Full Judgment Text
NEUTRAL CITATION NO. 2026:MPHC-GWL:14962
1 CRR-1874-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE PUSHPENDRA YADAV
th
ON THE 6 OF MAY, 2026
CRIMINAL REVISION No. 1874 of 2026
VIJAY SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Abhay Jain - Advocate for the petitioner.
Shri Deependra Singh Kushwah - Additional Advocate General for
respondent No.1/State.
ORDER
Per: Justice Pushpendra Yadav
The present revision has been filed under section 438 read with
section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity
"BNSS") challenging the order dated 10.02.2026 passed by the Special
Court (Prevention of Corruption Act), Shivpuri, in case No.SC97/2025,
whereby an application (I.A.No.2/2026) filed by the petitioner under Section
338(2) of BNSS has been rejected.
2 The brief facts of the case are that on 21.07.2025 21 elected
councillors of the Municipal Council, Shivpuri, made a written
representation to the District Collector, Shivpuri, regarding the condition of
roads, non-existence of work as shown completed in the official records and
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 5/8/2026
6:34:38 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:14962
2 CRR-1874-2026
suspected irregularities in the use of municipal funds. On receiving the said
representation, the District Collector directed the Sub-Divisional Magistrate,
Sub-Division, Shivpuri, to conduct a detailed inquiry. After conducting the
enquiry, the SDM submitted an enquiry report to the District Collector on
25-07-2025. In pursuance to the said enquiry report, under the direction of
the District Collector, Shivpuri, FIR No. 504/2025 was registered at police
station, Kotwali, Shivpuri, against Jitendra Parihar (Sub-Engineer), Satish
Nigam (Assistant Engineer) and Arpit Sharma (Contractor of M/s. Shivam
Construction) for the offence punishable under Sections 318(4), 316(5),
61(2), 337, 338, 336(3), 340(2) of BNS and Sections 8 & 12 of the
Prevention of Corruption Act, 1988. After completion of investigation,
charge-sheet was filed under Sections 318(4), 316(5), 61(2), 338, 336(3),
340(2) of BNS and Sections 13(1)(A), 8 of the Prevention of Corruption Act.
At the time of framing of charge, the petitioner filed an application under
Section 338 of BNSS to assist the prosecution. The said application has been
rejected by the impugned order. Hence, the present revision.
3 The learned counsel for the petitioner submits the learned trial court
has erred in rejecting the application filed by the petitioner solely on the
ground that he does not fall within the category of a victim, thereby
disentitling him from assisting the prosecution without appreciating that
petitioner was the complainant whose representation led to initiation of
enquiry and registration of FIR. The learned counsel for the petitioner further
urged that present case relates with the misuse of public funds and corruption
in the Municipal Council, Shivpuri, and the petitioner being elected
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 5/8/2026
6:34:38 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:14962
3 CRR-1874-2026
Councillor, represents the interest of residents of Shivpuri, therefore, he is
not an outsider but the original complainant. To bolster his submission,
learned counsel for the petitioner has relied upon the judgment of the Hon'ble
Supreme Court in the case of Puran v. Rambilas, (2001) 6 SCC 338 and
R.Rathinam v. State, (2000) 2 SCC 391 .
4 Per contra, learned counsel for the State supported the impugned
order and submits that only the Public Prosecutor can conduct the sessions
trial. Therefore, the application filed by the petitioner has rightly been
rejected by the learned Court below.
5 Heard learned counsel for the parties and perused the enclosed
documents.
6 Before dealing with the rival submissions, it would be profitable to
consider the relevant provisions of BNSS. Sections 248 and 338 of BNSS are
as follows:-
"248. Trial to be conducted by Public Prosecutor. —In every
trial before a Court of Session, the prosecution shall be
conducted by a Public Prosecutor.
338. 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 his
advocate 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 advocate 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."
Emphasis supplied
7 Plain reading of these provisions leave no iota of doubt that a Public
Prosecutor is entrusted with the responsibility of conducting prosecution case
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 5/8/2026
6:34:38 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:14962
4 CRR-1874-2026
and role of the counsel for the private person is only to the extent of
submitting written argument after the evidence is closed in the case under the
instructions of Public Prosecutor with permission of Court. The right of a
private individual to patriciate in the prosecution of a sessions trial is
restricted and the prosecution is subject to the control of the Public
Prosecutor. Section 248 mandates that prosecution be conducted by the
Public Prosecutor and in view of Section 338 (2) of BNSS permission can be
given to the private person to the extent of submitting written arguments
after the evidence is closed in the case.
8 In the considered opinion of this Court, the aforesaid provisions do
not permit the counsel of private person to make oral arguments and cross-
examine the witnesses. He can only file written arguments under the
instructions of Public Prosecutor with the permission of the Court but only
after closing of the evidence in the case. In the present case, the petitioner
has filed an application under Section 338(2) of BNSS at the stage of
framing of charge, therefore, looking to the provisions of Section 248 read
with Section 338(2) of BNSS, at this stage, we do not find any illegality in
the order passed by the learned Court below.
9 So far as the contention of learned counsel for the petitioner that he
was the elected councillor and on his representation enquiry was conducted
which led to registration of FIR, therefore, the learned trial Court has erred in
not treating him as a victim, is concerned, the Hon'ble Supreme Court in the
case of Rekha Murarka vs. The State of West Bengal and Anr., (2020) 2
SCC 474 considering the corresponding provisions of Sections 24, 225 and
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 5/8/2026
6:34:38 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:14962
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301 of Cr.P.C. dealt with the issue of extent to which a victim's counsel can
participate in the prosecution of a case. The relevant paras of the judgment
are as under : -
"11. In light of this, we now proceed to consider the extent
to which such assistance can be accorded. As mentioned
supra, learned Senior Counsel for the Appellant has argued
that there may be instances where the Public Prosecutor may
fail to perform his functions properly, whether deliberately or
due to oversight, which may obstruct justice instead of
furthering it. To meet the ends of justice in such cases, he
submitted that the role of the victim’s counsel should not
be limited to filing of written arguments as
provided with respect to pleaders engaged by private
parties under Section 301(2). Instead, it should extend
to making oral arguments and examining witnesses as well.
On a perusal of the arguments advanced and the decisions
relied on by both the parties, we find that such a broad
mandate for the victim’s counsel cannot be given effect, as it
is not rooted in the text of the Cr.PC."
1 0 The judgments relied upon by the petitioner are related with the
cancellation of bail, therefore, looking to the peculiar facts and
circumstances of the case, the same are distinguishable and are not of much
assistance to the petitioner in the present case.
11 In view of the foregoing discussion, we do not find any illegality,
perversity or impropriety in the impugned order warranting any interference.
Consequently, this revision sans merits and is hereby dismissed.
(G. S. AHLUWALIA)
(PUSHPENDRA YADAV)
JUDGE
JUDGE
ms/-
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 5/8/2026
6:34:38 PM