CrPC Section 302 – Permission To Conduct Prosecution

Section 302 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) provides details about the appointment of persons to conduct the prosecution in cases related to offences committed in India. Section 302 is discretionary in nature and gives power to the Magistrate to permit some people to conduct the prosecution and restrict others from doing so.

Legal Provision Of CrPC Section 302

“Section 302- Permission To Conduct Prosecution-

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 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.”

Understanding CrPC Section 302

Section 302 of CrPC specifies the procedure for appointing a person to conduct the prosecution in criminal cases. The crux of the above provision is as follows:

• Discretion of the Magistrate : Section 302 empowers the Magistrate to allow any person, other than a police officer below the rank of Inspector, to conduct the prosecution. In other words, the prosecution is not strictly confined to the regular Public Prosecutor or Assistant Public Prosecutor. The discretion lies entirely with the Magistrate to allow anyone to conduct the prosecution and it is according to his judicial discretion.
• Eligible Persons to Conduct Prosecution: Though the Section allows an array of persons to be permitted to conduct the prosecution, it provides certain restrictions:
  • No police officer below the rank of Inspector can take over to prosecute.
  • A person to whom the Magistrate has not explicitly given permission shall not conduct the prosecution, except if he is Advocate General, Government Advocate, Public Prosecutor or Assistant Public Prosecutor.
• Restrictions on Police Officers: A significant limitation is that an officer involved in the investigation of the case shall not be allowed to carry out the prosecution. This is to avoid any conflict of interest or bias while conducting the prosecution, as the police officers are involved in the case and might not be impartial.
• Mode of Conducting Prosecution: A person conducting a prosecution may either prosecute in person or by a pleader (legal representative). This discretion allows the prosecution to be flexible, especially in complicated cases where legal expertise may be needed.

Objectives Of CrPC Section 302

Section 302 of CrPC has the following major objectives:

• Protection of Fairness in Prosecution: Section 302 of CrPC makes sure that the process of prosecution is fair and unbiased by providing the Magistrate with the discretion of deciding who can conduct the prosecution. It ensures that persons who, for instance, may be interested in the case or took part in the investigation into the alleged crime cannot conduct the prosecution.
• Flexibility in Criminal Proceedings: Section 302 of CrPC is elastic in nature as it does not limit the prosecution to certain government-appointed prosecutors. Instead, it permits private individuals to be represented in the prosecution under the discretion of the Magistrate, thus providing accommodation for special circumstances where the usual Public Prosecutor may not be available or suitable.
• Protection of Interests of Justice: Thus, Section 302 of CrPC acts as a protection to ensure that the ends of justice is not defeated on account of procedural technicalities. For example, if an individual is better trained in more suitable pleadings and is better suited to conduct the case, the Magistrate can permit them to do so.

Case Laws On CrPC Section 302

Shiv Kumar vs. Hukam Chand And Anr (1999)

In this case, the Court held that Section 302 of CrPC relates specifically to Magistrate Courts and vests Magistrate s with powers wherein Magistrate s are empowered to allow any person to conduct any prosecution. The only restriction is that such permission cannot be extended to police officers less than the rank of Inspector.

Importantly, the Court recognized that such leniency is applicable only to it. The Court pronounced that in Sessions Courts, prosecutions can be conducted only under the hand of a Public Prosecutor as mandated under Section 225 of the CrPC.

Jimmy Jahangir Madan vs. Bolly Cariyappa Hindley (Dead) By Lrs (2004)

The Court held that the power of attorney holder cannot file an application under Section 302 of CrPC for continuing prosecution. The application shall be filed by the heirs of the complainant, either personally or by a pleader.

• A 'pleader' is either a legal practitioner authorised to practise law, or any other person appointed with the permission of the Court.
• On this, the Court clarified that a power of attorney holder can represent a party under Sections 205 and 302 of the CrPC, only if the concerned person seeks and receives permission from the Court for such representation.
• It thus set aside the orders of the trial Court as well as that of the High Court allowing the power of attorney holders to continue the prosecution.
• It further allowed the legal heirs the liberty to file fresh applications, either personally or seeking permission to let their power of attorney holders represent them.

Dhariwal Industries Ltd. vs. Kishore Wadhwani (2016)

In this case, the Court held the following with respect to Section 302 of CrPC:

• The provisions of Section 302 CrPC apply to Magistrate Courts only. It allows the Magistrate to authorise any person to conduct the prosecution.
• This means that in a Court of Magistrate, any person (other than a police officer below the rank of Inspector) can carry on the prosecution if the Magistrate permits them to do so. Once permission is granted, the person concerned may appoint any counsel to carry on the prosecution on his behalf.
• However, this wider scope for private individuals to carry on the prosecution is limited to Magistrate Courts.
• The right of a private person to participate in the conduction of prosecution before a Sessions Court is restricted. It is subject to the control of the public prosecutor.
• For a complainant who intends to conduct his prosecution under Section 302 of CrPC, he must file a written application setting out of his case. This allows the Magistrate to rightly exercise his jurisdiction and frame appropriate opinion.
• Section 302 of CrPC is applicable to all stages of the case which also includes the stage of framing of charges.

Chand Devi Daga vs. Manju K. Humatani (2017)

In this case, the Court was concerned with whether Section 302 of the CrPC is applicable in the context of the death of a complainant during the pendency of the legal proceedings. In this regard, the Court held the following:

The Supreme Court held that the High Court has also not committed any error in granting leave for the legal heirs of the complainant to prosecute the Criminal Miscellaneous Petition in the High Court. The decision of the Supreme Court was based on the principles and interpretation of several Sections of the CrPC:

• Section 302 of the CrPC empowers the Magistrate to permit any person other than a police officer below the rank of Inspector, to conduct the prosecution. Except in the case of an Advocate-General, Government Advocate, Public Prosecutor, or Assistant Public Prosecutor, others require permission from the Magistrate to conduct the prosecution before the Court.
• The Court held that Section 256 of CrPC, which deals with the non-appearance or death of a complainant in summons cases, does not mandate the rejection of the complaint on account of the death of the complainant. The discretion to continue with the complaint is always available to the Magistrate even in such cases. The principle applies all the more strongly in warrant cases where no such specific provision mandates any rejection on account of the death of the complainant.

The Court in this case held that the death of a complainant brings about no automatic withdrawal of the prosecution proceeding. The CrPC provides a remedy for the continuance of the prosecution by accommodating the legal heirs or other authorised persons of the deceased complainant.

Practical Implications Of CrPC Section 302

• Private Persons to be Involved in Prosecution: Sometimes private persons, like complainants or victims, are also permitted to carry out the prosecution. It is essentially relevant where the victims have felt that their interests were not being represented properly by the state-appointed prosecutor. Section 302 of CrPC gives them a chance to be more actively involved in carrying out the prosecution process.
• Role of Legal Representatives: The provision for the conduction of prosecution through a pleader provides an avenue whereby an experienced legal practitioner can handle any complex legal issues in a better way during a trial. It is helpful in cases involving complicated legal questions or where technical legal knowledge is involved.
• Avoidance of Conflict of Interest by Police Involvement: The limitation imposed on the investigating officer ensures fairness for the prosecution. This is so as to eliminate the situation where the police officer investigating the case might act in a manner that would compromise the fairness of the trial.

Challenges And Criticisms Of CrPC Section 302

• Discretionary Nature: The criticism of Section 302 of CrPC is that it has conferred too much discretion to the Magistrate granting people to conduct the prosecution. The lack of clearly defined guidelines thus may result in application on inconsistent grounds. It can be applied inconsistently in different cases.
• Limited Role for Victims: Section 302 of CrPC provides for the right of private individuals to prosecute, but only subject to permission to be accorded by the Magistrate. However, it is not mandatory that the Magistrate will always grant the permission. This might limit the role of victims in actively taking part in the process of prosecution.
• Potential for Misuse: A provision like Section 302 of CrPC has the potential for gross abuse if discretion on the part of the Magistrate is not exercised judiciously. In other words, by allowing a person having a vested interest to conduct the prosecution, the fairness of the trial can be jeopardised.

Conclusion

Section 302 of the Code of Criminal Procedure, 1973, is an important provision that makes the prosecution process in criminal cases much more flexible and fair. The Section enables the Magistrate to authorise persons to conduct the prosecution. Section 302 of CrPC simultaneously ensures that there be safeguards against possible conflicts between such interests. However, the discretion involved under this provision requires judicious exercise of judicial discretion to uphold the sanctity of the legal process.

Therefore, the provision strikes a balance between allowing state appointed prosecutors to carry out the cases and giving private individuals the chance to seek justice when necessary. In this regard, the Courts play an important role in ensuring that Section 302 of CrPC is interpreted in a way that would give an ample chance to abide by the tenets of justice and impartiality in criminal prosecutions.