Through its judgment in Rekha Murarka v. State of W.B.,1 the Supreme Court of India has attempted to strike a balance between the victim’s right to participation and the rights of the accused. The judgment is at once a cause of celebration as well as a cause of concern. Whereas on the one hand, the Supreme Court has closed a legal door on the victim’s participation, on the other hand it has opened up a significant avenue. Overall, the judgment undoubtedly furthers the ambiguity in the position of the victim’s right to participate in our criminal justice system. This post attempts to objectively uncover this ambiguity, if not resolve it.
Summarily, the Court has refused the right of a private counsel engaged by the victim to cross-examine the witness or to make oral arguments in general. Its interpretation is based on a conjoined reading of Sections 24(8)2 and 301(2)3 of the Code of Criminal Procedure, 1973 (CrPC). The Court proffers that the term “assist” used in Section 24(8) CrPC cannot be so interpreted as to mean a conduct of prosecution by the private counsel. The task of prosecution remains suited to a Public Prosecutor alone.
The Court’s reasoning can be faulted on several grounds. Firstly, the Court assumes that the right of the victim’s counsel to participate in the trial is a zero-sum game between the Prosecutor and the counsel. It extends the assumption to an extremity by implying that any oral arguments or cross-examination of witnesses would tantamount to taking over the prosecution itself. In its reasoning, the Court does not take into account the numerous other permutations and combinations of victim participation that exist between the victim having no say at all and the victim’s counsel taking over the function of the Prosecutor. As the procedure in the International Criminal Court, however, goes on to show, the concerns of the victims can be taken into account by the court at several stages of the trial without any prejudice to either the accused or the prosecutor’s discharge of his functions.
Secondly, the instances cited by the Court in support of its reasoning highlight the abovementioned assumption. The Court holds that the victim’s counsel cannot be allowed to make oral arguments or cross-examine victims because it may lead to a weakening of the prosecution’s case; or that the trial may devolve into a vindictive battle between the counsel of the victim and the accused; or the victim’s advocate may not be experienced enough to advocate on the victim’s behalf. These hypotheticals betray the Court’s lack of faith in the victim’s advocate. The Court does not envision the role of the victim’s counsel to be one based on cooperation and collaboration in securing justice, but instead assumes that the victim’s advocate would necessarily be petty and “vindictive”.
Thirdly and corollary to the above, the judgment displays the faith of the Court in the office of Public Prosecutor and indeed, the same is well placed to a large extent. The Court should not, however, have ignored the plight of the victim in the process. It was with the intention to secure a greater say for the victim that Section 2(wa)4 and Section 24(8) proviso5 CrPC were introduced within our criminal justice system. Irrespective of the faith of the Court, the prosecution cannot be substituted for a private counsel that works to secure the interests of the victim. The statutory promise of Section 301(2) CrPC in allowing written arguments after the closing of evidence is hardly enough to secure effective participation of the victim. From this perspective, the judgment is a setback to the cause of securing justice for the victims.
Fourthly, even if we were to agree with the reasoning that allowing oral arguments or cross-examination will tantamount to the prosecution being overtaken by the victim’s counsel, it is certainly not unheard of or completely impermissible within the scheme of our criminal justice system. Whereas Section 301(2) CrPC is applicable to “any court”, Section 3026 allows for the prosecution to be conducted by any person or a pleader engaged by such person with the permission of the Magistrate’s Court. Principally speaking, it is dichotomous that such prosecution prejudicially affects the right of the accused in a Court of Session but has no such adverse effects on the rights of the accused in a Magistrate’s Court.
Despite the abovementioned flaws, a careful perusal of the final paragraphs of the judgment illuminates an oscillation from regression to progression. In Zahira Habibulla H. Sheikh v. State of Gujarat7 the Court had held that where the prosecuting agency or the Prosecutor was not acting in the requisite manner, the use of Section 311 CrPC8 to summon material witnesses and to examine them was warranted by the courts. In the impugned case, the court extended this principle, by granting the victim’s counsel the right to channel their questions and arguments through the court under Section 311 CrPC and Section 165 of the Evidence Act9 (IEA). In this respect, the Court remarks that:
11.5. …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, 1872.10
In Rekha Murarka case11, the Supreme Court has given a judicial stamp of approval to this earlier decision. To an extent, the judgment unsettles the jurisprudence established by the case of Mohanlal Shamji Soni v. Union of India,12 that the Court should not use Section 311 CrPC to fill a lacuna left by the prosecution.
More importantly, however, this change in the jurisprudence of Section 311 CrPC is bound to have far-reaching implications for victim justice generally. Under the previous scheme of victim participation, the only avenue available for the victim’s counsel to participate in the proceedings was under Section 301(2) CrPC wherein the counsel could make only written statements after the closing of evidence. Section 311 CrPC, on the other hand, can be invoked by the court at any stage of the inquiry, trial or other proceeding under CrPC. By extension, the Supreme Court has now expressly permitted the victim’s counsel to request the court to invoke Section 311 CrPC and summon/examine material witnesses at any of the stages mentioned above.
There are a plethora of decisions13 of the Supreme Court casting a duty upon the courts for invoking Section 311 CrPC to secure justice; however, the manifest permission to use Section 311 CrPC in order to secure victim justice is certainly a breath of fresh air. If the same translates into practice, this development has the potential to secure an unprecedented victory for the victim’s advocates. For the above to have an effective impact on securing victim’s participation, however, much publication and dissemination of this precedent is required.
* Assistant Professor of Law, Rajiv Gandhi National University of Law, Punjab, BA LLB (Hons.), LLM (Criminal Law and Constitutional Law). Author can be reached at <email@example.com>.
1. (2020) 2 SCC 474.
7. (2004) 4 SCC 158.
11. (2020) 2 SCC 474.