Section 24(8) of The Code of Criminal Procedure, 1973

The use of the term ‘assist’ in the proviso to Section 24(8) of The Code of Criminal Procedure, 1973 is crucial, and implies that the Victim’s Counsel is only intended to have a secondary role qua the Public Prosecutor. In our considered opinion, a mandate that allows the Victim’s Counsel to make oral arguments and cross­-examine 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, permitting such a free hand would go against the scheme envisaged. In some instances, such a wide array of functions may also have adverse consequences. The trial may even end up becoming a vindictive battle. Such dangers would not arise in the case of a Public Prosecutor, who is required to have considerable experience.

There is no denying that Public Prosecutors are often overworked. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victim-­centric 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 that the introduction of the proviso to Section 24(8) acts as a safety valve, inasmuch as the Victim’s Counsel can make up for any oversights or deficiencies. We find that some significant role should be given to the Victim’s Counsel while assisting. 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. We find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. We find that a Victim’s Counsel should ordinarily not be given the right to make oral arguments or examine and cross­-examine witnesses. 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 but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the Victim’s Counsel.

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 channeling his questions or arguments through the Judge first. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of CrPC or Section 165 of The Indian Evidence Act, 1872.”

Hon’ble Justice Mohan M. Shantanagoudar, Rekha Murarka v. The State of West Bengal, [Criminal Appeal No. 1727 of 2019].