Code of Criminal Procedure, 1973 – s.301 r/w. s.24(8) – The Extent to which a victim’s counsel can participate in prosecution of a case – Consideration of – Prosecution case was that appellant’s husband was stabbed and murdered by respondent No.2 – Appellant filed an application u/s.301 r/w. s.24(8) of Cr.P.C. and sought oral arguments, examination and cross-examination after the Public Prosecutor – Application was rejected by the Trial court – High Court affirmed the order of the Trial court – On appeal, held: The use of the term “assist” in the proviso to s.24(8) in 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 s.225 and s.301(2), permitting such a free hand would go against the scheme envisaged under the Cr.P.C. – However, 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 – Further, if there is a situation where the public prosecutor fails to highlight some issue suggested by the victim’s counsel, he can still channelise his questions or arguments through the Judge first – Therefore, the High Court was correct in dismissing the application made by the appellant.
Criminal Trial – Public Prosecutor – Importance of – Held: Public Prosecutor 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.
Disposing of the appeal, the Court
HELD: 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 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. [Para 8] [113-G-H; 114-A-B]
2. From a reading of Sections 24, 225, 301 and 302 of Cr.P.C., 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. [Para 10] [115-E]
3. 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 “co-ordinate with the prosecution”. However, a change was later proposed and in the finally adopted version, the words “co-ordinate 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). 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 and Section 301(2), permitting such a free hand would go against the scheme envisaged under the CrPC. 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 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. [Para 12.1 and 12.2] [116-G-H; 117-A-E]
4. Though it is not possible to go in detail and discuss all possible scenarios that may arise during a criminal prosecution, this Court finds 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. The same principle should apply to the victim’s counsel under the proviso to Section 24(8), 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. [Para 12.4] [118-C-E]
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. [Para 12.5] [118-F-H]
Uma Saha v. State of Tripura 2014 SCC OnLine Tri
859 – approved.
Sathyavani Ponrani v. Samuel Raj & Ors. 2010 (2) MWN (Cr.) 273, Shankar v. State of Karnataka & Ors. (2013) 2 AIR Kant R 265, Lokesh Singh v. State of Uttar Pradesh (2013) 83 ACC 379 ; Suneel Kumar Singh v. State of Uttar Pradesh 2019 SCC OnLine All
957 ; Khumukcham Nikita Devi v. State of Manipur (2017) 176 AIC 839 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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