- (1.) P. P. Gupta, J. This is an application on behalf of the accused-applicants under Section 482 of the Code of Criminal Procedure (hereinafter referred to as'code'), for setting aside the order dated 7-2-1992 passed by M. M. Ill, Oovind Nagar, Kanpur Nagar in Case No. 466 of 1987, State V. K. C. Bhattacharya and others.
(2.) THE applicants are accused under Section 498, IPC in the aforesaid Case No. 466 of 1987. This caae was being conducted by the Assistant Public Prosecutor on behalf of the State. After the close of examination-in-chief of the defence witnesses, an application purporting to be under Section 301/302 of the Code was moved on behalf of the complainant-opposite party No. 2 seeking permission to cross- examine the defence witnesses by the complainant's private counsel. THE A. P. P. conducting the case permitted the private counsel to do so. It was, however, objected to by the applicants who filed objections to the said application on 30-1-1992. After hearing the learned Counsel for both the parties and the learned A. P. P. , the learned Magistrate permitted the private counsel engaged by the complainant to act on behalf of the prosecution and to cross-examine the defence witnesses. This order dated 7th February, 1992 passed by the learned Magistrate has been challenged by the accused- applicants in this application. I have heard the learned Counsel for the parties and have perused the record of the case also. Section 301 (1) of the Code provides that the Public Prosecutor or Assistant Public Prosecutor incharge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. Sub-section (2) of Section 301 provides that the Public Prosecutor or Assistant Public Prosecutor incharge of the case sha. l conduct the prosecution and the pleader engaged by a private person shall act under the directions of the Public Prosecutor or the Assistant Public Prosecutor and may with the permission of the court, submit written arguments after the evidence is closed in the case.
(3.) PLACING reliance on a decision of the Lucknow Bench of this Court in the case of Hargovind Mtira v. State of U. P. and ano'her, 1982 AU 895, the learned Counsel for the applicants argued that complainant's private counsel could only assist the Public Prosecutor but he could not be allowed to personally conduct the case. In the case cited above, an application was moved by the com plainant who had engaged a private counsel for a direction to the A. P. P. to produce case diary in court and foi giving the same to the private counsel to assist the prosecution to lead the evidence in Court. While rejecting this prayer, the Court held that piivate counsel could not be allowed to personally conduct the case. It was, therefore, submitted by the learned Counsel for the applicants that in view of the law laid down in this case, the private counsel cannot be permitted to cross-examine the defence witnesses.;