REKHA MURARKA versus THE STATE OF WEST BENGAL AND ANR. on 20 November 2019

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[2019] 14 S.C.R. 106

SUPREME COURT REPORTS

[2019] 14 S.C.R.

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REKHA MURARKA

v.

THE STATE OF WEST BENGAL AND ANR.

(Criminal Appeal No. 1727 of 2019)

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NOVEMBER 20, 2019

[MOHAN M. SHANTANAGOUDAR AND

DEEPAK GUPTA, JJ.]

Code of Criminal Procedure, 1973 – s.301 r/w. s.24(8) – TheCExtent to which a victim’s counsel can participate in prosecution ofa case – Consideration of – Prosecution case was that appellant’shusband was stabbed and murdered by respondent No.2 – Appellantfiled an application u/s.301 r/w. s.24(8) of Cr.P.C. and sought oralarguments, examination and cross-examination after the PublicProsecutor – Application was rejected by the Trial court – HighDCourt affirmed the order of the Trial court – On appeal, held: Theuse of the term “assist” in the proviso to s.24(8) in crucial, andimplies that the victim’s counsel is only intended to have a secondaryrole qua the Public Prosecutor – A mandate that allows the victim’scounsel to make oral arguments and cross-examine witnesses goesEbeyond a mere assistive role and constitutes a parallel Prosecutionproceeding by itself – Given the primacy accorded to the PublicProsecutor in conducting a trial, as evident from s.225 and s.301(2),permitting such a free hand would go against the scheme envisagedunder the Cr.P.C. – However, if the victim’s counsel feels that acertain aspect has gone unaddressed in the examination of theFwitnesses or the arguments advanced by the public prosecutor, hemay route any questions or points through the public prosecutorhimself – Further, if there is a situation where the public prosecutorfails to highlight some issue suggested by the victim’s counsel, hecan still channelise his questions or arguments through the JudgeGfirst – Therefore, the High Court was correct in dismissing theapplication made by the appellant.

Criminal Trial – Public Prosecutor – Importance of – Held:Public Prosecutor is an officer of the Court and his primary duty is H

to assist the Court in arriving at the truth by putting forth all therelevant material on behalf of the prosecution – While dischargingthese duties, he must act in a manner that is fair to the Court, to theinvestigating agencies, as well to the accused – This means that ininstances where he finds material indicating that the accusedlegitimately deserves a benefit during the trial, he must not concealit – The space carved out for the Public Prosecutor is clearly thatof an independent officer who secures the cause of justice and fairplay in a criminal trial.

Disposing of the appeal, the Court

HELD: In our criminal justice system, the PublicProsecutor occupies a position of great importance. Given thatcrimes are treated as a wrong against the society as a whole, hisrole in the administration of justice is crucial, as he is not just arepresentative of the aggrieved person, but that of the State atlarge. Though he is appointed by the Government, he is not aservant of the Government or the investigating agency. He is anofficer of the Court and his primary duty is to assist the Court inarriving at the truth by putting forth all the relevant material onbehalf of the prosecution. While discharging these duties, hemust act in a manner that is fair to the Court, to the investigatingagencies, as well to the accused. This means that in instanceswhere he finds material indicating that the accused legitimatelydeserves a benefit during the trial, he must not conceal it. Thespace carved out for the Public Prosecutor is clearly that of anindependent officer who secures the cause of justice and fair playin a criminal trial. [Para 8] [113-G-H; 114-A-B]

2. From a reading of Sections 24, 225, 301 and 302 ofCr.P.C., it is clear that a Public Prosecutor is entrusted with theresponsibility of conducting the prosecution of a case. That thisis a crucial role is evident from conditions such as in Section24(7), which stipulates a minimum legal experience of seven yearsfor a person to be eligible to be a Public Prosecutor. It is furtherclear from a joint reading of Section 301 and the proviso to Section24(8) that the two provisions are mutually complementary. There AB

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[2019] 14 S.C.R.

Ais no bar on the victim engaging a private counsel to assist theprosecution, subject to the permission of the Court. [Para 10][115-E]3. The use of the term “assist” in the proviso to Section24(8) is crucial, and implies that the victim’s counsel is onlyBintended to have a secondary role qua the Public Prosecutor.This is supported by the fact that the original Amendment Bill tothe CrPC had used the words “co-ordinate with the prosecution”.However, a change was later proposed and in the finally adoptedversion, the words “co-ordinate with” were substituted by“assist”. This change is reflective of an intention to only assign aCsupportive role to the victim’s counsel, which would also be inconsonance with the limited role envisaged for pleadersinstructed by private persons under Section 301(2). A mandatethat allows the victim’s counsel to make oral arguments andcross-examine witnesses goes beyond a mere assistive role, andDconstitutes a parallel prosecution proceeding by itself. Given theprimacy accorded to the Public Prosecutor in conducting a trial,as evident from Section 225 and Section 301(2), permitting sucha free hand would go against the scheme envisaged under theCrPC. In some instances, such a wide array of functions mayalso have adverse consequences on the fairness of a trial. ForEinstance, there may be a case where the Public Prosecutor maymake a strategic call to examine some witnesses and leave outothers. If the victim’s counsel insists upon examining any of theleft out witnesses, it is possible that the evidence so broughtforth may weaken the prosecution case. If given a free hand, inFsome instances, the trial may even end up becoming a vindictivebattle between the victim’s counsel and the accused, which mayfurther impact the safeguards put in place for the accused incriminal trials. These lapses may be aggravated by a lack ofadvocacy experience on the part of the victim’s counsel. In contrast, such dangers would not arise in the case of a PublicGProsecutor, who is required to have considerable experience inthe practice of law, and act as an independent officer of theCourt. Thus, it is important to appreciate why the role of a victim’scounsel is made subject to the instructions of the PublicProsecutor, who occupies a prime position by virtue of theH

increased responsibilities shouldered by him with respect to theconduct 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 allpossible scenarios that may arise during a criminal prosecution,this Court finds that a victim’s counsel should ordinarily not begiven the right to make oral arguments or examine and cross-examine witnesses. As stated in Section 301(2), the privateparty’s pleader is subject to the directions of the PublicProsecutor. The same principle should apply to the victim’scounsel under the proviso to Section 24(8), as it adequatelyensures that the interests of the victim are represented. If thevictim’s counsel feels that a certain aspect has gone unaddressedin the examination of the witnesses or the arguments advancedby the Public Prosecutor, he may route any questions or pointsthrough the Public Prosecutor himself. This would not onlypreserve the paramount position of the Public Prosecutor underthe scheme of the CrPC, but also ensure that there is noinconsistency between the case advanced by the PublicProsecutor and the victim’s counsel. [Para 12.4] [118-C-E]

5. However, even if there is a situation where the PublicProsecutor fails to highlight some issue of importance despite ithaving been suggested by the victim’s counsel, the victim’scounsel may still not be given the unbridled mantle of makingoral arguments or examining witnesses. This is because in suchcases, he still has a recourse by channelling his questions orarguments through the Judge first. For instance, if the victim’scounsel finds that the Public Prosecutor has not examined awitness properly and not incorporated his suggestions either, hemay bring certain questions to the notice of the Court. If theJudge finds merit in them, he may take action accordingly byinvoking his powers under Section 311 of the CrPC or Section165 of the Indian Evidence Act, 1872. [Para 12.5] [118-F-H]

Uma Saha v. State of Tripura 2014 SCC OnLine Tri859 – approved.

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110SUPREME COURT REPORTS

ASathyavani 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 ofUttar Pradesh (2013) 83 ACC 379 ; Suneel KumarSingh v. State of Uttar Pradesh 2019 SCC OnLine All957 ; Khumukcham Nikita Devi v. State of ManipurB(2017) 176 AIC 839 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1727 of 2019.

From the Judgment and Order dated 29.07.2019 of the High CourtCat Calcutta in CRR No. 2357 of 2018.

Sidharth Luthra, Sr. Adv., Nitish Massey, Tushar Kumar, AyanBhattacharjee, Ayushi Sharma Khazanchi, Shubhangi Jain, Pankaj Singhal,Akshay Sehgal, Advs. for the Appellant.

R. Basant, Sr. Adv., Suhaan Mukerji, Ms. Astha Sharma, AmitDVerma, Prastut Dalvi, Akshay Sahay, Ms. Kajal Dalal, AbhishekManchanda, 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 bythe 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 theFAdditional District and Sessions Judge, Fast Track Court, Calcuttarejecting an application filed by the Appellant herein, the de factoComplainant 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 PrakashGMurarka (“the deceased”), who is alleged to have been stabbed andmurdered by Respondent No. 2 herein on 16.01.2014. The Appellant isalso said to have sustained serious injuries while trying to save herhusband. Bowbazar Police Station Case No. 19 of 2014 came to beregistered against Respondent No. 2 and on 18.12.2015, charges was H

framed against him for the commission of offences punishable underSections 302 and 326 of the Indian Penal Code, 1860. Respondent No. 2pleaded not guilty and the trial began before the Sessions Court.

3.2 While the evidence was being recorded, the Appellant soughtan expeditious trial of the case vide C.R.R. No. 833 of 2016, which wasallowed on 09.03.2016. Subsequently, on 10.07.2018, she filed anotherapplication under Section 301 read with the proviso to Section 24(8) ofthe Code of Criminal Procedure, 1973 (“the CrPC”) praying for thefollowing reliefs:

“(a) to advance oral argument in support of question of law andfact only after the learned Public Prosecutor, if so required; (b) to raise objection in case any irrelevant question is put to anyprosecution witness, if so required;

(c) to examine the prosecution witnesses only after the learnedPublic Prosecutor, if so required; (d) to cross-examine the defence witnesses, if adduced, only afterthe 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 itmay deem fit and proper.”

3.3 Vide order dated 25.07.2018, the learned Additional Districtand Sessions Judge, Fast Track Court, Calcutta rejected the said prayer.This was done on the basis that the right of a victim or private individualto participate in the prosecution of a Sessions trial is restricted, and theprosecution is subject to the control of the Public Prosecutor. It wasobserved that Section 301 of the CrPC does not have an overridingeffect over Section 225, which mandates that the prosecution beconducted by the Public Prosecutor. However, in view of Section 301(2)of the CrPC, the learned Judge gave permission to the de factoComplainant to furnish written arguments after the completion of thearguments of the prosecution.

3.4 This order was challenged before the Hon’ble High Court ofCalcutta in C.R.R. No. 2357 of 2018. Vide the impugned judgment dated29.07.2019, the High Court affirmed the order of the Sessions Judge,discussing the crucial role played by the Public Prosecutor in a Sessions A

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Atrial. Alluding to Section 225 of the CrPC, it was held that the mandatetherein that a Sessions trial shall be conducted by a Public Prosecutor isunequivocal and cannot be diluted by the proviso to Section 24(8), whichallows the victim to engage a counsel to assist the prosecution. Drawinga distinction between assisting the prosecution and conducting it, theHigh Court took note of instances where allowing a free hand to theBvictim’s counsel may hamper the prosecution’s case and impact thefairness of the trial. In view of this, it was held that the request of thevictim’s counsel to cross-examine the defence witnesses after the PublicProsecutor could not be allowed. Accordingly, C.R.R. No. 2357 of 2018was dismissed. Hence, this appeal.

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4. Learned Senior Counsel for the Appellant drew our attention tothe relevant provisions in the CrPC, i.e. Sections 301 and 302, the provisoto Section 24(8) and Section 2(w)(a). He argued that these provisionsshould be read together, and Section 301 should not be read as a bar toSection 24(8) so as to limit the role of the victim’s counsel to mere filingDof written arguments. Alluding to the Report of the Malimath Committeeon Reforms of Criminal Justice System, 2003 and that of the MadhavMenon Committee on Victim Orientation to Criminal Justice, 2007, heemphasized how victims had been neglected in the criminal justice system.He argued that the 2009 amendment introducing the proviso to Section24(8) to the CrPC was made in this context, so as to account for instancesEwhere the Public Prosecutor may shirk his responsibility or make anomission by oversight. Relying on the decisions of several High Courtsin 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, UmaFSaha v. State of Tripura 2014 SCC OnLine Tri 859, Suneel KumarSingh v. State of Uttar Pradesh 2019 SCC OnLine All 957, andKhumukcham Nikita Devi v. State of Manipur (2017) 176 AIC 839,he argued that the role of the victim’s counsel should extend to puttingquestions to victims, raising objections to irrelevant questions put by thePublic Prosecutor, and making oral arguments in addition to those madeGby the Public Prosecutor.

5. Per contra, learned Senior Counsel for Respondent No. 1, theState of West Bengal, emphasized that a crucial role has been envisagedfor a Public Prosecutor under the scheme of the CrPC. He submitted H

that the Public Prosecutor is an officer of the Court and a minister ofjustice, as evident from the mandate placed upon him under Section 225of the CrPC to conduct a Sessions trial. He argued that the role of sucha person cannot be diluted by allowing the victim’s counsel, who may berelatively inexperienced at times, to conduct the prosecution with a freehand. Further, he argued that the use of the words “under this sub-section” in the proviso to Section 24(8) implies that the engagement ofa 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 regardsthe 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 limitedrole for the victim’s counsel. At the same time, acknowledging the reasonsfor ensuring greater participation of the victim in the prosecution, hesubmitted that the extent of the counsel’s assistance should be limitedand subject to the permission of the Public Prosecutor. In this regard, herelied on the decision of the Tripura High Court in Uma Saha v. State ofTripura, 2014 SCC OnLine Tri 859 and submitted that in instances wherean issue of importance is raised by the victim’s counsel, such as thePublic Prosecutor failing to examine or cross-examine a witness properly,the victim’s counsel can suggest some questions to the Court, whichmay 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 beconsidered is the extent to which a victim’s counsel can participate inthe prosecution of a case. Since this is closely tied with the role that isenvisaged for the Public Prosecutor, we will first deal with the same.

8. In our criminal justice system, the Public Prosecutor occupiesa position of great importance. Given that crimes are treated as a wrongagainst the society as a whole, his role in the administration of justice iscrucial, as he is not just a representative of the aggrieved person, butthat of the State at large. Though he is appointed by the Government, heis not a servant of the Government or the investigating agency. He is anofficer of the Court and his primary duty is to assist the Court in arrivingat the truth by putting forth all the relevant material on behalf of theprosecution. While discharging these duties, he must act in a manner AB

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Athat is fair to the Court, to the investigating agencies, as well to theaccused. This means that in instances where he finds material indicatingthat the accused legitimately deserves a benefit during the trial, he mustnot conceal it. The space carved out for the Public Prosecutor is clearlythat of an independent officer who secures the cause of justice and fairplay in a criminal trial.B

9. In light of this exposition, we find it useful to advert to certainprovisions of the CrPC that highlight the role of a Public Prosecutor andthe prerequisites for a person holding that office, most significant amongstwhich is Section 24:

C“24. Public Prosecutors-– (1) For every High Court, the CentralGovernment or the State Government shall, after consultation withthe High Court, appoint a Public Prosecutor and may also appointone or more Additional Public Prosecutors, for conducting in suchCourt, any prosecution, appeal or other proceeding on behalf ofthe Central Government or State Government, as the case mayDbe…

(7) A person shall be eligible to be appointed as a Public Prosecutoror an Additional Public Prosecutor…only if he has been in practiceas 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 hasbeen in practice as an advocate for not less than ten years as aSpecial Public Prosecutor.

Provided that the Court may permit the victim to engage an-Fadvocate 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 everyGtrial before a Court of Session, the prosecution shall be conductedby a Public Prosecutor.

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301. Appearance by Public Prosecutors– (1) The PublicProsecutor or Assistant Public Prosecutor in charge of a case H

may appear and plead without any written authority before anyCourt in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader toprosecute any person in any Court, the Public Prosecutor orAssistant Public Prosecutor in charge of the case shall conductthe prosecution, and the pleader so instructed shall act thereinunder the directions of the Public Prosecutor or Assistant PublicProsecutor, and may, with the permission of the Court, submitwritten arguments after the evidence is closed in the case.

302. Permission to conduct prosecution– (1) Any Magistrateinquiring into or trying a case may permit the prosecution to beconducted by any person other than police officer below the rankof Inspector; but no person, other than the Advocate-General orGovernment Advocate or a Public Prosecutor or Assistant PublicProsecutor, shall be entitled to do so without such permission…

(2) Any person conducting the prosecution may do so personallyor by a pleader.”

10. From a reading of these provisions, it is clear that a PublicProsecutor is entrusted with the responsibility of conducting theprosecution of a case. That this is a crucial role is evident from conditionssuch as in Section 24(7), which stipulates a minimum legal experience ofseven years for a person to be eligible to be a Public Prosecutor. It isfurther clear from a joint reading of Section 301 and the proviso to Section24(8) that the two provisions are mutually complementary. There is nobar 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 forRespondent No. 1, we do not find that the use of the words “under thissub-section” in the proviso to Section 24(8) implies that a victim’s counselcan only be engaged to assist a Special Public Prosecutor. Such aninterpretation would go against Section 301(2), which makes the pleaderinstructed by a private person subject to the directions of the PublicProsecutor or the Assistant Public Prosecutor. In our considered opinion,a harmonious reading should be given to these provisions to give themfull effect. Furthermore, credence should be given to the overall emphasison victimology underlying the 2009 Amendment Bill, as reflected in itsStatement of Objects and Reasons:

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A “Statement of Objects and Reasons.– The need to amend theCode of Criminal Procedure, 1973 to ensure fair and speedy justiceand to tone up the criminal justice system has been felt for quitesometime. The Law Commission has undertaken a comprehensivereview of the Code of Criminal Procedure in its 154[th] Report andits recommendations have been found very appropriate, particularlyBthose relating to provisions concerning… victimology…

2. … At present victims are the worst sufferers in a crime andthey don’t have much role in the Court proceedings. They need tobe given certain rights and compensation so that there is nodistortion of the criminal justice system.”

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In view of this context and the provisions of the CrPC, thereappears to be no justifiable basis for applying the provision only withrespect to Special Public Prosecutors. Thus, we find that the assistancegiven by the victim’s counsel is meant to be given to the prosecution ingeneral.D

12. In light of this, we now proceed to consider the extent towhich such assistance can be accorded. As mentioned supra, learnedSenior Counsel for the Appellant has argued that there may be instanceswhere the Public Prosecutor may fail to perform his functions properly,whether deliberately or due to oversight, which may obstruct justiceEinstead of furthering it. To meet the ends of justice in such cases, hesubmitted that the role of the victim’s counsel should not be limited tofiling of written arguments as provided with respect to pleaders engagedby private parties under Section 301(2). Instead, it should extend tomaking oral arguments and examining witnesses as well. On a perusalFof 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 begiven 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 aGsecondary role qua the Public Prosecutor. This is supported by the factthat the original Amendment Bill to the CrPC had used the words “co-ordinate with the prosecution”. However, a change was later proposedand in the finally adopted version, the words “co-ordinate with” weresubstituted by “assist”. This change is reflective of an intention to onlyassign a supportive role to the victim’s counsel, which would also be in H

consonance with the limited role envisaged for pleaders instructed byprivate persons under Section 301(2). In our considered opinion, amandate that allows the victim’s counsel to make oral arguments andcross-examine witnesses goes beyond a mere assistive role, andconstitutes a parallel prosecution proceeding by itself. Given the primacyaccorded to the Public Prosecutor in conducting a trial, as evident fromSection 225 and Section 301(2), permitting such a free hand would goagainst the scheme envisaged under the CrPC.

12.2 In some instances, such a wide array of functions may alsohave adverse consequences on the fairness of a trial. For instance, theremay be a case where the Public Prosecutor may make a strategic call toexamine some witnesses and leave out others. If the victim’s counselinsists upon examining any of the left out witnesses, it is possible that theevidence so brought forth may weaken the prosecution case. If given afree hand, in some instances, the trial may even end up becoming avindictive battle between the victim’s counsel and the accused, whichmay further impact the safeguards put in place for the accused in criminaltrials. These lapses may be aggravated by a lack of advocacy experienceon the part of the victim’s counsel. In contrast, such dangers would notarise in the case of a Public Prosecutor, who is required to haveconsiderable experience in the practice of law, and act as an independentofficer of the Court. Thus, it is important to appreciate why the role of avictim’s counsel is made subject to the instructions of the PublicProsecutor, who occupies a prime position by virtue of the increasedresponsibilities shouldered by him with respect to the conduct of a criminaltrial.

12.3 At the same time, the realities of criminal prosecutions, asthey are conducted today, cannot be ignored. There is no denying thatPublic Prosecutors are often overworked. In certain places, there maybe a single Public Prosecutor conducting trials in over 2-3 courts. Thus,the possibility of them missing out on certain aspects of the case cannotbe ignored or discounted. A victim-centric approach that allows forgreater participation of the victim in the conduct of the trial can go a longway in plugging such gaps. To this extent, we agree with the submissionmade by the learned Senior Counsel for the Appellant that the introductionof the proviso to Section 24(8) acts as a safety valve, inasmuch as thevictim’s counsel can make up for any oversights or deficiencies in the AB

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Aprosecution case. Further, to ensure that the right of appeal accorded toa victim under the proviso to Section 372 of the Cr.P.C. is not renderedmeaningless due to the errors of the Public Prosecutor at the trial stageitself, we find that some significant role should be given to the victim’scounsel while assisting the prosecution. However, while doing so, thebalance inherent in the scheme of the CrPC should not be tamperedBwith, and the prime role accorded to the Public Prosecutor should not bediluted.

12.4 In this regard, given that the modalities of each case aredifferent, we find that the extent of assistance and the manner of givingit would depend on the facts and circumstances of each case. ThoughCwe cannot detail and discuss all possible scenarios that may arise duringa criminal prosecution, we find that a victim’s counsel should ordinarilynot be given the right to make oral arguments or examine and cross-examine witnesses. As stated in Section 301(2), the private party’s pleaderis subject to the directions of the Public Prosecutor. In our consideredDopinion, the same principle should apply to the victim’s counsel under theproviso to Section 24(8), as it adequately ensures that the interests ofthe victim are represented. If the victim’s counsel feels that a certainaspect has gone unaddressed in the examination of the witnesses or thearguments advanced by the Public Prosecutor, he may route anyquestions or points through the Public Prosecutor himself. This wouldEnot only preserve the paramount position of the Public Prosecutor underthe scheme of the CrPC, but also ensure that there is no inconsistencybetween the case advanced by the Public Prosecutor and the victim’scounsel.

12.5 However, even if there is a situation where the PublicFProsecutor fails to highlight some issue of importance despite it havingbeen suggested by the victim’s counsel, the victim’s counsel may still notbe given the unbridled mantle of making oral arguments or examiningwitnesses. This is because in such cases, he still has a recourse bychannelling his questions or arguments through the Judge first. ForGinstance, if the victim’s counsel finds that the Public Prosecutor has notexamined a witness properly and not incorporated his suggestions either,he may bring certain questions to the notice of the Court. If the Judgefinds merit in them, he may take action accordingly by invoking his powersunder Section 311 of the CrPC or Section 165 of the Indian EvidenceAct, 1872. In this regard, we agree with the observations made by theH

Tripura High Court in Smt. Uma Saha v. State of Tripura (supra) thatthe victim’s counsel has a limited right of assisting the prosecution, whichmay extend to suggesting questions to the Court or the prosecution, butnot putting them by himself.

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13. In view of the foregoing discussion, we find that the HighCourt was correct in dismissing the application made by the AppellantBseeking permission for her counsel to cross-examine witnesses after thePublic Prosecutor. However, in future, if the Sessions Judge finds thatthe assistance of a private counsel is necessary for the victim, he maypermit it keeping in mind the observations made supra. The instant appealis disposed of accordingly.

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Appeal disposed of.

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