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u/s 301 Cr.P.C victim’s private counsel can only assist public prosecutor- SC

REKHA MURARKA VS. THE STATE OF WEST BENGAL AND ANR., CRIMINAL APPEAL NO. 1727 OF 2019, ARISING OUT OF SLP (CRL.) NO. 7848 OF 2019

The bench constituting of Hon’ble Justice Mohan M Shantanagoudar and Hon’ble Justice Deepak Gupta dismissed the appeal arises out of judgment passed by the Hon’ble High Court of Calcutta in matter regarding request of victim’s council for cross-examine the defence witnesses after Public Prosecutor.

The appellant made an application to the Additional District and Session Judge, Fast Track Court, Calcutta under section 301 read with proviso to section 24(8) of the code of Criminal procedure, 1973 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(c) to examine the prosecution witnesses only after the learned Public Prosecutor, if so required;(d) to cross­-examine 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

The learned Additional District and Session Judge rejected the said prayer and observed that section 301 of 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. Thereafter, the honorable High Court agreed upon the judgment passed by the learned Additional District and Session Judge and alluding to section 25 of the CrPC, it was held that it is mandated that a session 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. The court stated the distinction between ‘assisting’ the prosecution and ‘conducting’ it. The High Court also discussed various incidents where allowing a free hand to the victim’s counsel may hamper the prosecution’s case.

The issues considered by the Supreme Court is

Whether the victim’s counsel can cross-examine the defence witnesses after Public Prosecutor? And if such power is not there for the victim’s counsel then to what extent such assistance can be accorded by the victim’s counsel?

The appellant argued that section 301 should not be read as a bar to section 24(8) as to limit the role of the victim’s counsel to mere filing of written arguments. Pleaded 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 duties or make an omission by oversight and relied upon several high Court decisions such as Sathyavani Ponrani  v.Samuel Raj & Ors. 2010 (2) MWN (Cr.) 273, Shankar v. State of  Karnataka & Ors. (2013) 2 AIR Kant R 265, Uma Saha v. State of Tripura 2014 SCC OnLine Tri 859, etc..

The honorable Supreme Court stated 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. 

The Supreme Court elaborated on the use of the term “assists” 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 version, the words “co­ordinate with” were substituted by “assist”.

The court stated that 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 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 CrPC.

The Supreme Court also declared the;

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

Thus, the Supreme Court concluded that the High Court was correct in dismissing the application made by the appellant, however in case the Session Judge finds that the assistance of a private counsel is necessary for the victim, he may permit it with caution and therefore in the instant case appeal is dismissed accordingly.

Srutha R Elayidom

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