Can a police officer who has taken part in the investigation be permitted to conduct the prosecution?

Question: Can a police officer who has taken part in the investigation be permitted to conduct the prosecution?

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Answer

Section 302 in the Code of Criminal Procedure, 1973 lays down provisions regarding permission to conduct the prosecution. The provision runs as under:

“(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.”

The proviso attached to sub-section (1) of 302 CrPC provides that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

The proviso thus completely prohibits the Magistrate from granting any permission to the police officer to conduct prosecution if he has taken part in the investigation of the offence probably because of apprehension that such an officer is not likely to put before the Court the prosecution case as fairly as any other independent prosecutor.

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