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2019 Supreme(Cal) 933
IN THE HIGH COURT OF CALCUTTA
Madhumati Mitra, J.
Rekha Murarka – Appellant
Versus
State of West Bengal and Others – Respondents
Criminal Revision No. 2357 of 2018
Decided On : 29-07-2019
Advocate Appeared:
Ayan Bhattacharyee, Adv., Sharequl Haque, Adv., Sudip Ghosh, Adv., Apurba Kumar Datta, Adv., Malay Bhattacharya, Adv., Subhrojyoti Ghosh, Adv.
The Code of Criminal Procedure gives the authority to the Public Prosecutor to conduct the trial of a session case, while the victim has the right to assist the prosecution through their advocate. The right of the victim to engage an advocate does not extend to conducting the prosecution.
Headnote:
Code of Criminal Procedure - The Code of Criminal Procedure gives the authority to the Public Prosecutor to conduct the trial of a session case. Section 225 states that every trial before a Court of Session shall be conducted by a Public Prosecutor. Section 24(8) allows the victim to engage an advocate to assist the prosecution with the permission of the Court. The right of the victim to engage an advocate is based on the principle of providing assistance to the Public Prosecutor, not conducting the prosecution. The Court analyzed the relevant provisions and held that the right of the victim to assist the prosecution does not extend to conducting the prosecution.
Fact of the Case:
The petitioner, widow of the deceased, filed an application to set aside an order passed by the Trial Judge in a murder case. The petitioner sought various reliefs to protect her rights as a victim and to ensure a fair trial. The Trial Judge rejected the petitioner's prayer, stating that the right of the victim to participate in the prosecution is restricted and subject to the control of the Public Prosecutor. The petitioner challenged the order on several grounds, arguing that the right of the victim to engage an advocate and take an active role in the trial has been recognized by statutory amendments to the Code of Criminal Procedure. The State argued that the Trial Judge rightly refused the petitioner's prayer, as the right to assist the prosecution is different from the right to conduct the prosecution. The Court examined the relevant provisions of the law and held that the Code of Criminal Procedure gives the authority to the Public Prosecutor to conduct the trial of a session case, while the victim has the right to assist the prosecution through their advocate. The Court concluded that the Trial Judge rightly rejected the petitioner's prayer, as it was contrary to the statutory provision. The Court dismissed the revisional application, finding no reason to interfere with the impugned order.
Finding of the Court:
The Court analyzed the relevant provisions of the Code of Criminal Procedure and the role of the Public Prosecutor in conducting the trial. The Court emphasized the importance of fair play in criminal proceedings and the responsibility of the Public Prosecutor to place all relevant facts before the Court. The Court held that the right of the victim to assist the prosecution does not extend to conducting the prosecution, which is the exclusive authority of the Public Prosecutor. The Court also discussed the potential bias and possibility of miscarriage of justice if the victim's advocate is allowed to cross-examine defense witnesses after the prosecution's cross-examination. The Court concluded that the Trial Judge rightly rejected the petitioner's prayer, as it was in line with the statutory provision and the principle of fair play in criminal trials.
Ratio Decidendi: The Code of Criminal Procedure gives the authority to the Public Prosecutor to conduct the trial of a session case, while the victim has the right to assist the prosecution through their advocate. The right of the victim to engage an advocate does not extend to conducting the prosecution. The role of the victim's advocate is to assist the Public Prosecutor on facts and law, if required. The Trial Judge rightly rejected the petitioner's prayer, as it was contrary to the statutory provision and the principle of fair play in criminal trials.
Result: The revisional application is devoid of merit and stands dismissed.
Key Points: - The Code of Criminal Procedure grants authority to the Public Prosecutor to conduct session trials; the victim may assist via an advocate, not conduct (!) (!) (!) (!) (!) . - Sub-section 24(8) and proviso allow the Court to permit a victim to engage an advocate to assist the prosecution, but this does not permit the victim to conduct the prosecution; cross-examination roles and potential bias are discussed (!) (!) (!) (!) (!) . - The court held that the Trial Judge rightly rejected the victim’s prayer to participate actively in prosecution or to cross-examine after the prosecution, concluding that the right to assist is limited and that the Public Prosecutor must conduct proceedings; the revisional application is dismissed (!) (!) (!) (!) . - The judgment emphasizes fair play, independence of the Public Prosecutor, and potential miscarriage of justice if private advocates conduct the prosecution (!) (!) (!) (!) (!) . - The decision cites multiple authorities to support the distinction between right to assist and right to conduct, and reaffirms statutory provisions restricting victim participation to assisting the prosecution with court permission (!) (!) (!) (!) (!) .
What is the role of the Public Prosecutor in conducting a session trial and the rights of the victim to assist the prosecution?
What are the legal limits on a victim's right to engage an advocate and participate in the prosecution during a session trial?
What is the court’s conclusion regarding the petition to allow the victim to conduct aspects of the prosecution and the resulting dismissal of the revision?
JUDGMENT :
Madhumati Mitra, J.
This is an application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 filed by the present petitioner Rekha Murarka, widow of Gyan Prakash Murarka praying for setting aside the order no.70 dated 25th July, 2018 passed by the learned Additional District and Sessions Judge, Fast Track Court, Calcutta in Sessions Case No.43 of 2014 corresponding to GR Case No.86 of 2014 arising out of Bowbazar Police Station Case No.19 of 2014 dated 16th January, 2014 under Sections 302/ 326 of the Indian Penal Code.
2. The facts which are necessary to dispose of the present revisional application are as follows :-
3. The petitioner before this Court is the widow of deceased Gyan Prakash Murarka. The said husband of the petitioner was alleged to have been brutally murdered with knife by opposite party no.2 and the petitioner was also sustained serious bleeding injuries when she had tried to save her husband. The alleged incident occurred on 16.1.2014. A specific case being Bowbazar Police Station Case No.19 of 2014 dated 16.2.2014 under sections 302/326 of the Indian Penal Code was initiated against the present opposite party no.2. Charge sheet was submitted against the opposite party no.2 for commission of alleged offences under Sections 302/326 of the Indian Penal Code. On 18.12.2015, charge was framed against the accused/opposite party no.2 for commission of alleged offences punishable under Sections 302/326 of the Indian Penal Code. Opposite party no.2 pleaded not guilty and claimed to be tried. Thereafter, learned Trial Judge proceeded to record the evidence of prosecution witnesses. In the meantime, the present petitioner approached before this Court for expeditious trial of the case. On 9.3.2016 in CRR 833 of 2016, the learned Trial Judge was directed to conduct the trial as expeditiously as possible in terms of the provision of Section 309 of the Code of Criminal Procedure and conclude the same as early as possible.
4. On 10.7.2018, the de facto complainant filed an application under Section 301 read with Section 24(8) of the Code of Criminal Procedure praying for following reliefs as appeared in the said petition filed before the learned Court below:-
(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;
(c) To examine the prosecution witnesses only after the Learned Public Prosecutor, if so required;
(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/orders and/or direction or directions as it may deem fit and proper."
5. Learned Trial Judge after affording opportunity of being heard to all the parties to the case has rejected the said prayer of the present petitioner on the ground that the right of the victim/private individual to participate in the prosecution of the Sessions trial is very much restricted and prosecution is subjected to the control of the Public Prosecutor. Learned Judge in support of his decision has placed reliance on a decision reported in 2001 SCC (CRI) 547.
6. At the time of passing the impugned order the learned Trial Judge has given permission to the de facto complainant to furnish written argument only after the completion of argument from the prosecution side.
7. The said order of the learned Trial Judge is under challenge.
8. The impugned order has been assailed by the learned Advocate for the petitioner on several grounds. He has contended that the learned Trial Judge has failed to appreciate that the petitioner is not only the de facto complainant but she is also the victim of the crime within the meaning of Section 2(wa) of the Code of Criminal Procedure. According to his contention the concept of victimology has bee
