Supreme Court

Rekha Murarka Vs. The State of West Bengal and Ors.

MANU/SC/1600/2019

20.11.2019

Criminal

A victim's counsel cannot be given right to make oral arguments or examine and cross-examine witnesses

Present appeal arise out of judgment passed by the High Court of Calcutta in revisional application affirming the order passed by the Additional District and Sessions Judge, rejecting an application filed by the Appellant herein, the de facto Complainant in Sessions Case.

Vide the impugned judgment, the High Court affirmed the order of the Sessions Judge, discussing the crucial role played by the Public Prosecutor in a Sessions trial. Alluding to Section 225 of the Code of Criminal Procedure, 1973 (CrPC), it was held that the mandate therein that a Sessions trial shall be conducted by a Public Prosecutor is unequivocal and cannot be diluted by the proviso to Section 24(8) of CrPC, which allows the victim to engage a counsel to assist the prosecution. Drawing a distinction between assisting the prosecution and conducting it, the High Court took note of instances where allowing a free hand to the victim's counsel may hamper the prosecution's case and impact the fairness of the trial. In view of this, it was held that the request of the victim's counsel to cross-examine the defence witnesses after the Public Prosecutor could not be allowed. Hence, present appeal.

A Public Prosecutor is entrusted with the responsibility of conducting the prosecution of a case. This is a crucial role is evident from conditions such as in Section 24(7) of CrPC, which stipulates a minimum legal experience of seven years for a person to be eligible to be a Public Prosecutor. It is further clear from a joint reading of Section 301 of CrPC and the proviso to Section 24(8) of CrPC that, the two provisions are mutually complementary. There is no bar on the victim engaging a private counsel to assist the prosecution, subject to the permission of the Court.

The use of the term "assist" in the proviso to Section 24(8) of CrPC is crucial, and implies that the victim's counsel is only intended to have a secondary role qua the Public Prosecutor. A mandate that allows the victim's counsel to make oral arguments and cross-examine witnesses goes beyond a mere assistive role, and constitutes a parallel prosecution proceeding by itself. Given the primacy accorded to the Public Prosecutor in conducting a trial, as evident from Section 225 of CrPC and Section 301(2) of CrPC, permitting such a free hand would go against the scheme envisaged under the CrPC.

A victim's counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses. As stated in Section 301(2) of CrPC, the private party's pleader is subject to the directions of the Public Prosecutor. The same principle should apply to the victim's counsel under the proviso to Section 24(8) of CrPC, as it adequately ensures that the interests of the victim are represented. If the victim's counsel feels that, a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the CrPC, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim's counsel.

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. Tripura High Court in Smt. Uma Saha v. State of Tripura held that, 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.

The High Court was correct in dismissing the application made by the Appellant seeking permission for her counsel to cross-examine witnesses after the Public Prosecutor. However, in future, if the Sessions Judge finds that the assistance of a private counsel is necessary for the victim, he may permit it. The instant appeal is dismissed accordingly.

Tags : Prosecution Victim's counsel Participation

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