SC:Ordinarily victim’s counsel can’t crossexamine witnesses or argue orally

The Hon’ble Supreme Court, on 20th November 2019, in the matter of Rekha Murarka v. The State of West Bengal and Anr. pronounced that a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross­examine witnesses. 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.

Question before the Hon’ble Supreme Court:

The extent to which a victim’s counsel can participate in the prosecution of a case.

Key observations:

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)

A Public Prosecutor is entrusted with the responsibility of conducting the prosecution of a case. (Para 10)

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. (Para 12.1)

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. (Para 12.1)

A victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross­examine witnesses. (Para 12.4)

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)

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)

Copy of judgement: Judgement_20-Nov-2019

-Adv. Tushar Kaushik

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