Section 301 of Cr.P.C
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.
As is clear from the above while Sub-section (1) stipulates that the Public Prosecutor or-Assistant Public Prosecutor is competent to appear and plead without any written authority, what Sub-section (2) enables is assistance to the Assistant Public Prosecutor by another counsel of the party’s choice. However, as clear from the Section itself, what is important in this regard is the grant of permission by the Court. Even if the permission is granted, the role of the said counsel allowed to assist the Assistant Public Prosecutor is very much limited. The rein is still held by the Public Prosecutor. If the Court so permits, the assisting counsel can submit written arguments after the evidence is closed in the case. That is all. The Section does not envisage any other authority or independent power for the counsel who is engaged to assist the Assistant Public Prosecutor. In other words, even after permission is granted for rendering assistance under Section 301 (2) of the Cr.P.C. the responsibility for conduct of the prosecution continues to be with the Assistant Public Prosecutor. It naturally follows that he is the person who is to decide how the prosecution should proceed and whether recall of any witness under Section 311 is necessary. According to me, the right to file an application under Section 311 in a case where the Court grants permission under Section 301(1) of the Cr. P.C. is available only to the Assistant Public Prosecutor and not to the counsel who is allowed to assist the Assistant Public Prosecutor.’
The proper course would have been for the first respondent/de facto complainant to have moved an application to assist the prosecution in keeping with Section 301 Cr.P.C. Learned senior counsel submitted that even when such course is adopted, it would not be open to first respondent/de facto complainant to move any petition u/s.319 Cr.P.C. on her own. Amidst several decisions, learned senior counsel referred to decisions of the Apex Court in Brindaban Das and others v. State of West Bengal [2009 (13) SCC 329] and Hardeep Singh and others v. State of Punjab and others [2014 (3) SCC 92]. Touching upon the decision in K.Anbazhagan v. Selvi J Jayalalitha and another [2015 (6) SCC 156] wherein the Apex Court found no merits in an interlocutory application seeking intervention in pending appeals of accused towards assisting the Special Public Prosecutor, learned senior counsel also referred to judgment of the High Court of Kerala in reported in 2001 Crl. LJ 4370. [Murugesan vs Malathi [MHC]-26/07/2017]