24. Public Prosecutors

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of classes, 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 sub-section.”

Because of the aforesaid provision, if a private person is aggrieved by the offence committed against him or against anyone in whom the victim is interested, he or she can approach the Magistrate and seek permission toA Lex Witness Privileged Partners Initiative March 2020 | Lex WITNESS | 35 conduct the prosecution. It is open to the Court to consider his request and if the cause of justice would be better served by granting such permission the Magistrate Court would generally grant such permission. However, the aforesaid width/scope of the right of such a private person or participate in the conduct of prosecution in Session Court is restricted and is in the control of Public Prosecutor.

There is a monumental development in the jurisprudence of victimology, in the case of Dhariwal Industries Ltd. Vs. Kishore Wadhwani & Ors. – (2016) 10 SCC 378 the Hon’ble Supreme Court consider the law laid down in the case of JK International Vs. State (Govt of NCT of Delhi) & Ors. – (2001) 3 SCC 462 and Subash Chandran Vs. State of Kerala – 1984 Cri LJ 499 had held that a private person can be permitted to conduct the prosecution in the Magistrate Court and can engage a Counsel to do the needful on his behalf. The Hon’ble Supreme Court further held that the role of the victim as a private party is limited during the prosecution of a case in a Session Court. The Counsel engaged by him/her is required to act under the directions of the Public Prosecutor. However, under Section 302 of the Cr.PC, the power is conferred on the Magistrate to grant permission to the Complainant to conduct the prosecution independently. It is appropriate to state that when the trial is before the Magistrate Court the scope of any other private person intending to participate in the conduct of the prosecution is much wider.

The Hon’ble Supreme Court in the case of Mallikarjun Kodagali Vs. State of Karnataka – (2019) 2 SCC 752 dealt with the Report of Justice Malimath Committee on Reforms of Criminal Justice System, 2003, Professor Madhava Menon Committee on Victim Orientation to Criminal Justice, 2007 and 221st Law Commission Report and observed as under:-

“16. Thereafter, in the substantive chapter on Justice to Victims, it is noted that victims of crime, in many jurisdictions, have the right to participate in the proceedings and to receive compensation for injury suffered. It was noted as follows:

Basically two types of rights are recognised in many jurisdictions, particularly in continental countries in respect of victims of crime. They are, firstly, the victim’s right to participate in criminal proceedings (right to be impleaded, right to know, right to heard and right to assist the court in the pursuit of truth) and secondly, the right to seek and receive compensation from the criminal court itself for injuries suffered as well as appropriate interim reliefs in the course of proceedings’. ”

The Magistrate is not bound to grant permission at the mere asking but the victim has a right to assist the Court in a trial before the Magistrate. The Magistrate may consider whether the victim is in a position to assist the Court and as to whether the trial does not involve such complexities that cannot be handled by the victim. On satisfaction of such facts, the Magistrate would be within his jurisdiction to grant permission to the victim to take over the inquiry of the pendency before the Magistrate. (Amir Hamza Shaikh & Ors. Vs. State of Maharashtra & Anr. – (2019) 8 SCC 387).

The Hon’ble Supreme Court in the case of Rekha Murarka Vs. State of West Bengal – Crl. Appeal No. 1727/2019 decided on 20.11.2019 held that a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross¬ examine witnesses, as stated in Section 301(2), the role of private party’s pleader is subject to the directions of the Public Prosecutor. The Court further held that the same principle should apply to the victim’s counsel under the proviso to Section 24(8), as it adequately ensures that 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 and 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 bring certain questions to the notice of the Court. If the Judge finds merit in them, the Court may take action accordingly by invoking his powers under Section 311 of the Cr.PC or Section 165 of the Indian Evidence Act, 1872.

Though, there is a great leap forward in the recognition of the right of a victim to participate in the criminal proceedings and right to seek compensation from the Criminal Court for injuries suffered and/or other appropriate reliefs but still thumping voice required to be given to the victim. If we circle and recircle the relevant provisions and law, it is crystal clear that we cannot give holistic justice to victims of crime until and unless we allow them as a matter of right to participate in a criminal proceeding as well as seek compensation for injury.