The Evolving Right of Victims to Engage Counsel in Indian Criminal Procedure
Introduction
The Indian criminal justice system has witnessed a significant jurisprudential shift towards victimocentrism, recognizing victims not merely as informants or witnesses but as crucial stakeholders in the pursuit of justice. This evolution reflects a broader global trend and is underscored by legislative reforms and judicial pronouncements aimed at enhancing victim participation. A critical facet of this development is the right of a victim to engage an advocate of their choice to assist in the criminal proceedings. The Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009), which came into effect on December 31, 2009, marks a watershed moment in this regard, formally institutionalizing several rights for victims, including the right to engage counsel. This article analyzes the statutory framework and judicial interpretations governing this right, exploring its scope, limitations, and the balance it seeks to strike within the adversarial system.
Statutory Framework Governing Engagement of Victim's Counsel
The Traditional Landscape: Pre-2009 Amendments
Prior to the 2009 amendments, the Code of Criminal Procedure, 1973 (CrPC) offered limited avenues for private participation in prosecutions, especially in Sessions trials. Section 301 CrPC stipulated that any private person may instruct a pleader to prosecute any person in any Court, but such pleader "shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor" and could, with the permission of the Court, submit written arguments after the evidence is closed. The Supreme Court in Shiv Kumar v. Hukam Chand And Another (1999 SCC 7 467) affirmed the exclusive role of Public Prosecutors in conducting prosecutions in Sessions Courts, emphasizing that Section 225 CrPC mandates this exclusivity as a safeguard for fair trials. The Court reasoned that allowing private counsels to independently conduct prosecutions could compromise judicial integrity and lead to biased proceedings.
Section 302 CrPC provided a slightly wider scope in Magistrate's Courts, permitting the Magistrate to allow any person (other than a non-designated police officer or an officer involved in the investigation) to conduct the prosecution. The Supreme Court in J.K International v. State (Govt. Of Nct Of Delhi) And Others (2001 SCC 3 462), while dealing with a complainant's right to be heard when proceedings initiated by them were sought to be quashed, acknowledged the statutory space for private participation under Sections 301(2) and 302 CrPC, highlighting that an aggrieved individual initiating proceedings retains an interest.
The 2009 Amendments: A New Dawn for Victim Participation
The Code of Criminal Procedure (Amendment) Act, 2008, introduced profound changes aimed at fortifying victims' rights. A pivotal amendment was the insertion of Section 2(wa) CrPC, which defined a "victim" as "a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression 'victim' includes his or her guardian or legal heir." This definition provided a clear legal identity to victims, paving the way for the recognition of specific rights (Sateesh Chander Kuthiala Petitioner v. State Of Himachal Pradesh And Another S (Himachal Pradesh High Court, 2016); Sangita Ghosh (sengupta) v. State Of West Bengal And Others (Calcutta High Court, 2023)).
Most pertinent to the subject of this article is the proviso inserted into Section 24(8) CrPC. Section 24(8) empowers the Central or State Government to appoint a Special Public Prosecutor for any case or class of cases. The newly added proviso states: "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 statutorily recognized the victim's right to engage an advocate, albeit to "assist" the prosecution. The objective, as noted by various High Courts, was to give victims a more active role in the dispensation of criminal justice, acknowledging their stake in the proceedings (Sathyavani Ponrani Petitioner v. Samuel Raj (Madras High Court, 2010); Bhikhabhai Motibhai Chavda v. State Of Gujarat (2010 SCC ONLINE GUJ 4642)).
Judicial Interpretation of the Proviso to Section 24(8) CrPC
The Scope of "Assistance": The Supreme Court's Pronouncement
The interpretation of the word "assist" in the proviso to Section 24(8) CrPC became a subject of considerable judicial discourse, with varying interpretations emerging from High Courts. The Supreme Court provided an authoritative clarification in Rekha Murarka v. State Of West Bengal And Another (2019 SCC ONLINE SC 1495). The Court, while acknowledging the legislative intent to enhance victim participation, delineated the boundaries of such assistance. It held that the victim's counsel is not entitled to conduct the prosecution independently or to directly examine or cross-examine witnesses, or to make oral arguments.
The Supreme Court in Rekha Murarka (2019) harmonized the proviso to Section 24(8) with Section 301(2) CrPC and the overarching scheme of prosecution led by the Public Prosecutor under Section 225 CrPC. It concluded that the role of the victim's counsel is supportive. This includes the right to be heard, to assist the Public Prosecutor in the conduct of the case, to suggest questions to the court or the Public Prosecutor for being put to witnesses, and to file written arguments after the closure of evidence with the permission of the court. The Court emphasized that the Public Prosecutor remains in charge of and responsible for the prosecution, ensuring that the trial is conducted fairly and impartially, without being driven by a sense of vengeance. The victim's counsel's role is to ensure that the victim's interests are represented and that justice is done, but within the framework of a prosecution led by the State.
Perspectives from High Courts: Exploring the Contours of Assistance
Prior to, and sometimes even after, the Rekha Murarka (SC) judgment, various High Courts had explored the extent of "assistance." Some interpretations were more expansive. For instance, the Madras High Court in Sathyavani Ponrani (2010) opined that an advocate engaged by a victim should be permitted to take an "adequate part" in criminal proceedings. The Allahabad High Court in Lokesh Singh v. State Of U.P. (2013 Allahabad High Court) suggested that the court could permit the victim's advocate to address the court in addition to filing written arguments. The Karnataka High Court in Shankar v. State Of Karnataka And Others (2011 SCC ONLINE KAR 4188) even contemplated that in appropriate cases, with court permission, the victim's lawyer might examine a witness. The Andhra Pradesh High Court in Gude Bhavani Sujatha v. Muggulla Srinivasa Rao And Ors. (2015 ALT CRI 2 308) indicated that a victim's advocate, once permitted, could file applications, for instance, under Section 242(2) or Section 311 CrPC. While these interpretations reflect a strong inclination towards empowering victims, they must now be understood and applied in conformity with the limitations set by the Supreme Court in Rekha Murarka (SC).
The High Courts have consistently recognized that the permission to engage counsel under the proviso to Section 24(8) CrPC is discretionary. The Tripura High Court in Uma Saha v. State Of Tripura (2014 SCC ONLINE TRI 859) clarified that the trial court has the power under this proviso to permit such engagement. The Jharkhand High Court in Santu Mahto v. The State Of Jharkhand (Jharkhand High Court, 2014) emphasized that this discretion should be exercised judiciously, considering factors such as whether the private counsel's presence would aid the Public Prosecutor and the court.
The Multifaceted Role of Victim's Counsel: Beyond Courtroom Assistance
The role of a victim's advocate, particularly in sensitive cases like sexual assault, extends beyond mere courtroom assistance during trial. The Supreme Court in Delhi Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14, a landmark judgment frequently cited (e.g., in Dilip v. State Of Madhya Pradesh (Supreme Court Of India, 2013); Sathyavani Ponrani (2010); Khumukcham Nikita Devi v. State Of Manipur (Manipur High Court, 2017)), laid down broad parameters for assisting victims of rape. These include:
- Providing legal representation by someone well-acquainted with the criminal justice system.
- Explaining the nature of proceedings to the victim.
- Preparing the victim for the case.
- Assisting the victim at the police station and in court.
- Guiding the victim on obtaining help from other agencies (e.g., counseling, medical assistance).
- Ensuring continuity of assistance.
- The police being under a duty to inform the victim of her right to representation.
Victim's Right to be Heard: A Broader Context
The right to engage counsel under the proviso to Section 24(8) CrPC is part of a larger tapestry of victim's participatory rights recognized and fortified by Indian law. The Supreme Court has consistently upheld the victim's right to be heard at various critical stages of criminal proceedings. In Jagjeet Singh And Others (S) v. Ashish Mishra Alias Monu And Another (2022 SCC ONLINE SC 453), the Court reiterated the victim's right to be heard during bail proceedings. In Mallikarjun Kodagali (Dead) Represented Through Legal Representatives v. State Of Karnataka And Others (2019 SCC 2 752), the Court upheld the victim's statutory right under the proviso to Section 372 CrPC to appeal against an order of acquittal, conviction for a lesser offence, or inadequate compensation. Similarly, in J.K International (2001), the right of the complainant to be heard when proceedings initiated by them are sought to be quashed was affirmed. These pronouncements collectively signify the judiciary's commitment to ensuring that the victim's voice is not marginalized in the criminal justice process.
Balancing Victim Empowerment with Fair Trial Principles
The endeavor to empower victims by allowing them to engage counsel must be carefully balanced with the fundamental principles of a fair trial for the accused and the integrity of the prosecutorial process. The Public Prosecutor is an officer of the court, representing the State, and is expected to act impartially, not merely to secure a conviction but to ensure that justice is done (Shiv Kumar, 1999). The Supreme Court's interpretation in Rekha Murarka (SC) (2019) seeks to strike this delicate balance. By defining the role of the victim's counsel as "assistive" rather than "leading," the Court ensures that the prosecution remains under the control of the Public Prosecutor, preventing the possibility of a "parallel" or "vindictive" prosecution driven solely by private interests. This structured participation allows for valuable victim input without compromising the fairness and objectivity of the trial.
Conclusion
The legal landscape in India has demonstrably evolved to accord greater recognition and participation rights to victims of crime. The proviso to Section 24(8) CrPC is a significant legislative step in this direction, granting victims the right, subject to court permission, to engage an advocate of their choice to assist the prosecution. The Supreme Court's decision in Rekha Murarka v. State Of West Bengal (2019) has provided crucial clarity on the scope of this "assistance," delineating it as a supportive role that complements, rather than supplants, the primary responsibility of the Public Prosecutor. While the victim's counsel can provide invaluable aid by ensuring the victim's perspective is effectively presented, suggesting lines of inquiry, and filing written submissions, the conduct of the prosecution remains firmly with the Public Prosecutor. This framework aims to enhance victim satisfaction and participation while upholding the principles of a fair trial and the institutional integrity of the State-led prosecution, marking a nuanced progression in India's victim jurisprudence. The multifaceted role of the victim's advocate, extending to support at the police station and linkage with other services, as highlighted in cases like Delhi Domestic Working Women's Forum (1995), further enriches the concept of meaningful assistance to victims.