be noticed from Section
302 of the Code which reads thus:
302. (1) Any Magistrate inquiring into or
trying a case may permit the prosecution to be
conducted by any person other than a 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

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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.
12. The private person who is permitted to
conduct prosecution in the Magistrate's Court
can engage a counsel to do the needful in the
court in his behalf. It further amplifies the
position that if a private person is aggrieved by
the offence committed against him or against
anyone in whom he is interested he can
approach the Magistrate and seek permission
to conduct the prosecution by himself. It is
open to the court to consider his request. If the
court thinks that the cause of justice would be
served better by granting such permission the
court would generally grant such permission.
Of course, this wider amplitude is limited to
Magistrates' Courts, 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. The limited role which a
private person can be permitted to play for
prosecution in the Sessions Court has been
adverted to above. All these would show that
an aggrieved private person is not altogether to
be eclipsed from the scenario when the
criminal court takes cognizance of the offences
based on the report submitted by the police.
The reality cannot be overlooked that the
genesis in almost all such cases is the
grievance of one or more individual that they
were wronged by the accused by committing
offences against them.

10. In Shiv Kumar v. Hukam Chand, (1999) 7 SCC

467, the Honble Supreme Court observed as follows:

7. Section 302 of the Code has also some


significance in this context and hence that is
also extracted below:
302. Permission to conduct prosecution.
(1) Any Magistrate enquiring into or trying a
case may permit the prosecution to be
conducted by any person other than a police
officer below the rank of Inspector; but no

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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.

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
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.
10. But the above laxity is not extended to
other courts. A reference to Section 225 of the
Code is necessary in this context. It reads thus:
225. Trial to be conducted by Public
Prosecutor.In every trial before a Court of
Session, the prosecution shall be conducted by
a Public Prosecutor.
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

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the insistence contained in Section 301(2)
must be understood as applicable to all other
courts without any 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. Mr. P. Bhattacharjee, learned Addl. P.P. for the State

respondent has submitted that the petitioner has sought for

permission to engage a counsel of his choice, therefore, the

matter may be examined by the trial Court in right perspective,

considering the facts and circumstances of the case in view of

the decisions of the Honble Supreme Court and the relevant

provisions of law.

12. Considering the facts and circumstances, I propose

to dispose of this petition with a direction to the petitioner to file

appropriate application before the learned Court below under

Sections 301/302 Cr.P.C., if so advised. On filing of such

application by the petitioner in connection with this case in terms

of the above, the learned Sub-Divisional Judicial Magistrate,

Amarpur shall consider the same in accordance with law keeping

in view of the observations made above.

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13. In view of the above, the impugned order in so far as

it relates to the petition filed before the trial Court for

engagement of a counsel by the petitioner is hereby set aside.

14. With the observations and directions, this revision

petition stands disposed of.

JUDGE

nk

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