Firstly, let me point out that in cases which are instituted on a private complaint, and are not on the basis of a police report (i.e., a charge sheet filed by police), the prosecution is generally conducted by the complainant (who is generally the victim or his relative / representative) or his lawyer. This is relevant mostly for the cases before the Magistrate courts.
On the other hand, in cases which are instituted on the basis of a charge sheet filed by the police, the prosecution is required to be conducted by the Public Prosecutor or the Assistant Public Prosecutor, as required under Section 301 of the Criminal Procedure Code (Cr.P.C.). However, the lawyer of the complainant / victim can be allowed to assist (and act under the directions of) the Public Prosecutor or the Assistant Public Prosecutor in the trial, as per sub-section (2) thereof.
Section 301 Cr.P.C. is as under:
“301. Appearance by Public Prosecutors.—(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.
(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.”
What is mentioned above is applicable to all cases in general, i.e., cases which are triable by Sessions Court as well as in Magistrate courts.
However, there is a more liberal provision in Section 302 of Cr.P.C. relating to cases which are pending for inquiry or trial in a Magistrate court (i.e., this provision is NOT applicable to Sessions Court trials):
“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.”
Thus, for a trial pending in a Magistrate court, the victim / complainant or his lawyer can be allowed to conduct prosecution, if the Magistrate court permits him to do so. In such a situation, if such permission is granted, the prosecution will be conducted completely by the victim or his lawyer. And, this can happen even in cases which are instituted on the basis of a charge sheet filed by police; but, the limitation is that the case should be triable by a Magistrate (and not Sessions Court) and that the Magistrate should permit it.
In this regard, it is pertinent to point out that in the case of Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467, the Supreme Court held that:
“From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.”
The Supreme Court observed that it is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court.
However, the above judgment was in respect of a private lawyer assisting the Public Prosecutor under Section 301(2) of the Cr.P.C., which is mostly relevant for the trials in the Sessions Court.
For a trial in a Magistrate Court, Section 302 of Cr.P.C. may additionally come into play.
For example, in the case of J.K. International v. State (NCT of Delhi), (2001) 3 SCC 462, referring to Section 302 of Cr.P.C., the Supreme Court held 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. Explaining the provisions of Section 302, Cr.P.C., the Supreme Court further observed that:
“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.”
In Dhariwal Industries Ltd. v. Kishore Wadhwani, (2016) 10 SCC 378, the Supreme Court approvingly referred to the above J.K. International case to the effect that a private person can be permitted to conduct the prosecution in the Magistrate’s Court and can engage a counsel to do the needful on his behalf, and that when permission is sought to conduct the prosecution by a private person, it is open to the court to consider his request. It was observed that in that case, the Court had stated that the court has to form an opinion that cause of justice would be best subserved and it is better to grant such permission, and, it would generally grant such permission.
Recently, in the case of Amir Hamza Shaikh v. State Of Maharashtra, (2019) 8 SCC 387, the Supreme Court further clarified this issue by observing that though the Magistrate is not bound to grant permission at the mere asking but the victim has a right to assist the court in a trial before the Magistrate. The Magistrate may consider as to whether the victim is in a position to assist the court and as to whether the trial does not involve such complexities which cannot be handled by the victim. On satisfaction of such facts, the Magistrate would be within his jurisdiction to grant permission to the victim to take over the inquiry of the pendency before the Magistrate.
To conclude, in a case before a Magistrate court, the victim / complainant can be permitted by the court to engage his private lawyer to conduct the prosecution. But, in a trial before the Sessions Court, the private lawyer engaged by the victim / complainant can only assist the Public Prosecutor and act only as per the directions of the latter.
what happens if the victim/respondent not engaging a private counsel to assist the prosecution. Is it mandatory to give vakalatnama? Are my chances decreased if I failed to engage a private lawyer at High Court to attend a quash petition? Kindly suggest.