A private counsel engaged by complainant can act only under guidance of the public prosecutor : A private counsel engaged by the complainant can act only under the guidance and instructions of the public prosecutor who is in-charge of the prosecution u/s 301, 302, 225 CrPC. See :
(i) Sidharth Vashisth alias Manu sharma Vs. State of NCT of Delhi, AIR 2010 SC 2352
(ii) Shiv Kumar Vs. Hukum Chand, 1999 (39) ACC 715 (SC)
(iii) Kartika Chandra Bhattacharya Vs. State of UP, 1993 (30) ACC 688 (All)
(iv) Suresh Chandra Sharma Vs. State of UP, 1986 (23) ACC 234 (All)
(v) Iqbal Ahmed Vs. Ketki Devi, 1976 CrLJ 244 (All)
P.V. Reddy Former Judge, Supreme Court
In an adversarial system like ours, criminal cases become a contest between the accused and the State, represented by the Public Prosecutor. There is very little role envisaged for the victim, who is the most affected by the crime. Her plight is forgotten in the battle for supremacy between the State and the accused.
disturbing features of the criminal justice system
The crude methods of investigation in which the use of third degree methods reigns supreme, ill-trained and ill-equipped police personnel lacking in people-friendly orientation, inefficient prosecuting machinery, lack of coordination between investigating and prosecuting agencies, witnesses being subjected to intimidation, tardy and long-drawn trials, and lack of accountability for the failure of prosecution, are some of the disturbing features of the criminal justice system of the present day in our country.
Next is section 302 bearing the caption "Permission to conduct prosecution", which is with reference to the inquiries and trials in a Magistrate's court. Section 301 (2) applies to the prosecutions conducted in all courts whereas section 302 is confined in trial in a Magistrate's court. The distinction between sections 301(2) and 302, as highlighted by the Supreme Court in the two decisions of Shivkumar v. Hukum Chand, (1997) 7 see 467 and J. K. International v. State, (2001) 3 see 462 seems to suggest that a counsel engaged by a victim or a third party may be allowed to intervene, nay, play a primary role in the conduct of prosecution before a Magistrate's court, whereas in the sessions court, he is only permitted to have a limited or subordinate role.
- 302 reads: (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 conduction the prosecution may do so personally or by a pleader.
These provisions, namely, sections 301 and 302, give some scope for the intervention of the victim or the persons aggrieved by the offence, in the trial proceedings. Apart from this, the victim also has' the opportunity to address the court in case the Magistrate is not inclined to take cognizance after the police report is submitted. Further, the informant or the victim can also have her say when bail is liable to be cancelled