Independent Prosecution By De Facto Complainant Not Permissible In Sessions Case: SC Sets Aside HC Order Accepting HC’s Plea [Read Order]

The Supreme Court has set aside an order of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh that allowed a de facto complainant to conduct the prosecution independently, by engaging an advocate.

The special leave petition was filed by the high court on its administrative side, assailing an order of the high court, on the judicial side, to the extent that it holds that the even in a sessions case, a victim can be permitted to conduct prosecution, either independently or in addition to the Public Prosecutor, by putting up further questions in evidence during trial or in any enquiry or other proceedings, including in any application to file counters or objections and participate, in view of the proviso to Section 24(8) of the Code of Criminal Procedure, 1973, despite the provisions of Section 225 of CrPC.

A bench of Justice J Chelameswar and Justice UU Lalit disposed of the special leave petition in this brief order: “Learned counsel appearing for both the parties in the matter submit that the impugned order cannot be sustained in view of the scheme provided in the proviso to Section 24(8) of the CrPC and in light of the decision of this Court in Shiv Kumar v. Hukam Chand & Anr. [(1999) 7 SCC 467] and Dhariwal Industries Ltd. vs. Kishore Wadhwani & Ors. [(2016) 10 SCC 378]. The impugned judgment is accordingly set aside in light of the aforementioned decisions.”

HC (Judicial) observations

The high court administration had assailed the following observations of Justice B Siva Sankara Rao while allowing a petition filed by Mahabunnisa Begum: “The proviso to section 24(8) of the amended Act No.5 of 2009 of Cr.P.C seeks that the Court may permit the victim to engage an advocate of his or her choice to assist the prosecution. Here to assist the prosecution does not mean mere assisting the Public Prosecutor under Section 301 Cr.P.C., but for conducting the prosecution itself by the victim or defacto complainant in person or through private advocate of his or her choice either under Section 24(8)proviso or under Section 302 Cr.P.C. as the case may be, but for to clarify further that irrespective of what is stated in Sections 225 & 226 Cr.P.C., even in a Sessions case, a victim can be permitted under Section 24(8) proviso of Cr.P.C. to conduct prosecution either independently or in addition to the public prosecutor by putting further questions in evidence during trial or in any enquiry or other proceedings including in any application to file counters or objections and participate.”

This was the operative part of the order: “Having regard to the above, the Criminal Petition is allowed and the dismissal order of the lower Court is set aside and while conducting the prosecution by the State represented by APP of the accused witnesses, the defacto complainant-cum-victim is directed to be permitted by virtue of this order by the learned Magistrate to engage a private advocate and conduct prosecution by further examination of any witness in addition to what APP conducts if any. Needless to say any permitting of putting of questions and eliciting of answers will be within the scope of law and power of the Court including on relevancy and admissibility within the scope of Section 136 of Indian evidence Act in particular and on proof with reference to other provisions, including from the availability of the power under Section 165 of the Indian Evidence Act.”

High Court (Admin) Contentions in SLP

The high court contended that, in Shiv Kumar v. Hukam Chand and Anr, the apex court made it manifestly clear that prosecution in a sessions court cannot be conducted by anyone other than the Public Prosecutor. “If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter,” the apex court had observed in that case.

It also contended that the de facto complainant has no locus to appoint a counsel and plead on behalf of the prosecution in a case to be tried before a sessions court, in view of the provisions of Section 225 and Section 226 of the Code of Criminal Procedure.

“A Public Prosecutor being effaced from the conduct of a prosecution, or his role being entirely taken over by a private counsel, may cause prejudice to the rights of the accused to have a free and fair trial,” the petition said.

It also contended that this order will have a wide-ranging impact on trials conducted across the state, particularly if circulars to that effect are sent to all subordinate courts within the jurisdiction of the high court.