Section 24(8) of the Criminal Procedure Code: Navigating Special Public Prosecutors and Victim Participation in India

Introduction

Section 24 of the Code of Criminal Procedure, 1973 (CrPC) governs the appointment of Public Prosecutors in India. Subsection (8) of Section 24 holds particular significance as it empowers the Central or State Government to appoint a Special Public Prosecutor (SPP) for the purposes of any case or class of cases. Furthermore, a pivotal proviso to this subsection, introduced by the Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009), effective from December 31, 2009, permits the court to allow the victim to engage an advocate of their choice to assist the prosecution. This article undertakes a comprehensive analysis of Section 24(8) CrPC, examining the jurisprudential principles guiding the appointment of SPPs, the evolving role and rights of victims in the prosecution process as facilitated by the proviso, and the interplay of this provision with other sections of the CrPC and judicial pronouncements. It draws upon a range of Supreme Court and High Court decisions to elucidate the scope, application, and implications of this multifaceted provision within the Indian criminal justice system.

The Statutory Framework: Section 24(8) CrPC and its Proviso

Section 24(8) of the CrPC states: "The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a legal practitioner who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor."

The proviso appended to Section 24(8) reads: "Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section."

This proviso was a significant legislative recognition of the victim's interest in the criminal trial process. As observed by the Madras High Court in Sathyavani Ponrani Petitioner v. Samuel Raj (2010), the proviso was introduced on the premise that while an offence is against the state, the victim also has a legitimate interest in the prosecution, and the court can grant permission to the victim to engage an advocate to assist (Sathyavani Ponrani, 2010 Madras HC).

Appointment of Special Public Prosecutors under Section 24(8)

Rationale and Purpose

The primary rationale behind empowering the government to appoint SPPs is to ensure effective prosecution in complex cases, matters of public importance, or situations where the regular Public Prosecutor may be overburdened or require specialized expertise. The Supreme Court in Mukul Dalal And Others v. Union Of India And Others (1988 SCC CRI 1 566) emphasized that the Public Prosecutor is an officer of the court and holds a public office. The appointment of an SPP should be made for valid reasons, ensuring that the prosecution remains fair and impartial. The Court indicated that the State should normally bear the expenses of the SPP, as appointing an SPP at the cost of a private complainant could compromise the independence of the prosecution (Mukul Dalal, 1988).

The Supreme Court in State Of Maharashtra And Others v. Prakash Prahlad Patil And Others (2009 SCC 12 159) noted that the appointment of an SPP to conduct a proceeding does not inherently cause prejudice to the accused. The decision to appoint an SPP is an administrative one, and judicial review is limited to ensuring the decision-making process is not vitiated by mala fides or arbitrariness (Prakash Prahlad Patil, 2009).

Role of the Complainant/Victim in SPP Appointment

While the power to appoint an SPP rests with the government, requests often emanate from the complainant or victim. The judiciary has scrutinized such appointments to ensure they serve the public interest. In Sri. Jagadish Chidanand Kore v. The State Of Karnataka (2008 Karnataka HC), the Karnataka High Court opined that an appointment under Section 24(8) should be made in the public interest and not merely because the complainant or an influential person seeks it. The Madras High Court in Workmen, Rep. By Genl. Secretary Addisons Paints & Chemicals Ltd., Assistants Association v. State Of Tamil Nadu (1998 Madras HC) observed that Section 24(8) (referring to the main clause) does not create an absolute right in the complainant to insist upon a particular person being appointed as an SPP, as it is the prerogative of the government.

However, instances where the victim or de facto complainant bears the fees of the SPP have been considered by courts. In G. Daniel v. Govt. Of A.P & Ors. (2003 Andhra Pradesh HC), an SPP was appointed with fees to be borne by the de facto complainant. The court reiterated that the prosecuting counsel's function is to assist the court in arriving at the truth, not merely to secure a conviction, even if fees are paid by a private party. Similarly, in Paras Kumar Jain And Another v. State Of M.P And Others (2012 SCC ONLINE MP 520), an SPP was appointed where the victim agreed to bear the expenses, and the court upheld the appointment after considering the procedural compliance.

Judicial Scrutiny of SPP Appointments

The accused has been recognized to have locus standi to challenge the appointment of an SPP on certain grounds. In Dodda Brahmanandam v. State Of A.P (1985 SCC ONLINE AP 175), the Andhra Pradesh High Court held that an accused can object to the appointment of a particular person as SPP under Section 24(8) on the ground of reasonable apprehension of bias. The court emphasized the duty of a public prosecutor to act impartially. The Supreme Court in Prakash Prahlad Patil (2009) cautioned against excessive judicial interference, stating that courts should not act as appellate authorities over such administrative decisions unless there is a clear miscarriage of justice or violation of legal limits.

The Proviso to Section 24(8): Victim's Right to Engage Counsel

Legislative Intent and Evolution of Victim Jurisprudence

The 2009 amendment introducing the proviso to Section 24(8) reflects a broader trend in Indian criminal jurisprudence towards recognizing and enhancing victims' rights. The Supreme Court in Jagjeet Singh And Others (S) v. Ashish Mishra Alias Monu And Another (2022 SCC ONLINE SC 453), while dealing with bail, extensively discussed the victim's right to be heard, as defined under Section 2(wa) of the CrPC. This evolving jurisprudence underscores the importance of victim participation at various stages of criminal proceedings. The Allahabad High Court in Brijesh Singh v. State Of U.P. (2016 Allahabad HC) noted that the proviso was inserted to provide an opportunity to victims to assist the prosecution, acknowledging that prior to this, victims had a more limited role despite being the worst sufferers of crime.

Scope and Nature of "Assistance" by Victim's Counsel

The crucial aspect of the proviso lies in the interpretation of the term "assist the prosecution." The Supreme Court in Rekha Murarka v. State Of West Bengal And Another (2019 SCC ONLINE SC 1495) provided a definitive interpretation. The Court held that the victim's counsel, engaged with the permission of the court under the proviso to Section 24(8), is to act in a supportive role to the Public Prosecutor. Their role is to assist and not to take over the prosecution. The Court clarified that this assistance could include suggesting questions to the court or the Public Prosecutor, making submissions on points of law after the Public Prosecutor, and filing written arguments. However, the victim's counsel does not have the right to conduct the examination-in-chief or cross-examination of witnesses independently, nor to make oral arguments without the Public Prosecutor's lead. The Court harmonized the proviso with Section 301 CrPC, which allows a pleader engaged by a private person to act under the directions of the Public Prosecutor (Rekha Murarka, 2019 SC).

This interpretation seeks to balance the victim's right to participate with the established principle of prosecutorial independence and the Public Prosecutor's primary responsibility in conducting the trial, as also emphasized in cases like Shiv Kumar v. Hukam Chand And Another (1999 SCC 7 467) regarding the role of the PP in Sessions trials under Section 225 CrPC.

The Allahabad High Court in Brijesh Singh (2016) also acknowledged that the proviso to Section 24(8) changed the scenario from the stricter confines of Section 301(2), allowing the victim's advocate, with court permission, to assist the prosecution more directly, though still in subordination to the Public Prosecutor.

Permission of the Court: A Mandatory Prerequisite

The engagement of an advocate by the victim to assist the prosecution under the proviso is explicitly subject to the permission of the Court. This judicial oversight is crucial to ensure that such assistance contributes constructively to the trial process and does not hinder or unduly influence the prosecution. As indicated in Sathyavani Ponrani (2010 Madras HC) and Brijesh Singh (2016 Allahabad HC), the court's satisfaction and permission are sine qua non for the victim's counsel to play an assisting role.

Interplay with Other Provisions and Judicial Interpretations

Section 301 CrPC: The Traditional Role of Private Counsel

Section 301 CrPC outlines the role of private counsel in prosecutions. Section 301(1) states that the Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. Section 301(2) stipulates that if in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. The Supreme Court in Dhariwal Industries Limited v. Kishore Wadhwani And Others (2016 SCC ONLINE SC 935) and Shiv Kumar v. Hukam Chand (1999) clarified the limited role of such private counsel, emphasizing their subordination to the Public Prosecutor. The ruling in Rekha Murarka (2019 SC) integrated the proviso of Section 24(8) with this framework, maintaining the Public Prosecutor's control while allowing for structured assistance from the victim's counsel.

Section 225 CrPC: Prosecution in Sessions Court

Section 225 CrPC mandates that in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. This provision underscores the state's responsibility and the Public Prosecutor's exclusive domain in conducting trials in Sessions Courts. The interpretation of the proviso to Section 24(8) by Rekha Murarka (2019 SC) ensures that this principle is not diluted, as the victim's counsel assists but does not "conduct" the prosecution.

The Public Prosecutor's Primacy

The consistent thread in judicial pronouncements is the maintenance of the Public Prosecutor's primacy in conducting the prosecution. This is rooted in the understanding that the Public Prosecutor acts on behalf of the State, representing the public interest, and is expected to be fair and impartial to both the prosecution and the accused (Shiv Kumar v. Hukam Chand, 1999; K. Anbazhagan v. State Of Karnataka And Others, 2015 SCC 6 158). The assistance provided by the victim's counsel under Section 24(8) proviso is therefore structured to support, not supplant, this primary role.

Challenges and Considerations

Balancing Victim's Rights and Fair Trial for Accused

A key challenge is to balance the enhanced participatory rights of the victim with the accused's fundamental right to a fair trial, enshrined under Article 21 of the Constitution. The concern that a victim-driven prosecution might become overly zealous or vindictive needs to be addressed by ensuring the Public Prosecutor retains control and objectivity. The apprehension of bias, as raised in Dodda Brahmanandam (1985) concerning SPP appointments, can also be a consideration when a victim's counsel is actively assisting, requiring vigilant judicial oversight.

Potential for Conflict or Dilution of PP's Role

There is a potential for conflict if the roles are not clearly demarcated or if the victim's counsel attempts to overstep their assisting role. The Supreme Court's decision in Rekha Murarka (2019 SC) provides crucial guidance in mitigating this by defining the boundaries of assistance. It ensures that the Public Prosecutor's strategic handling of the case is not undermined, preserving the integrity of the prosecution process.

Conclusion

Section 24(8) of the CrPC, along with its proviso, represents a significant facet of India's criminal prosecution system. The provision for appointing Special Public Prosecutors caters to the need for specialized or focused prosecution in certain cases, with judicial oversight ensuring such appointments serve public justice. The 2009 proviso marks a commendable step in victim jurisprudence, acknowledging the victim's legitimate interest in the trial process by allowing them to engage counsel to assist the prosecution. However, the Supreme Court has carefully calibrated the scope of this assistance, ensuring it remains supportive of the Public Prosecutor, who retains ultimate control over the conduct of the prosecution. This balance is essential to uphold the principles of a fair trial, prosecutorial independence, and the overall integrity of the criminal justice system in India. The continued evolution of jurisprudence in this area will likely focus on refining this balance to ensure that justice is not only done but is also seen to be done for all parties involved.