JUDGMENT C.M. Cuttal, J.- The petitioner is the Original Complainant in Criminal Case No. 1091 88 in which the Respondent No. 3, the husband of the petitioner, and the Respondents Nos. 2, 4 and 5 face prosecution upon a report by the police dated 26-7-1988 for the offences under Sections 498-A, 323, 504, 506 read with Section 34 of the Indian Penal Code. The petitioner made an application to the Judicial Magistrate, First Class, Court No. 6, Pune, for permission to conduct the prosecution through an advocate other own choice. The application made under, Section 302 of the Code of Criminal Procedure was rejected by the learned Magistrate on 31-3-1989. Criminal Revision Application No. 168 of 1989 challenging the Magistrate's order was rejected by the learned Sessions Judge, Pune, on 8-9-1989. The petitioner invokes this Court's power under Section 482 of the Code of Criminal Procedure and seeks an order that may be permitted to prosecute the case through her own advocate. 2. Certain provisions of the Code of Criminal Procedure, 1973- hereinafter referred to as "the Code"- in regard to the prosecution by a person other than the Assistant Public Prosecutor or the Public Prosecutor appointed by the State may be considered. The code created a new office of the Assistant Public Prosecutor for the Courts of Magistrates in the place of Public Prosecutors who prosecuted the cases prior to the enactment of the Code (Section 25 of the Code). It is only where "no Assistant Public Prosecutor is available for the purposes of any particular case", that any other person may be appointed as the Assistant Public Prosecutor in charge of that case (Section 25(3) of the Code). In the cases before the Court of Sessions, the prosecution shall be conducted by the Public Prosecutors (Section 225 of the Code) The Assistant Public Prosecutor in charge of the case before the Magistrate may appear and plead, without any written authority (Section 301 (1) of the Code). However any private person may instruct a pleader to prosecute, my person. But the Assistant Public Prosecutor in charge of the case shall conduct the prosecution (Section 301(1) of the Code). The pleader intruded by a private person shall act therein "under the directions of the Assistant Public Prosecutor" (Section 301(2) of the Code). However any private person may instruct a pleader to prosecute, my person. But the Assistant Public Prosecutor in charge of the case shall conduct the prosecution (Section 301(1) of the Code). The pleader intruded by a private person shall act therein "under the directions of the Assistant Public Prosecutor" (Section 301(2) of the Code). However, such pleader may "with the permission of the Court submit written arguments "after the evidence is closed" (Section 301 (2) of the Code) Section 302 of the Code on which this application is based empowers any Magistrate inquiring into or trying a case to permit the prosecution to he conducted by any person other than a police officer below the rank of Inspector. 3. The question is whether as Magistrate trying a case instituted on a police report may permit the Complainant to conduct the prosecution through a pleader chosen by her. 4. The creation of the prosecuting machinery for the Courts of Magistrates envisages that the State is in charge of the prosecution which it, conducts through the Assistant Public Prosecutors appointed under Section 25 of the Act. As already stated, this is a new section enacted to entrust the charge of the prosecution before the Magistrate only to the Assistant Public Prosecutors. The prosecution of a case instituted on a police report by an advocate chosen by the Complainant is unknown to the Code. Sub-section (2) of Section 301, which entitles the Assistant Public Prosecutor to conduct the prosecution and has deliberately employed the words "Assistant Public Prosecutor in charge of a case" thereby meaning that the Assistant Public Prosecutor shall be in charge of the case. It has been held that it is the duty if the Assistant Public Prosecutor to conduct the prosecution (State v. Bhim Singh1). The distinction between a case which commences on a police report and one commencing on a private complaint should not be lost sight of. It has been held that it is the duty if the Assistant Public Prosecutor to conduct the prosecution (State v. Bhim Singh1). The distinction between a case which commences on a police report and one commencing on a private complaint should not be lost sight of. However, by reason of Section 210 of the Code of Criminal Procedure, 1973, the distinction between a case instituted on a private complaint and a case instituted on a police report bas been so obliterated that even where a has commenced upon a private complaint but police also make a parallel enquiry and a report under Section 173 of the Code, the Magistrate "shall inquire into or try together a complaint case or a case arising out of a police report as if 'both the cases were instituted on a police report" Section 210 (2) of the Code: 210(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. This provision reiterates the State's primacy in the prosecution of suspected criminals and relegates a private complaint and therefore the advocate instructed by him to an inferior position. The position of the Assistant Public Prosecutor imposes on him a duty to prosecute. This is the fundamental rule in all prosecutions instituted on a report made under Section 173 of the Code. It is the Assistant Public Prosecutor alone who can prosecute for the simple reason that the case is not a private case but is a case in which the state is interested - State v. Bhim Sing, (supra). 5. Vivnan Bose J. while upholding the principle that no person other than those mentioned in Section 301 of the Code should be allowed to conduct the prosecution commenced on a police report, captured the rationale of the rule (Kartikram v. Emperior2). The Assistant Public prosecutor who is expected to be objective in his policy in the conduct of the case. pursues the interest of the State. The Complainant, if allowed to prosecute, may serve his own private end. The Assistant Public prosecutor who is expected to be objective in his policy in the conduct of the case. pursues the interest of the State. The Complainant, if allowed to prosecute, may serve his own private end. The private prejudices and passions should be allowed to enter into the conduct of a criminal trial, Kartikram v. Emperor (supra), Vivnan Bose J: "The interest of the Crown and the complainant are not always the same. Private parties often wish to serve their own private ends and criminal proceedings are not primarily designed for that. It would be unfortunate to allow private persons passions and prejudices to creep into the conduct of a criminal trial, when it can be, avoided. It would be even more undesirable to leave the matter into two sets of hands with a possible conflict of interest undesirable generally from the broad view point of public policy, undesirable also because it would be unfair to the accused". 6. Notwithstanding the principles stated in the: last paragraph, Section 301(2) of the Code does envisage that a complainant may "instruct" his own pleader to prosecute the accused. This provision was placed in perspective by the Punjab and Haryana High Court in Kuldip Singh v. State of Haryana.3 The Application under Section 301(2) of the Code by Kuldip Singh participate in the prosecution personally or through counsel was rejected. The Punjab Haryana High Court held that the Court does not come in the picture in the matter of engaging a private pleader, as long as such pleader acts under the directions of the Assistant Public Prosecutor who alone can conduct the prosecution. An application to the Court and therefore the Court's permission become relevant only if such pleader wishes to tender written submissions. The implication of this view is that an application to the Court for permission to prosecute a case independently of the Assistant Public Prosecutor is incompetent. In Anthony D'souza v. Mrs. Radhabai Brij Ratan Mohatta4 this Court too held that permission to prosecute a case through a private advocate is outside the scope of Section 301(2) of the Code. At the stage at which any private person "instructs" a pleader to prosecute, the Court does not come in the picture. The statute enjoins that such private pleader shall act under the directions of the Assistant Public Prosecutor. At the stage at which any private person "instructs" a pleader to prosecute, the Court does not come in the picture. The statute enjoins that such private pleader shall act under the directions of the Assistant Public Prosecutor. No words suggesting that the Court's permission is required for acting under such directions have been employed by the Parliament. No doubt, sub-section (2) of Section 301 enjoins that the pleader engaged by a private party "shall act" under the directions of the Assistant Public Prosecutor. The word "act" may include the conduct of examination-in-chief and cross-examination. But does it entitle such a pleader to "act" independently of the Assistant Public Prosecutor? It is the primary function of the State to ensure public peace. That is why the Code lays down that the State as the custodian of public peace shall alone prosecute. For this purpose, the State created the Office of the Assistant Public Prosecutor for the Courts of the Magistrate. This basic power of the State admits of two exceptions: (i) In cases where the Assistant Public Prosecutor is not available, a private pleader may be appointed by the State to prosecute a specified case (Section 25(3) of the Code). (ii) Where the Assistant Public Prosecutor is available but a Complainant desires to "instruct" a private pleader, the may do so for a limited purpose, (Section 301(2) of the Code). It follows from (i) above that the alternative to an Assistant Public Prosecutor is a pleader appointed by the State under Section 25(3) of the Code and not a pleader chosen by a private party. The limits of the authority of such private pleader referred to at (ii) above are reflected in the words chosen by the Parliament. The words of the statute are "the pleader so instructed shall act therein under the directions of the............. Assistant Public Prosecutor" (Section 301(2) of the Code) (emphasis supplied). He cannot, therefore, act independently of the Assistant Public Prosecutor. The participation of the private advocate in the prosecution is of necessity, a subordinate activity. He "acts" as directed by the Assistant Public Prosecutor. He can never be given independent charge of the prosecution without violating the law. The primacy of the Assistant Public Prosecutor and the inferior role of the private advocate have been upheld by the Gujarat High Court in Naranbhai Sadabhai Parmar ors. He "acts" as directed by the Assistant Public Prosecutor. He can never be given independent charge of the prosecution without violating the law. The primacy of the Assistant Public Prosecutor and the inferior role of the private advocate have been upheld by the Gujarat High Court in Naranbhai Sadabhai Parmar ors. v. Barot Nandlal Khodidas anr.5 where is has been held that Complainant has no right to conduct the prosecution except in accordance with the directions of the Prosecutor appointed by the State. 7. Although Section 301 of the Code requires the advocate instructed by a private party to act under the directions of the Assistant Public Prosecutor, Section 302 empowers a Magistrate to "permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector". The question then is if a Magistrate has been given the power to permit the conduct of a prosecution by any person, personally or by a pleader, how is this power to be reconciled with the subordinate role of a pleader instructed by a private party. Again Section 301 employs the word "act" which includes examination and cross-examination of witnesses, choosing the order of witnesses and so on. Having regard to the inferior role of a private advocate and his subjection to the directions of the Asstt. Public Prosecutor, I hold that the word "act" occurring in Section 301(2) is used in a restricted sense to mean that he may act only under the directions of Assistant Public: Prosecutor. Section 301(2) which enables a 'pleader instructed by a private party to "act" means that he shall not act except in accordance with such directions. 8. Ashwin Nanubhai Vyas v. The State of Maharashtra anr.6, was a case in which Section 302 was invoked to enable the Complainant's mother to "conduct" the prosecution upon the death of the Complainant during the pendency of the case. The word "conduct" was construed to mean "carry on the prosecution" by herself or through a pleader. In Ashwin Nanubhai Vyas case (supra), the question was whether upon the death of a Complainant, the complaint abates. The question whether the complainant could prosecute the case through an advocate of her choice independently of the control of the Assistant Public Prosecutor did not arise for consideration. In Ashwin Nanubhai Vyas case (supra), the question was whether upon the death of a Complainant, the complaint abates. The question whether the complainant could prosecute the case through an advocate of her choice independently of the control of the Assistant Public Prosecutor did not arise for consideration. The judgment does not lay down that even where there is Assistant Public Prosecutor able to proceed with a case, a Magistrate may permit an advocate chosen by a Complainant to act without the direction of the Assistant Public Prosecutor. The Supreme Court construed the word "conduct" to mean continuation of the case with a view to avoiding abatement of the complaint. Roop K. Shorey. Film Producer. Bombay v. The State7, was another case cited by learned Counsel for the petitioner. The Complainant was represented by an advocate by name R.L. Anand who conducted the examination-in-chief of the first witness. while the Public Prosecutor remained present by his side. The question as to whether R.L. Anand was appointed to conduct the prosecution independently of the Public Prosecutor who was undoubtedly present did not arise for consideration. The accusation made by the accused was that leading question were asked by R.L. Anand and the Public Prosecutor remained as a silent spectator implying thereby that the Public Prosecutor abdicated his statutory duty. The subordinate role of a pleader appointed by a private party was accepted by the Punjab High Court. It observes: "Applying these principles I ant of the opinion that so long as the Public Prosecutor does not abdicate his functions and retains with himself control over the proceedings, a private counsel can examine or cross-examine the witnesses or even address arguments". This view is consistent with Sections 301 and 302 of the Code. But the difficulty arises because the Court proceeded to observe: "It follows, therefore, that if a private counsel is to be given a complete charge of the prosecution case so that the can conduct the case independently of the Public Prosecutor a permission is necessary. So long as a private counsel acts under the guidance and control of the Public Prosecutor he is entitled to so act under Section 493 of the Criminal Procedure Code". The underlined words in the above passage appear to imply that the Court is empowered to permit a private pleader to prosecute a case independently of the Public Prosecutor. So long as a private counsel acts under the guidance and control of the Public Prosecutor he is entitled to so act under Section 493 of the Criminal Procedure Code". The underlined words in the above passage appear to imply that the Court is empowered to permit a private pleader to prosecute a case independently of the Public Prosecutor. However, a close look at the word') of Section 301(2) reveals these elements: (i) A private person may instruct a pleader to prosecute, (ii) The Assistant Public Prosecutor shall conduct the prosecution. (iii) The pleader appointed by the private person shall act under the directions of the Assistant Public Prosecutor. The legislature has not said "the pleader instructed by the private party shall conduct the prosecution". The word') used in sub-section (2) of Section 301 are……………." the Assistant Public Prosecutor shall conduct the prosecution……………..". The question of the conduct of the prosecution arises in the context of the cases in which "any private person instruct') a pleader". The Assistant Public Prosecutor derives his authority to prosecute independently of sub-section (2) of Section 301 because Sub-section (1) of Section 301 and sub-section (1) of Section 302 empower him to prosecute without the permission of the Court. It follows that the legislature balanced the right of a pleader chosen by a private party to represent his client with the public character of the concept of prosecution. The result is that while a pleader instructed by a private person may act, he shall not conduct the prosecution but may act under the directions of the Assistant Public Prosecutor. In my opinion, the legislative intent is to keep the Assistant Public Prosecutor in charge and control of the prosecution and permit the pleader instructed by a private person to act as directed by the Assistant Public Prosecutor. The legislature has employed the words “………….the Assistant Public Prosecutor................ shall conduct the prosecution” and designedly omitted the words "the pleader instructed by the private party shall conduct the prosecution". The deliberate omission of the words which have the effect of enabling a pleader instructed by a private person to conduct the prosecution to the exclusion of the Assistant Public Prosecutor appointed by the State clearly means that what is designedly omitted cannot be read as part of the statute. The deliberate omission of the words which have the effect of enabling a pleader instructed by a private person to conduct the prosecution to the exclusion of the Assistant Public Prosecutor appointed by the State clearly means that what is designedly omitted cannot be read as part of the statute. What is omitted by the legislature is clearly inconsistent with the actual language of Sections 301 and 302 which directs that "the Assistant Public Prosecutor shall conduct the prosecution". With respect, the observations in Roop K. Shorey implying that Court may permit a private Counsel to conduct the prosecution do not accord with the legislative intent. 9. Kiker Karol v. Satyanarayana Murthy and ors.8, a judgment of the Andhra Pradesh High Court was also relied upon by Counsel for the Petitioner. The accused were police officers. The Complainant apprehended that the Assistant Public Prosecutor may not "feel himself free to conduct the prosecution against Respondents". The Andhra Pradesh High Court reversed the Order of the Trial Magistrate and permitted the Complainant to conduct the prosecution through his own advocate. The reason was: "any trial has to give sense of satisfaction to the party aggrieved". I am unable to accept this view. The statute has clearly enacted that it is the Assistant Public Prosecutor who alone shall conduct the prosecution. In order to keep the prosecuting machinery in the Courts of Magistrates free from the police department and to ensure that it act independently and objectively, the Parliament pursuant to the recommendation of the Law Commission created the office of the Assistant Public Prosecutor. It is not possible to construe the legislative provisions with reference to apprehension that an individual may entertain. If the statute says that the Assistant Public Prosecutor shall conduct the prosecution, the Magistrate has no power to permit any other advocate to do so. 10. It is unnecessary to speculate upon the situations in which the Assistant Public Prosecutor is not impartial or has colluded with the accused. The fact remains that on a true construction of the statute, the Magistrate in exercise of his authority under Section 302 of the Code cannot permit a private advocate to conduct the prosecution. There may be cases in which the Assistant Public Prosecutor does not prosecute faithfully. In such cases the ends of justice may demand that another advocate should conduct the prosecution. There may be cases in which the Assistant Public Prosecutor does not prosecute faithfully. In such cases the ends of justice may demand that another advocate should conduct the prosecution. It is for such exceptional cases that the inherent powers of the High Court have been saved. This is not a case in which this Court should step in to permit a private advocate to conduct the prosecution. 11. The allegation of the petitioner is that the learned Magistrate issued bailable warrants to secure her presence and also that of her father as witness. Then she says that the Assistant Public Prosecutor had not given "the Petitioner and her witnesses any confidence to face the trial". These averments in the petition which invokes inherent jurisdiction of this Court do not suggest that the learned Assistant Public Prosecutor has abdicated his function or has been unfaithful to the prosecution. This is not a case in which this Court should interfere and permit a private advocate to conduct the prosecution. 12. For all these reasons, the petition is rejected. Rule discharged with costs. Petition rejected. 1. 1978 Cri. L.J. 1041 (Himachal Pradesh). 3. 1980 Cri. L.J. 1159. 4. 1984 (1) B.C.R. 157 Paragraphs 24 and 30. 5. XXIV (1) 1983 Guj. Law Reporter 522. 6. 1967 Mall. Law Journal 3t2. 7. 1967 Cri. L.J. 251 A.I.R. 1967 Pujah 42. 8. 1984 Cri. L.J. 344.