A single judge of Madras High Court held as follows,

From Paras 5 and 6,

5. The Hon’ble Supreme Court of India in Shiv Kumar Vs. Hukam Chand and Another3, after considering the nature of Sections 301 and 302 of the Code of Criminal Procedure, categorically held that a reading of the Sections 301 and 302 of the Code of Criminal Procedure, it would be clear that Section 302 of the Code of Criminal Procedure would be applicable for the Magistrate Court and Section 301 of the Code of Criminal Procedure will be applicable only for the other Courts. It is useful to extract the paragraph No.12 of the said judgment, which reads as follows:-
“ 12. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined to Magistrate Courts, this particular section is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from employment of the words “any court” in Section 301. In view of the provision made in the succeeding section as for Magistrate Courts the insistence contained in Section 301(2) must be understood as applicable to all other courts without any exception.”
Therefore, the entire reasoning, which is based on Section 301 of the Code of Criminal Procedure, is unsustainable as it is not applicable to the Magistrate Courts.
6. Secondly, the passage extracted by the learned Magistrate from the judgment of Rekha Murarka Vs. The State of West Bengal (cited supra), which is reproduced hereunder, reads as follows:-
“12.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura 2014 SCC OnLine Tri 859 that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.”
(Emphasis supplied)
Thus, it may be seen that even in the said case, it has been held that the victim‘s learned Counsel cannot take the role of conducting the prosecution himself by examining the witnesses or making arguments, but, certainly, it would be within his right to bring it to the notice of the Court and if the learned Judge finds merits in any of the shortcomings complained, it is the Court which invokes its powers and acts accordingly. In the instant case also, P.W.1, victim, has filed an application bringing to the notice of the Court about the fact that certain specific charges are omitted to be framed, arising out of the self-same allegations, for which there need not be further investigation or additional evidence and therefore, it is for the Court to consider the same on merits. Therefore, on the mere reason that same is not emanating from the learned Public Prosecutor/Police, it cannot be thrown out. Therefore, the order of the learned Magistrate is unsustainable.

Citations:

Other Sources: