Whether the private advocate of the Victim can conduct the prosecution due to non activeness of the Public prosecutor ? Role of the public prosecutor = . Apex court observed that 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. Role of the Private advocate of the Victim :- 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. 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. 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.

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
    1. The brief facts giving rise to this appeal are as follows:
      1
      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;
      2
      (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
      3
      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 crossexamine the defence witnesses after the Public Prosecutor could
      not be allowed. Accordingly, C.R.R. No. 2357 of 2018 was
      dismissed. Hence, this appeal.
  3. 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
    4
    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.
    5
  4. 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
    6
    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.
  5. Heard learned Senior Counsel representing both the parties.
  6. 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.
  7. 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
    7
    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.
  8. 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…
    8
    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
  9. 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.
  10. Permission to conduct prosecution– (1) Any
    Magistrate inquiring into or trying a case may permit
    the prosecution to be conducted by any person other
    9
    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.”
  11. 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.
  12. 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
    10
    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…
  13. … 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.
    11
  14. 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
    12
    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
    13
    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,
    14
    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
    15
    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
    16
    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.
  15. 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.
    17