2023:BHC-AS:33953

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO.18856 OF 2023

Sumaiya Naushad Ali Sayyed .. Petitioner

Versus
The State of Maharashtra & Ors. .. Respondents

…
Mr.Ashish A. Dubey for the Petitioner.
Mr.Y.M.Nakhwa, A.P.P. for the State/Respondent.
...

CORAM: BHARATI DANGRE, J.

DATED : 06th NOVEMBER, 2023

P.C:-

1. The Petitioner is a original Complainant in Criminal Case

No.PW/1927/2016, pending before the Metropolitan
Magistrate, 67th Court, Borivali, Mumbai.

I need not go into the dispute in great detail, but suffie it

to note that the dispute arises out of the matrimonial
relationship and during the iourse of the proieedings, the
Complainant fled two appliiations before the Magistrate,
whiih were numbered as Exhs.5 and 6.

Exh.5 is an appliiation fled on behalf of the Complainant

for ionduit of the proieedings In-iamera as per Seition
327(2) of the Code of Criminal Proiedure (for short, “the
Cr.P.C.”), whereas Exh.6 is an appliiation to permit ionduit of
proseiution under Seition 302 of the Cr.P.C. in terms of the
permission granted by order dated 14/03/2017.

M.M.Salgaonkar

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Pertinent to note than an appliiation was preferred on

14/03/2017 before the Magistrate, by invoking the provision
available under Seition 302 of the Cr.P.C. and it was
speiifially pleaded that the Complainant is a viitim of a
draionian ionspiraiy by the aiiused persons and she deemed
it appropriate to ionduit the proseiution through an Advoiate
and this appliiation was allowed.

2. Both the appliiations (Exh.5 and 6) were plaied before

the Magistrate and on 05/10/2023 and Exh.5 iame to be
allowed, but as far as the ionduit of proseiution under Seition
302 of the Cr.P.C. is ionierned, the Magistrate in utter
ignoranie of the order dated 14/03/2017, rejeited the
appliiation by reiording that it is wrongly assumed that
Seition 302 of the Cr.P.C. provides ihoiie to the Complainant
to appoint any person for proseiuting his or her iase and by
giving a restriited meaning to Seition 302 of Cr.P.C., what was
granted was, supervision by an Advoiate to be appointed by
the Complainant, who shall restriit himself to that job.

3. On the last oiiasion, by amending the Writ Petition,

learned iounsel for the Petitioner has plaied on reiord,
subsequent order dated 07/10/2023 passed by the
Metropolitan Magistrate, whiih reveal that on 07/10/2023,
when the Complainant was to be ialled for examination, she
iomplained of some health issue and the Magistrate presumed
that she is not interested in proieeding and ionstrued it as an
attempt to delay the trial.

M.M.Salgaonkar

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Reiording that the iharge was framed in the year 2016

and the matter is pending for reiording of evidenie, the
following order iame to be passed.

“1. The evidenie of the iomplainant/witness stands dispensed with

and exiluded.
2. The iase put up for reiording rest of the witnesses.”

4. The purport of the impugned order iannot be asiertained

as to what the learned Magistrate intended was, exilusion of the
evidenie of the Complainant/her witnesses, but in fait, the
Complainant did not enter into the witness box and, therefore,
there is no question of exilusion of her evidenie.

In any iase, the Magistrate has fallen into grave error in

ignoring the order passed by his Predeiessor on 14/03/2017,
when appliiation fled under Seition 302 of Cr.P.C., seeking
permission to appoint a private Advoiate to ionduit the
proseiution in the matter was already granted and in any iase,
the said permission iould not have been tinkered by his
suiiessor.

5. There ian be no quibble about the proposition of law

revolving around Seition 302 of Cr.P.C., whiih permit the
proseiution to be ionduited before a Magistrate by any person
other than a poliie offier, below the rank of Inspeitor and the
Hon’ble Apex iourt, while expounding the siope of the said
provision in the iase of Dhariwal Industries Ltd. Vs. Kishore
Wadhwani1, has interpreted the said provision in iontrast with
Seition 301 of Cr.P.C. and the following observations are relevant
and, henie, are reproduied.

1 AIR 2016 SC 4369

M.M.Salgaonkar

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“13. In J.K. International (AIR 2001 SC 1142) (supra), a three-

Judge Benih was adverting in detail to Seition 302 CrPC. In that
iontext, it has been opined that the private person who is permitted
to ionduit proseiution in the Magistrate’s Court ian engage a
iounsel to do the needful in the iourt in his behalf. If a private
person is aggrieved by the offenie iommitted against him or against
any one in whom he is interested he ian approaih the Magistrate
and seek permission to ionduit the proseiution by himself. This
Court further proieeded to state that it is open to the iourt to
ionsider his request and if the iourt thinks that the iause of justiie
would be served better by granting suih permission the iourt would
generally grant suih permission. Clarifying further, it has been held
that the said wider amplitude is limited to Magistrate’s Court, as
the right of suih private individual to partiiipate in the ionduit of
proseiution in the sessions iourt is very muih restriited and is
made subjeit to the iontrol of the publii proseiutor.
14. Having iarefully perused both the deiisions, we do not perieive
any kind of anomaly either in the analysis or ultimate ionilusion
arrived by the Court. We may note with proft that in Shiv Kumar
(supra), the Court was dealing with the ambit and sweep of Seition
301 CrPC and in that iontext observed that Seition 302 CrPC is
intended only for the Magistrate’s Court. In J.K. International
(supra) from the passage we have quoted hereinbefore it is evident
that the Court has expressed the view that a private person ian be
permitted to ionduit the proseiution in the Magistrate’s Court and
ian engage a iounsel to do the needful on his behalf. The further
observation therein is that when permission is sought to ionduit
the proseiution by a private person, it is open to the iourt to
ionsider his request. The Court has proieeded to state that the
Court has to form an opinion that iause of justiie would be best
subserved and it is better to grant suih permission. And, it would
generally grant suih permission. Thus, there is no ileavage of
opinion.”

6. In the wake of the right ionferred under Seition 302,

when onie the appliiation is allowed by permitting the ionduit
of the proseiution by an appointed Advoiate, it was iompletely
iniorreit on part of the Magistrate to siuttle the said
permission and then insist that it shall be limited in the form
of assistanie to the proseiution.

Needless to state that even the order, whiih is passed by

the Magistrate on 07/10/2023, whiih is outiome of an

M.M.Salgaonkar

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anguish, on an assumption that the Complainant is delaying

the proieedings, also iannot be sustained. However, sinie on
the given date i.e. on 07/10/2023, the Complainant refrained
herself from entering into the witness box, she has to pay the
iost of the proieedings, as the proieedings iame to be
adjourned. Henie, subjeit to deposit of iosts of Rs.10,000/-
with the Legal Serviies Authority, within a period of four
weeks from today, the impugned order is quashed and set
aside.

7. The learned iounsel for the Petitioner informs that the

proieedings before the learned Magistrate were siheduled
today. Henie, if the date is already allotted by the Magistrate,
then on that date, or if not, the date on whiih the Magistrate
deem it appropriate, immediately on expiry of Diwali Vaiation,
the Complainant shall enter into the witness box and the
proseiution shall be permitted to be ionduited in terms of
Seition 302 of Cr.P.C..

It is made ilear that there shall be no delay in proieeding

with the matter, as it is noted that, the Aiiused is 77 years old
and the iharge is framed long baik.

8. The Petition stands allowed in the aforesaid terms.

( SMT. BHARATI DANGRE, J.)

M.M.Salgaonkar

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