Bombay High Court
Tanuja Madhav Biradar vs The State Of Maharashtra on 11 August, 2025
2025:BHC-AUG:21893
(1) crwp2084.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
36 CRIMINAL WRIT PETITION NO. 2084 OF 2024
TANUJA MADHAV BIRADAR
VERSUS
THE STATE OF MAHARASHTRA
Mr. Poonam V. Bodke Patil, Advocate for the petitioner.
Mr. R.B. Dhaware, APP for the respondent-State.
CORAM : KISHORE C. SANT, J.
DATE : 11.08.2025
PC :-
01. Heard learned Advocates for the parties for sometime. The
petitioner happens to be an informant on the basis of whose information,
crime was registered for the offences punishable under sections 354,
452, 294, 323, 506 r/w section 34 of the Indian Penal Code. On the
basis of the crime and the investigation, charge-sheet came to be filed.
After filing of the charge-sheet, case is numbered as RCC No. 140 of
2018. In the said case, the informant filed application below Exh.19,
seeking permission of the learned JMFC to conduct case through an
Advocate appointed by the complainant. The application was filed under
sections 302(1) and (2) of the Cr.P.C. It is contention of the petitioner
that the prosecution is not being effectively conducted by the prosecutor.
For last 5 years, no charges were framed as the accused remained
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absent. Still no steps were taken by the learned prosecutor to secure
attendance of the accused, who are on bail. Ultimately, the charges were
framed on 15.12.2023. There is undue delay in the trial. Since the trial
is not being expeditiously conducted, she apprehends prejudice.
02. The learned JMFC rejected the application observing that if at
all the petitioner wants to engage special prosecutor, she has to follow
the provisions of Section 24 of the Cr.P.C. The learned Advocate
vehemently submitted that the Trial Court has committed mistake in not
making distinction between the provisions of sections 301 and 302 of the
Cr.P.C. Section 24 is required mainly under Sessions cases. So far as
section 302 of the Cr.P.C. is concerned, it is the Magistrate, who has the
power to grant permission to conduct prosecution through private lawyer
of the choice of the informant or the victim, as the case may be. In
support of her submissions, she relied upon judgment passed by this
Court in Cr. Writ Petition No. 1203 of 2021 (Aurangabad) dated
07.12.2021 in the case of Dr. Anuja Satyajit Nighute Vs. State of
Maharashtra. In the said case, this Court relied upon judgment in the
case of Dilnashin Shaikh w/o. Amir Hamza Shaikh Vs. The State of
Maharashtra in Cri. W.P. No. 4939 of 2018 (Bombay). In the said case,
this Court has made distinction between section 301 and 302 of the
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Cr.P.C. It is held that section 302 of the Cr.P.C. gives Magistrate a power
to grant permission to conduct prosecution by any person if application is
made by such party. This Court held that there is no limitation on the
power of the Magistrate to grant such a permission.
03. Learned Advocate for the petitioner fairly points out that the
judgment in the case of Dalnashin Shaikh (supra) was carried to the
Hon'ble Supreme Court by Amir Hamza Shaikh, wherein the Hon'ble
Supreme Court has though, upheld the order passed by this Court in the
Writ Petition has observed in para 15 and 16 that though the Magistrate
is not bound to grant permission at mere asking but the victim has a
right to assist the Court in a trial before the Magistrate. The Magistrate
need to 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. In that case the victim herself
wanted to prosecute the trial and it is only on that count, the order
passed by the High Court was set aside, but with observation and the
matter was remanded back to the learned Magistrate to consider as to
whether complainant should be granted permission to prosecute offence
under section 498-A and 406 r/w 34 of the Indian Penal Code.
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04. The learned APP vehemently opposes the petition. He
submits that merely because there is delay, there is no reason to allow
the complainant to conduct the prosecution by engaging a private lawyer.
In the present case he submits that charge-sheet was filed on
26.06.2018. Thereafter, there was Covid pandemic and for about 2 years
Covid pandemic situation continued and it is for that reason the accused
could not be produced in the Court and the charges could not be framed.
It cannot be said that there is lethargy on the part of concerned
prosecutor.
05. This Court finds that in the present matter, it is sufficiently
shown by the applicant that for five years, no charges were framed. The
learned Advocate for the petitioner is justified in making submission that
in the present case for five years the charges are not framed due to
lethargic approach of the APP.
06. This Court has considered arguments and judgments cited
above. This Court finds that the learned Magistrate in the present case
has considered the case keeping in mind section 301 of the Cr.P.C.,
whereas the case was under section 302 of the Cr.P.C. Sufficient reason
is shown to engage a private lawyer to conduct prosecution. It is,
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therefore, this Court finds that present petition deserves to be allowed.
07. Criminal Writ Petition is allowed. The impugned order dated
09.09.2024 is quashed and set aside. The petitioner is permitted to
engage a private lawyer to conduct prosecution of RCC No. 140 of 2019
pending before the Court of learned JMFC, Udgir.
[KISHORE C. SANT, J.]
snk/2025/Aug25/crwp2084.24
