Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1727 OF 2019
[Arising out of SLP (Crl.) No. 7848 of 2019]
Rekha Murarka .....Appellant
Versus
The State of West Bengal and Anr. .....Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
1. Leave granted.
2. This appeal arises out of judgment dated 29.07.2019 passed
by the Hon’ble High Court of Calcutta in revisional application
C.R.R. No. 2357 of 2018, affirming the order dated 25.07.2018
passed by the Additional District and Sessions Judge, Fast Track
Court, Calcutta rejecting an application filed by the Appellant
herein, the de facto Complainant in Sessions Case No. 43 of
2014.
Signature Not Verified
3. The brief facts giving rise to this appeal are as follows:
Digitally signed by
RAJNI MUKHI
Date: 2020.01.15
12:19:44 IST
Reason:
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3.1 The Appellant herein is the widow of one Gyan Prakash
Murarka (“the deceased”), who is alleged to have been stabbed
and murdered by Respondent No. 2 herein on 16.01.2014. The
Appellant is also said to have sustained serious injuries while
trying to save her husband. Bowbazar Police Station Case No. 19
of 2014 came to be registered against Respondent No. 2 and on
18.12.2015, charges was framed against him for the commission
of offences punishable under Sections 302 and 326 of the Indian
Penal Code, 1860. Respondent No. 2 pleaded not guilty and the
trial began before the Sessions Court.
3.2
While the evidence was being recorded, the Appellant
sought an expeditious trial of the case vide C.R.R. No. 833 of
2016, which was allowed on 09.03.2016. Subsequently, on
10.07.2018, she filed another application under Section 301 read
with the proviso to Section 24(8) of the Code of Criminal
Procedure, 1973 (“the CrPC”) praying for the following reliefs:
“(a) to advance oral argument in support of question of law
and fact only after the learned Public Prosecutor, if so
required;
(b) to raise objection in case any irrelevant question is put to
any prosecution witness, if so required;
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(c) to examine the prosecution witnesses only after the
learned Public Prosecutor, if so required;
(d) to crossexamine the defence witnesses, if adduced, only
after the learned Public Prosecutor, if so required;
(e) to assist the process of justice in accordance with law;
(f) pass such further or other order(s) and/or direction(s) as it
may deem fit and proper.”
3.3 Vide order dated 25.07.2018, the learned Additional
District and Sessions Judge, Fast Track Court, Calcutta rejected
the said prayer. This was done on the basis that the right of a
victim or private individual to participate in the prosecution of a
Sessions trial is restricted, and the prosecution is subject to the
control of the Public Prosecutor. It was observed that Section 301
of the CrPC does not have an overriding effect over Section 225,
which mandates that the prosecution be conducted by the Public
Prosecutor. However, in view of Section 301(2) of the CrPC, the
learned Judge gave permission to the de facto Complainant to
furnish written arguments after the completion of the arguments
of the prosecution.
3.4
This order was challenged before the Hon’ble High Court of
Calcutta in C.R.R. No. 2357 of 2018. Vide the impugned
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judgment dated 29.07.2019, 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 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), which
allows the victim to engage a counsel to assist the prosecution.
Drawing a distinction between the prosecution and
assisting
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. Accordingly, C.R.R. No. 2357 of 2018 was
dismissed. Hence, this appeal.
4. Learned Senior Counsel for the Appellant drew our attention
to the relevant provisions in the CrPC, i.e. Sections 301 and 302,
the proviso to Section 24(8) and Section 2(w)(a). He argued that
these provisions should be read together, and Section 301 should
not be read as a bar to Section 24(8) so as to limit the role of the
victim’s counsel to mere filing of written arguments. Alluding to
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the Report of the Malimath Committee on Reforms of Criminal
Justice System, 2003 and that of the Madhav Menon Committee
on Victim Orientation to Criminal Justice, 2007, he emphasized
how victims had been neglected in the criminal justice system.
He argued that the 2009 amendment introducing the proviso to
Section 24(8) to the CrPC was made in this context, so as to
account for instances where the Public Prosecutor may shirk his
responsibility or make an omission by oversight. Relying on the
decisions of several High Courts in Sathyavani Ponrani v.
. 2010 (2) MWN (Cr.) 273, v.
Samuel Raj & Ors Shankar State
of Karnataka & Ors . (2013) 2 AIR Kant R 265, Lokesh Singh
(2013) 83 ACC 379,
v. State of Uttar Pradesh Uma Saha v.
State of Tripura 2014 SCC OnLine Tri 859, Suneel Kumar
Singh v. State of Uttar Pradesh 2019 SCC OnLine All 957, and
(2017) 176 AIC
Khumukcham Nikita Devi v. State of Manipur
839, he argued that the role of the victim’s counsel should extend
to putting questions to victims, raising objections to irrelevant
questions put by the Public Prosecutor, and making oral
arguments in addition to those made by the Public Prosecutor.
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5. Per contra, learned Senior Counsel for Respondent No. 1,
the State of West Bengal, emphasized that a crucial role has been
envisaged for a Public Prosecutor under the scheme of the CrPC.
He submitted that the Public Prosecutor is an officer of the Court
and a minister of justice, as evident from the mandate placed
upon him under Section 225 of the CrPC to conduct a Sessions
trial. He argued that the role of such a person cannot be diluted
by allowing the victim’s counsel, who may be relatively
inexperienced at times, to conduct the prosecution with a free
hand. Further, he argued that the use of the words “ under this
subsection ” in the proviso to Section 24(8) implies that the
engagement of a victim’s counsel is only with respect to a Special
Public Prosecutor, which is the subject matter of Section 24(8),
and not beyond. As regards the Committee Reports mentioned
supra leading to the 2009 amendment, he submitted that the
replacement of the initially proposed phrase “ cooperate with the
prosecution ” in the proviso to Section 24(8) with “ assist the
prosecution ” indicates a deliberate intention to have a limited role
for the victim’s counsel. At the same time, acknowledging the
reasons for ensuring greater participation of the victim in the
prosecution, he submitted that the extent of the counsel’s
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assistance should be limited and subject to the permission of the
Public Prosecutor. In this regard, he relied on the decision of the
Tripura High Court in 2014
Uma Saha v. State of Tripura,
SCC OnLine Tri 859 and submitted that in instances where an
issue of importance is raised by the victim’s counsel, such as the
Public Prosecutor failing to examine or crossexamine a witness
properly, the victim’s counsel can suggest some questions to the
Court, which may then pose them to the witness, if deemed
necessary.
6. Heard learned Senior Counsel representing both the parties.
7.
In light of the arguments advanced, the main question to be
considered is the extent to which a victim’s counsel can
participate in the prosecution of a case. Since this is closely tied
with the role that is envisaged for the Public Prosecutor, we will
first deal with the same.
8. In our criminal justice system, the Public Prosecutor
occupies a position of great importance. Given that crimes are
treated as a wrong against the society as a whole, his role in the
administration of justice is crucial, as he is not just a
representative of the aggrieved person, but that of the State at
large. Though he is appointed by the Government, he is not a
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servant of the Government or the investigating agency. He is an
officer of the Court and his primary duty is to assist the Court in
arriving at the truth by putting forth all the relevant material on
behalf of the prosecution. While discharging these duties, he
must act in a manner that is fair to the Court, to the
investigating agencies, as well to the accused. This means that in
instances where he finds material indicating that the accused
legitimately deserves a benefit during the trial, he must not
conceal it. The space carved out for the Public Prosecutor is
clearly that of an independent officer who secures the cause of
justice and fair play in a criminal trial.
9. In light of this exposition, we find it useful to advert to
certain provisions of the CrPC that highlight the role of a Public
Prosecutor and the prerequisites for a person holding that office,
most significant amongst which is Section 24:
“ 24. Public Prosecutors – (1) For every High Court, the
Central Government or the State Government shall,
after consultation with the High Court, appoint a
Public Prosecutor and may also appoint one or more
Additional Public Prosecutors, for conducting in such
Court, any prosecution, appeal or other proceeding on
behalf of the Central Government or State
Government, as the case may be…
(7) A person shall be eligible to be appointed as a
Public Prosecutor or an Additional Public Prosecutor…
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only if he has been in practice as an advocate for not
less than seven years.
(8) The Central Government or the State Government
may appoint, for the purpose of any case or class of
cases, a person who has been in practice as an
advocate for not less than ten years as a Special Public
Prosecutor.
Provided that the Court may permit the victim to
engage an advocate of his choice to assist the
prosecution under this subsection.”
(emphasis supplied)
Other important provisions are as follows:
“ 225. Trial to be conducted by Public
Prosecutor – In every trial before a Court of Session,
the prosecution shall be conducted by a Public
Prosecutor.
x x x
301. 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 a
pleader 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 pleader 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.
302. Permission to conduct prosecution – (1) Any
Magistrate inquiring into or trying a case may permit
the prosecution to be conducted by any person other
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than police officer below the rank of Inspector; but no
person, other than the AdvocateGeneral or
Government Advocate or a Public Prosecutor or
Assistant Public Prosecutor, shall be entitled to do so
without such permission…
(2) Any person conducting the prosecution may do so
personally or by a pleader.”
10. From a reading of these provisions, it is clear that a Public
Prosecutor is entrusted with the responsibility of conducting the
prosecution of a case. That this is a crucial role is evident from
conditions such as in Section 24(7), 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 and the proviso to Section 24(8) 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.
11.
Contrary to the argument made by learned Senior Counsel
for Respondent No. 1, we do not find that the use of the words
“ under this subsection ” in the proviso to Section 24(8) implies
that a victim’s counsel can only be engaged to assist a Special
Public Prosecutor. Such an interpretation would go against
Section 301(2), which makes the pleader instructed by a private
10
person subject to the directions of the Public Prosecutor or the
Assistant Public Prosecutor. In our considered opinion, a
harmonious reading should be given to these provisions to give
them full effect. Furthermore, credence should be given to the
overall emphasis on victimology underlying the 2009 Amendment
Bill, as reflected in its Statement of Objects and Reasons:
“ Statement of Objects and Reasons .– The need to
amend the Code of Criminal Procedure, 1973 to ensure
fair and speedy justice and to tone up the criminal
justice system has been felt for quite sometime. The
Law Commission has undertaken a comprehensive
th
review of the Code of Criminal Procedure in its 154
Report and its recommendations have been found very
appropriate, particularly those relating to provisions
concerning… victimology…
2. … At present victims are the worst sufferers in a
crime and they don’t have much role in the Court
proceedings. They need to be given certain rights and
compensation so that there is no distortion of the
criminal justice system.”
In view of this context and the provisions of the CrPC, there
appears to be no justifiable basis for applying the provision only
with respect to Special Public Prosecutors. Thus, we find that the
assistance given by the victim’s counsel is meant to be given to
the prosecution in general.
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12.
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.
12.1
The use of the term “ assist ” in the proviso to Section
24(8) is crucial, and implies that the victim’s counsel is only
intended to have a secondary role qua the Public Prosecutor. This
is supported by the fact that the original Amendment Bill to the
CrPC had used the words “ coordinate with the prosecution ”.
However, a change was later proposed and in the finally adopted
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version, the words “ coordinate with ” were substituted by “ assist ”.
This change is reflective of an intention to only assign a
supportive role to the victim’s counsel, which would also be in
consonance with the limited role envisaged for pleaders
instructed by private persons under Section 301(2). In our
considered opinion, a mandate that allows the victim’s counsel to
make oral arguments and crossexamine 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 and
Section 301(2), permitting such a free hand would go against the
scheme envisaged under the CrPC.
12.2
In some instances, such a wide array of functions may
also have adverse consequences on the fairness of a trial. For
instance, there may be a case where the Public Prosecutor may
make a strategic call to examine some witnesses and leave out
others. If the victim’s counsel insists upon examining any of the
left out witnesses, it is possible that the evidence so brought forth
may weaken the prosecution case. If given a free hand, in some
instances, the trial may even end up becoming a vindictive battle
between the victim’s counsel and the accused, which may further
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impact the safeguards put in place for the accused in criminal
trials. These lapses may be aggravated by a lack of advocacy
experience on the part of the victim’s counsel. In contrast, such
dangers would not arise in the case of a Public Prosecutor, who is
required to have considerable experience in the practice of law,
and act as an independent officer of the Court. Thus, it is
important to appreciate why the role of a victim’s counsel is made
subject to the instructions of the Public Prosecutor, who occupies
a prime position by virtue of the increased responsibilities
shouldered by him with respect to the conduct of a criminal trial.
12.3
At the same time, the realities of criminal prosecutions,
as they are conducted today, cannot be ignored. There is no
denying that Public Prosecutors are often overworked. In certain
places, there may be a single Public Prosecutor conducting trials
in over 23 courts. Thus, the possibility of them missing out on
certain aspects of the case cannot be ignored or discounted. A
victimcentric approach that allows for greater participation of
the victim in the conduct of the trial can go a long way in
plugging such gaps. To this extent, we agree with the submission
made by the learned Senior Counsel for the Appellant that the
introduction of the proviso to Section 24(8) acts as a safety valve,
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inasmuch as the victim’s counsel can make up for any oversights
or deficiencies in the prosecution case. Further, to ensure that
the right of appeal accorded to a victim under the proviso to
Section 372 of the Cr.P.C. is not rendered meaningless due to the
errors of the Public Prosecutor at the trial stage itself, we find
that some significant role should be given to the victim’s counsel
while assisting the prosecution. However, while doing so, the
balance inherent in the scheme of the CrPC should not be
tampered with, and the prime role accorded to the Public
Prosecutor should not be diluted.
12.4
In this regard, given that the modalities of each case are
different, we find that the extent of assistance and the manner of
giving it would depend on the facts and circumstances of each
case. Though we cannot detail and discuss all possible scenarios
that may arise during a criminal prosecution, we find that a
victim’s counsel should ordinarily not be given the right to make
oral arguments or examine and crossexamine witnesses. As
stated in Section 301(2), the private party’s pleader is subject to
the directions of the Public Prosecutor. In our considered
opinion, the same principle should apply to the victim’s counsel
under the proviso to Section 24(8), as it adequately ensures that
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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.
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
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165 of the Indian Evidence Act, 1872. In this regard, we agree
with the observations made by the Tripura High Court in Smt.
v. (supra) that the victim’s counsel
Uma Saha State of Tripura
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.
13. In view of the foregoing discussion, we find that the High
Court was correct in dismissing the application made by the
Appellant seeking permission for her counsel to crossexamine
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 keeping in mind the
observations made supra. The instant appeal is disposed of
accordingly.
...........................................J.
(Mohan M. Shantanagoudar)
............................................J.
(Deepak Gupta)
New Delhi;
November 20, 2019.
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