Legal Provisions of Section 302 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Permission to conduct prosecution:
The section commands that no person other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor is entitled to conduct a prosecution without the permission of the Magistrate.
Thus a private person’s or complainant’s Advocate has no right to conduct the prosecution without the permission of the Magistrate. A police officer even if he is not below the rank of an Inspector shall not be permitted to conduct the prosecution if he has taken part in the investigation into the offence for which the accused is being tried.
Where the investigating officer conducts the proceedings without the permission of the Magistrate, it amounts to an illegality which is not curable under Section 465 of the Code.
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In the case of Rashida Kamaluddin Syed v. Seikh Saheblal Mardan the question for decision before the Apex Court was whether permission to continue prosecution be granted to legal heirs of the deceased complainant. In this case, there was complaint against the appellant for offence punishable under Sections 406 and 420 of I.P.C.
The complainant died pending trial. The sons of the deceased filed application for permitting them to continue prosecution which was allowed and became final. But the application for discharge filed by the appellants only on the ground that no prima facie case was made out against them was dismissed. Held, the permission granted to the heirs (sons) of the deceased complainant was not illegal and there could be no interference under Article 136 of the Constitution. It was further held that the jurisdiction of criminal Court could not be ousted for mere pendency of civil suit.
Sub-section (2) provides that any person conducting the prosecution may do so personally or by a pleader.