REKHA MURARKAversusTHE STATE OF WEST BENGAL AND ANR.

106                       [2019]
               SUPREME COURT     14 S.C.R. 106
                              REPORTS                     [2019] 14 S.C.R.


A                            REKHA MURARKA
                                        v.
                 THE STATE OF WEST BENGAL AND ANR.
                       (Criminal Appeal No. 1727 of 2019)
B                            NOVEMBER 20, 2019
                 [MOHAN M. SHANTANAGOUDAR AND
                            DEEPAK GUPTA, JJ.]
             Code of Criminal Procedure, 1973 – s.301 r/w. s.24(8) – The
C     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
D
      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
E     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
F
      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
G     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

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                                       106
    REKHA MURARKA v. THE STATE OF WEST BENGAL                             107


to assist the Court in arriving at the truth by putting forth all the     A
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
                                                                          B
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                    C
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           D
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            E
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]
                                                                          F
       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      G
clear from a joint reading of Section 301 and the proviso to Section
24(8) that the two provisions are mutually complementary. There



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108            SUPREME COURT REPORTS                     [2019] 14 S.C.R.


A     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
B     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
C     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
D     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
E     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
F     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
G     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
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    REKHA MURARKA v. THE STATE OF WEST BENGAL                        109


increased responsibilities shouldered by him with respect to the     A
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    B
given the right to make oral arguments or examine and cross-
examine 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     C
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       D
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    E
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          F
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]          G
     Uma Saha v. State of Tripura 2014 SCC OnLine Tri
     859 – approved.



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110            SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A           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
B
            (2017) 176 AIC 839 – referred to.
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1727 of 2019.
            From the Judgment and Order dated 29.07.2019 of the High Court
C     at Calcutta in CRR No. 2357 of 2018.
            Sidharth Luthra, Sr. Adv., Nitish Massey, Tushar Kumar, Ayan
      Bhattacharjee, Ayushi Sharma Khazanchi, Shubhangi Jain, Pankaj Singhal,
      Akshay Sehgal, Advs. for the Appellant.
             R. Basant, Sr. Adv., Suhaan Mukerji, Ms. Astha Sharma, Amit
D     Verma, Prastut Dalvi, Akshay Sahay, Ms. Kajal Dalal, Abhishek
      Manchanda, Naveen Kumar (for M/S. PLR Chambers And Co.), Advs.
      for the Respondents.
            The Judgment of the Court was delivered by
            MOHAN M. SHANTANAGOUDAR, J.
E
            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
F     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:
             3.1 The Appellant herein is the widow of one Gyan Prakash
G     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
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     REKHA MURARKA v. THE STATE OF WEST BENGAL                                 111
          [MOHAN M. SHANTANAGOUDAR, J. ]

framed against him for the commission of offences punishable under             A
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          B
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;           C
      (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
      (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.”                                                E
       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         F
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.                                                  G

      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 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
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112             SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A     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
B
      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.
C            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
D     of written arguments. Alluding to 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
E     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
F     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
G     by the Public Prosecutor.
             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

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     REKHA MURARKA v. THE STATE OF WEST BENGAL                                 113
          [MOHAN M. SHANTANAGOUDAR, J. ]

that the Public Prosecutor is an officer of the Court and a minister of        A
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 sub-
                                                                               B
section” 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          C
“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 assistance should be limited
and subject to the permission of the Public Prosecutor. In this regard, he
                                                                               D
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 cross-examine 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.                        E
      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.         F

       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       G
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
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114             SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A     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.
B
             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:
C           “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
D           be…
             (7) A person shall be eligible to be appointed as a Public Prosecutor
             or an Additional Public Prosecutor…only if he has been in practice
             as an advocate for not less than seven years.

E           (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
F            advocate of his choice to assist the prosecution under this sub-
             section.”
                                                             (emphasis supplied)
             Other important provisions are as follows:
            “225. Trial to be conducted by Public Prosecutor– In every
G           trial before a Court of Session, the prosecution shall be conducted
            by a Public Prosecutor.
                                          xxx
             301. Appearance by Public Prosecutors– (1) The Public
H            Prosecutor or Assistant Public Prosecutor in charge of a case
     REKHA MURARKA v. THE STATE OF WEST BENGAL                                  115
          [MOHAN M. SHANTANAGOUDAR, J. ]

      may appear and plead without any written authority before any             A
      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          B
      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          C
      conducted by any person other than 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            D
      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        E
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.
                                                                                F
        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
sub-section” 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 person subject to the directions of the Public          G
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:
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116             SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A            “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
B
            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.”
C
            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.
D
             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
E     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
F     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
G     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
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     REKHA MURARKA v. THE STATE OF WEST BENGAL                                  117
          [MOHAN M. SHANTANAGOUDAR, J. ]

consonance with the limited role envisaged for pleaders instructed by           A
private persons under Section 301(2). 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. Given the primacy
accorded to the Public Prosecutor in conducting a trial, as evident from
                                                                                B
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            C
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      D
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              E
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           F
Public Prosecutors are often overworked. In certain places, there may
be a single Public Prosecutor conducting trials in over 2-3 courts. Thus,
the possibility of them missing out on certain aspects of the case cannot
be ignored or discounted. A victim-centric approach that allows for
greater participation of the victim in the conduct of the trial can go a long   G
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, inasmuch as the
victim’s counsel can make up for any oversights or deficiencies in the

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118            SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A     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
B
      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
C     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 cross-
      examine witnesses. As stated in Section 301(2), the private party’s pleader
      is subject to the directions of the Public Prosecutor. In our considered
D     opinion, 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
E     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
F     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
G     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. In this regard, we agree with the observations made by the
H
     REKHA MURARKA v. THE STATE OF WEST BENGAL                                   119
          [MOHAN M. SHANTANAGOUDAR, J. ]

Tripura High Court in Smt. Uma Saha v. State of Tripura (supra) that             A
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            B
seeking permission for her counsel to cross-examine 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.
                                                                                 C

Ankit Gyan                                                 Appeal disposed of.




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