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.  

3. The brief facts giving rise to this appeal are as follows:

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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  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. 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.

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,  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

Khumukcham Nikita Devi v. State of Manipur (2017) 176 AIC

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  Uma Saha  v.  State of Tripura,  2014

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

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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 review of the Code of Criminal Procedure in its 154th

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.

Uma Saha v. State of Tripura (supra) 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.  

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 dismissed

accordingly.

...........................................J. (Mohan M. Shantanagoudar)

               ............................................J.       (Deepak Gupta)

New Delhi; November 20, 2019.

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