Uma Saha (Debnath) VsThe State of Tripura

Deepak Gupta, C.J.—By means of this petition filed under Section 397 of the Code of Criminal Procedure, the petitioner (complainant) has challenged the order dated 28.08.2014, whereby the learned Trial Court (Additional Sessions Judge, West Tripura, Agartala) has rejected her application under Section 24(8) of Cr.P.C. to appoint a counsel of her choice to assist the Public Prosecutor.

Today, Mr. S. Kar Bhowmik, learned counsel has brought to my notice an earlier application filed by the very same petitioner under Section 302 of the Cr.P.C. wherein the petitioner had also prayed that her counsel may be appointed as Special A.P.P. for better prosecution of the case and for the satisfaction of the petitioner (complainant). This petition was filed before J.M., 1st Class before commitment of the case. The J.M., 1st Class rejected this petition on 06.08.2012. Thereafter, the case was committed to the Court of Sessions and in the Court of Sessions, an application under Section 24(8) Cr.P.C. was filed for permitting the complainant to be represented by the counsel of her choice so that he could assist the prosecution. The learned Trial Court rejected this application on the ground that under Section 24(8) Cr.P.C., it is only the Central Government or State Government which can appoint a Public Prosecutor.

The view taken by the learned Trial Court is totally incorrect. The learned Trial Court has not taken into consideration the proviso to Section 24(8) Cr.P.C. A party having an interest in a criminal case may be represented by a counsel of his/her choice under two provisions under the code. These provisions are Section 24(8) and Section 301 of the Cr.P.C.

Section 24(8) Cr.P.C. reads as follows:-

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

Ins. By Act 5 of 2009, sec. 3 (w.e.f. 31-12-2009) [Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.]"

As far as Section 24(8) Cr.P.C. is concerned, prior to its amendment in the year 2009, this Section only permitted the Central or the State Government to appoint a person, who had practiced as an advocate for not less than ten years as a Special Public Prosecutor. By Amendment Act 5 of 2009, the proviso was added to this Section which empowers the Court to permit the victim to engage an advocate of his choice to assist prosecution under the sub-section. Therefore, the victim as defined in the Cr.P.C. is entitled to approach the Court under Section 24(8) Cr.P.C. for permission to engage an advocate of his choice to assist the prosecution.

Section 301 Cr.P.C. reads as follows:-

"301. Appearance by Public Prosecutors. - (1) 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.

(2) 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."

Sub-Section (1) of Section 301 Cr.P.C. permits the Public Prosecutor and the Assistant Public Prosecutor to appear without any written authority in any criminal case in which the Public Prosecutor or Assistant Public Prosecutor is appearing. Any person may instruct a pleader to prosecute any person attending Court, but such a pleader appointed by the private person shall not conduct the prosecution which must be conducted by the Public Prosecutor or the Assistant Public Prosecutor. The counsel instructed by the private person may assist the Public Prosecutor or the Assistant Public Prosecutor, but there is nothing in law which compels the Assistant Public Prosecutor or Public Prosecutor to be bound by the instructions of the counsel representing the private party. Therefore, the counsel in such a case has no right to cross-examine or examine any witnesses without the permission of the Assistant Public Prosecutor or Public Prosecutor. The only right given is that such counsel can seek permission of the Court to file written arguments after the evidence is closed in the case. Here also, it is for the Court to decide whether such permission is to be granted or not. Therefore, under Section 301 Cr.P.C., the counsel appointed by the private person has a very limited right. He may assist the prosecution and he may even suggest a question to the Court but it is for the Court or the prosecution to decide whether to put that question or not. The counsel has no right to put that question.

Section 302 Cr.P.C. reads as follows:-

"302. Permission to conduct prosecution. - (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader."

Section 302 Cr.P.C. has no applicability to appointment of counsel by a private person.

Section 24(8) Cr.P.C. has to be read with Section 301 Cr.P.C. because even under the proviso to Section 24(8) Cr.P.C., the Court permits the victim to engage an advocate to assist the prosecution only.

Therefore, the principles of Section 301 Cr.P.C. as explained above will apply even when the victim is represented by counsel under Section 24(8) Cr.P.C. It is, however, reiterated at the cost of the repetition that if the private counsel permitted to appear, raises some issue of importance and the Court feels that there is merit in the submission of the counsel then the Court is not to sit as a silent spectator but may take action in accordance with law. To give an example if the Public Prosecutor fails to properly cross-examine or examine a witness the private counsel may suggest some questions. If the Court is satisfied that the questions are necessary the Court itself can question the witness even though it may be at the suggestion of that such counsel.

In the present case, though the correct provisions of law may not have been cited in the first application wherein reference was made only to Section 302 of the Cr.P.C. which has no applicability, but as far as Section 24(8) Cr.P.C. is concerned that is applicable because the proviso to Section 24(8) Cr.P.C. clearly empowers the Court to permit the victim to engage an advocate to assist the prosecution. The difference between Section 24(8) Cr.P.C. and Section 301 Cr.P.C. is that whereas under Section 24(8) Cr.P.C., it is only the victim who can approach the Court under Section 301 sub-section (2) Cr.P.C., any private person who can persuade the Court that he has an interest in the matter can approach the Court seeking such permission. The other difference is that under Section 301 sub-section (2) Cr.P.C., no permission of the Court is actually required by the private person to be represented by counsel, but that counsel''s role is limited as explained hereinabove.

In view of the above discussion, the petition is allowed and the complainant is permitted to appoint counsel of her choice to assist the prosecution in the manner clarified hereinabove.