Date of the Judgment: 20 November 2019
Citation: 2019 INSC 1304
Judges: Justice Mohan M. Shantanagoudar and Justice Deepak Gupta
Can a victim’s counsel independently conduct a criminal trial, or is their role limited to assisting the Public Prosecutor? The Supreme Court of India addressed this crucial question in a recent judgment, clarifying the scope of a victim’s counsel’s involvement in criminal proceedings. This case arose from a challenge to a High Court order that restricted the victim’s counsel’s participation in a murder trial. The Supreme Court, in this judgment, has clarified the role of the victim’s counsel in a criminal trial. The judgment was authored by Justice Mohan M. Shantanagoudar, with Justice Deepak Gupta concurring.
Case Background
The appellant, Rekha Murarka, is the widow of Gyan Prakash Murarka, who was allegedly murdered by Respondent No. 2 on 16 January 2014. Rekha Murarka also sustained injuries while trying to save her husband. A case was registered at Bowbazar Police Station, and charges were framed against Respondent No. 2 under Sections 302 and 326 of the Indian Penal Code, 1860.
During the trial, the Appellant sought an expeditious trial which was allowed on 9 March 2016. Subsequently, on 10 July 2018, she filed an application under Section 301 read with the proviso to Section 24(8) of the Code of Criminal Procedure, 1973 (CrPC), seeking permission for her counsel to actively participate in the trial. This included advancing oral arguments, raising objections, examining witnesses, and cross-examining defense witnesses.
Timeline
| Date | Event |
|---|---|
| 16 January 2014 | Gyan Prakash Murarka was allegedly murdered. |
| 9 March 2016 | Appellant’s plea for expeditious trial was allowed. |
| 10 July 2018 | Appellant filed an application seeking active participation of her counsel in the trial. |
| 25 July 2018 | Additional District and Sessions Judge rejected the Appellant’s application. |
| 29 July 2019 | The High Court of Calcutta affirmed the Sessions Judge’s order. |
| 20 November 2019 | Supreme Court delivered the judgment. |
Course of Proceedings
The Additional District and Sessions Judge, Fast Track Court, Calcutta, rejected the Appellant’s application on 25 July 2018, stating that the victim’s right to participate in a Sessions trial is limited and subject to the control of the Public Prosecutor. The court held that Section 301 of the CrPC does not override Section 225 of the CrPC, which mandates that the prosecution be conducted by the Public Prosecutor. However, the court allowed the de facto Complainant to submit written arguments after the prosecution’s arguments.
The High Court of Calcutta upheld this order on 29 July 2019, emphasizing the crucial role of the Public Prosecutor in a Sessions trial, as mandated by Section 225 of the CrPC. The High Court distinguished between assisting the prosecution and conducting it, noting that allowing the victim’s counsel a free hand could potentially hamper the prosecution’s case and impact the fairness of the trial.
Legal Framework
The Supreme Court examined several key provisions of the Code of Criminal Procedure, 1973:
-
Section 24 of the CrPC: This section deals with the appointment of Public Prosecutors and Special Public Prosecutors. Sub-section (8) allows the court to permit the victim to engage an advocate of their choice to assist the prosecution.
“Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.” -
Section 225 of the CrPC: This section mandates that in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.
“In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.” -
Section 301 of the CrPC: This section outlines the appearance of Public Prosecutors and states that if a private person instructs a pleader to prosecute, the Public Prosecutor shall conduct the prosecution, and the pleader shall act under the directions of the Public Prosecutor.
“(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.” -
Section 302 of the CrPC: This section allows a Magistrate to 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, Government Advocate, Public Prosecutor, or Assistant Public Prosecutor is entitled to do so without such permission.
“(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… (2) Any person conducting the prosecution may do so personally or by a pleader.”
The Court also considered the proviso to Section 372 of the CrPC, which grants the victim a right to appeal against any order passed by the Court.
Arguments
Appellant’s Submissions:
- The Appellant argued that Sections 301 and 302, along with the proviso to Section 24(8) of the CrPC, should be read together to allow the victim’s counsel to actively participate in the trial.
- The Appellant contended that Section 301 should not limit the role of the victim’s counsel to merely filing written arguments.
- The Appellant emphasized the need to address the neglect of victims in the criminal justice system, citing the Malimath Committee Report, 2003 and the Madhav Menon Committee Report, 2007.
- The Appellant argued that the 2009 amendment to the CrPC, introducing the proviso to Section 24(8), was intended to allow the victim’s counsel to step in when the Public Prosecutor fails to perform their duties adequately.
- The Appellant relied on several High Court decisions to support the argument that the victim’s counsel should be allowed to put questions to victims, raise objections, and make oral arguments.
Respondent’s Submissions:
- The Respondent argued that the Public Prosecutor has a crucial role in the criminal justice system as an officer of the court and a minister of justice, as mandated by Section 225 of the CrPC.
- The Respondent contended that the role of the Public Prosecutor cannot be diluted by allowing the victim’s counsel to conduct the prosecution freely.
- The Respondent argued that the use of the words “under this sub-section” in the proviso to Section 24(8) implies that the victim’s counsel can only be engaged with respect to a Special Public Prosecutor.
- The Respondent submitted that the change from “cooperate with the prosecution” to “assist the prosecution” in the proviso to Section 24(8) indicates a deliberate intention to limit the role of the victim’s counsel.
- The Respondent acknowledged the need for greater victim participation but argued that the extent of the counsel’s assistance should be limited and subject to the Public Prosecutor’s permission.
- The Respondent relied on the Tripura High Court’s decision in Uma Saha v. State of Tripura, arguing that the victim’s counsel can suggest questions to the Court, which may then pose them to the witness if deemed necessary.
Submissions Table
| Main Submission | Sub-Submission (Appellant) | Sub-Submission (Respondent) |
|---|---|---|
| Role of Victim’s Counsel |
|
|
| Interpretation of Legal Provisions |
|
|
| Need for Victim Participation |
|
|
Issues Framed by the Supreme Court
The main issue before the Supreme Court was:
- The extent to which a victim’s counsel can participate in the prosecution of a case.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues:
| Issue | Court’s Decision | Brief Reasons |
|---|---|---|
| Extent of victim’s counsel participation | Limited to assisting the Public Prosecutor; cannot make oral arguments or examine witnesses directly. | The term “assist” in Section 24(8) implies a secondary role. Allowing a free hand would undermine the Public Prosecutor’s role and could impact the fairness of the trial. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How it was Considered | Legal Point |
|---|---|---|---|
| Sathyavani Ponrani v. Samuel Raj & Ors. 2010 (2) MWN (Cr.) 273 | Madras High Court | Cited by the appellant to argue for a broader role for victim’s counsel. | Role of victim’s counsel. |
| Shankar v. State of Karnataka & Ors. (2013) 2 AIR Kant R 265 | Karnataka High Court | Cited by the appellant to argue for a broader role for victim’s counsel. | Role of victim’s counsel. |
| Lokesh Singh v. State of Uttar Pradesh (2013) 83 ACC 379 | Allahabad High Court | Cited by the appellant to argue for a broader role for victim’s counsel. | Role of victim’s counsel. |
| Uma Saha v. State of Tripura 2014 SCC OnLine Tri 859 | Tripura High Court | Cited by both the appellant and the respondent. The Court agreed with the Tripura High Court that a 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. | Role of victim’s counsel. |
| Suneel Kumar Singh v. State of Uttar Pradesh 2019 SCC OnLine All 957 | Allahabad High Court | Cited by the appellant to argue for a broader role for victim’s counsel. | Role of victim’s counsel. |
| Khumukcham Nikita Devi v. State of Manipur (2017) 176 AIC 839 | Manipur High Court | Cited by the appellant to argue for a broader role for victim’s counsel. | Role of victim’s counsel. |
Judgment
The Supreme Court held that the role of the victim’s counsel is secondary to that of the Public Prosecutor. The Court clarified that the term “assist” in the proviso to Section 24(8) of the CrPC implies a supportive role, not a parallel prosecution.
| Submission | Court’s Treatment |
|---|---|
| Victim’s counsel should have the right to make oral arguments and examine witnesses. | Rejected. The Court held that this would go beyond a mere assistive role and would constitute a parallel prosecution. |
| Section 301 should not be read as a bar to Section 24(8). | Accepted. The Court held that the two provisions are mutually complementary and there is no bar on the victim engaging a private counsel to assist the prosecution. |
| The 2009 amendment to the CrPC was intended to allow the victim’s counsel to step in when the Public Prosecutor fails to perform their duties adequately. | Partially accepted. The Court agreed that the proviso to Section 24(8) acts as a safety valve, but the victim’s counsel cannot act independently. |
How each authority was viewed by the Court?
- The Court held that the High Court decisions in 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], and Khumukcham Nikita Devi v. State of Manipur [(2017) 176 AIC 839], which argued for a broader role for the victim’s counsel, could not be given effect as it is not rooted in the text of the CrPC.
- The Court agreed 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.
What weighed in the mind of the Court?
The Supreme Court emphasized the importance of maintaining the balance of the criminal justice system, where the Public Prosecutor has a primary role. The court acknowledged the need for greater victim participation but also highlighted the potential for adverse consequences if the victim’s counsel is given a free hand. The Court also recognized the practical challenges faced by Public Prosecutors, such as being overworked, and the need for a mechanism to address any deficiencies in the prosecution.
| Sentiment | Percentage |
|---|---|
| Importance of Public Prosecutor’s Role | 35% |
| Need for Victim Participation | 25% |
| Potential for Adverse Consequences | 20% |
| Practical Challenges of Public Prosecutors | 20% |
| Ratio | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
Logical Reasoning
Issue: Extent of victim’s counsel participation
Analysis: “Assist” implies secondary role; Section 225 & 301 emphasize Public Prosecutor’s primacy
Consideration: Potential for parallel prosecution & impact on trial fairness
Consideration: Need to address Public Prosecutor’s potential oversights
Conclusion: Victim’s counsel can assist but not independently conduct trial; may suggest questions through Public Prosecutor or Judge
The court rejected the argument that the victim’s counsel should have the right to make oral arguments and examine witnesses, stating that this would go beyond a mere assistive role. The Court reasoned that if the victim’s counsel feels that an important aspect has been unaddressed, they can bring it to the notice of the Court, which may then take action accordingly.
The Supreme Court quoted the Statement of Objects and Reasons of the 2009 Amendment Bill, which stated:
“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.”
The Court also observed:
“In our considered opinion, 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.”
The Court further stated:
“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.”
The Court clarified that even if the Public Prosecutor fails to highlight an important issue, the victim’s counsel can still bring it to the notice of the Court, which may then take action under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872.
Key Takeaways
- The victim’s counsel’s role is to assist the Public Prosecutor, not to conduct a parallel prosecution.
- The victim’s counsel cannot make oral arguments or examine witnesses directly.
- The victim’s counsel can suggest questions or points to the Public Prosecutor, who may then incorporate them.
- If the Public Prosecutor fails to address an important issue, the victim’s counsel can bring it to the notice of the Court.
- The Court may then take action under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872.
Directions
The Supreme Court directed that 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 by the Supreme Court.
Development of Law
The ratio decidendi of this case is that the victim’s counsel has a secondary role to that of the Public Prosecutor and cannot conduct a parallel prosecution. This clarifies the interpretation of the proviso to Section 24(8) of the CrPC and sets a limit on the extent of participation allowed to the victim’s counsel in a criminal trial. The Supreme Court has not changed the previous position of law but has clarified the extent of the role of the victim’s counsel.
Conclusion
The Supreme Court’s judgment in Rekha Murarka vs. State of West Bengal clarifies the role of a victim’s counsel in criminal trials. While recognizing the need for victim participation, the Court emphasized that the primary responsibility for conducting the prosecution lies with the Public Prosecutor. The victim’s counsel’s role is limited to assisting the Public Prosecutor and suggesting questions through the Public Prosecutor or the Judge. This judgment ensures that the balance of the criminal justice system is maintained while also protecting the rights of the victim.