ORAL ORDER

[1.0] RULE. Learned APP waives service of notice of Rule for and on behalf of the respondent No.1 – State of Gujarat.

[2.0] By way of present petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, the petitioner has prayed for the following reliefs:

“Your Lordships may be pleased to allow this Special Criminal Application by quash and set aside the impugned Exh.08 order passed by the Ld. Civil Judge (JMFC), Vichhiya, vide order dated 25.10.2023 in Criminal Case No.363 of 2023, accordingly pleased to pass an order to grant to join the petitioner with his private council with the prosecution and assist the public prosecutor;”

[3.0] Heard learned advocates appearing for the respective parties.

[4.0] It is the case of the petitioner that petitioner is the original complainant of FIR being CR No.11213068230161 of 2023 with Vichhiya Police Station, Rajkot Rural for the offences under Sections 325, 324, 504 and 114 of the Indian Penal Code, 1860 and under Sections 37(1) and 135 of the Gujarat Police Act. After the investigation, charge-sheet came to be filed but it was the grievance on the part of the petitioner that some sections are not added and offence is not properly investigated and even the learned Public Prosecutor has also not taken proper care. In view of the above, the petitioner wants to engage an Advocate and therefore, filed an application Exh.08 which came to be dismissed by the learned Judicial Magistrate First Class, Vichhiya, vide order dated 25.10.2023.

Hence, present petition is filed.

[5.0] At the outset it is worth to mention that victim / complainant has right to participate in trial at every stage considering the definition of ‘victim’ as defined in section 2(wa) of the CrPC. Even, the Hon’ble Supreme Court in the case of Rekha Murarka vs. State of West Bengal and Another reported in (2020)2 SCC 474 was pleased to observe as follows:

"11.5. 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 CrPC or Section 165 of the Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Uma Saha v. State of Tripura [Uma Saha v. State of Tripura, 2014 SCC OnLine Tri 859] 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."

[6.0] In view of the aforesaid discussion and in view of the decision of the Hon’ble Supreme Court in the case of Rekha Murarka (Supra), present petition is allowed. Resultantly, impugned order dated 25.10.2023 passed below application Exh.08 in Criminal Case No.363 of 2023 passed by the learned Judicial Magistrate First Class, Vichhiya is hereby quashed and set aside and the petitioner is permitted to file appearance of his Advocate and to assist the learned APP through his private Advocate and the learned Magistrate to accept the Vakalatnama and permitted to participate in the trial in light of the observations made in paragraph 11.5 of the decision of Hon’ble Supreme Court in the case of Rekha Murarka (Supra). Rule is made absolute to the aforesaid extent. Direct service is permitted.

(HASMUKH D. SUTHAR, J.)

Ajay