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The complainant’s bit-part in a trial: To “Assist”, not “Lead”

The complainant may be instrumental in setting a criminal proceeding into motion, but he/she cannot be permitted to go beyond “a mere assistive role”, as that could prejudice a fair trial.

Prabhav Ralli

Meghna Nimbekar

Criminal proceedings are often triggered on the basis of information received from the public (mostly the victim or a near kin), in general referred to as the complainant. Though he/she may be the directly impacted party, one cannot lose sight of the fact that a crime is a wrong against society and the public at large. The information as provided by the complainant is only to “aid” the police/investigating agency in order for them to take action under the prevalent law.

However, having been directly aggrieved and inevitably high on emotions, the complainant often tends to forget the significance of the State in a criminal trial and seeks to take charge from the prosecutor, the representative of the public at large.

This article is an attempt to highlight how it is the State that runs the show in a criminal trial; and the complainant, though the “generator” or the “trigger” for a criminal proceeding, is soon reduced to the status of an “ally” of the prosecution.

The submission of a complaint by the de facto complainant before the police ignites a criminal proceeding, and yet the complainant is not the one in the driver’s seat. Once an FIR is registered, and the complaint transforms into a State prosecution, it is the Public Prosecutor appointed by the Central or the state government (as per the provisions of Section 24 of the Code) who takes an active role in conducting the trial. He/she is independent and impartial and ought to do it entirely uninfluenced by the complainant.

The complainant’s role is to “assist”, and not “lead”

To set the context for discussion right, first and foremost, we purposely deviate from the Common Law understanding of private prosecutions as in England, and import the meaning of the words prosecutorial ethics’ from the American criminal jurisprudence, which is based on the premise that “the use of private prosecutors violates “public interest”… what Justice Frankfurter once called: vague, impalpable, but all controlling consideration.” Thus, a private appointment results in a blemish (of private interest) on the discharge of a public duty.

With this in mind, we delve into the provisions of the Code of Criminal Procedure (CrPC), and the manner in which they limit the role of the complainant to that of mere assistance and support to the prosecution.

(i) The proviso to sub-clause 8 of Section 24 vests the Court with a discretion to permit the victim (or the complainant, as the case may be) to engage an advocate of his choice for “assisting” the prosecution. The erstwhile usage of the phrase “cooperate with the prosecution” was given clarity by the amendment of 2009, which stated that though the complainant may ‘assist’ the prosecution, the role of the complainant’s counsel continues to be secondary and the aforesaid “change is reflective of an intention to only assign a supportive role to the victim’s counsel, which would also be in consonance with the limited role envisaged for pleaders instructed by private persons under Section 301(2), Cr.P.C."

(ii) By virtue of Section 301, CrPC, the complainant can seek the court’s permission in case he/she wants to submit written arguments after the closing of evidence. However, the provision clarifies that the prosecutor shall be in “charge” of the case and the complainant’s counsel would always act under the directions of the Prosecutor. The complainant’s role of filing written arguments, subject to the permission of the court, must therefore be constrained to that, and the arguments and examination of the witness must smoothly fall within the ambit of the role of the Public Prosecutor. Anything contrary to this would lie beyond the scope of the limited or secondary role of the complainant’s counsel.

(iii) The idea behind the aforesaid provisions is to prevent the distortion of the criminal justice system. Thus, the courts in India have time and again gone on to uphold the need to ‘limit’ the role of the complainant’s counsel, not only because the Code itself puts the Public Prosecutor on a higher pedestal by virtue of Section 225 of the Code, but also to prevent bias and prejudice to the accused during the trial.

It would be apt to refer to the decision of the Supreme Court in Rekha Murarka v. The State of West Bengal passed as recently as in November’ 2019, wherein the Apex Court, while dealing with the interpretation of the aforesaid provisions, had gone on to hold as under:

The use of the term “assist” in the proviso to Section 24(8) is crucial, and implies that the victim’s counsel is only intended to have a secondary role qua the Public Prosecutor…In our considered opinion, a mandate that allows the victim’s counsel to make oral arguments and cross-examine witnesses goes beyond a mere assistive role, and constitutes a parallel prosecution proceeding by itself. Given the primacy accorded to the Public Prosecutor in conducting a trial, as evident from Section 225 and Section 301(2), permitting such a free hand would go against the scheme envisaged under the CrPC.”

Complainant’s right to oppose bail

A further expansion of the previously stated provisions ought to be highlighted. And so, we proceed to weigh in a balance, the interest of the accused and whether a complainant (in addition to the Public Prosecutor) has any role in opposing the bail application of the accused.

As bail is discretionary, the judges are to keep complex principles in mind. It is amply clear that the interests of the accused are to outweigh the interest of the complainant to oppose a bail application (which may again impose a dual burden on the accused) as the Public Prosecutor is already given “notice” of and an opportunity to oppose the grant of bail to the accused. Thus, treading on this path, and further upholding the covenants of Section 301 of the CrPC, the Delhi High Court in Sharad Kumar Aggarwal v. State went on to observe,

The public prosecutor, who is appointed by the State, is in-charge of the case on behalf of the State and if the complainant engages a private counsel, he, at best, can assist the public prosecutor and shall act under the directions of the public prosecutor. Therefore, if at all, the complainant wants to assist the Court in arriving at a just decision, the remedy open to him is not to seek a right of hearing to oppose the bail of the petitioner himself. It would be in consonance with law in case he assists the Public Prosecutor without seeking the right of hearing himself.”

Practical pitfalls

It is a well-known fact that the Public Prosecutors are overburdened, as a result of which they may miss out on certain crucial aspects of the matter. They are human after all, and cannot be expected to conduct 15-20 trials in a day with neat impeccability. Additionally, the Prosecutors face a myriad of challenges ranging from inadequate resources to change in technology. In such a situation, if the outcome of the trial is impacted for the aforesaid reasons, not only will the pillar of fair trial be shaken, but the faith of the public in the criminal justice system would also be weakened to an extent where the courts would be looked at with a suspicious eye.

Therefore, to prevent this eventuality, the Code has placed sufficient safeguards in the form of Section 311 and 372, whereby the victim/complainant has the right to ask for a witness to be re-examined and also prefer an appeal against acquittal, independent of the appeal of the State, in order to challenge the exoneration ordered by the trial court, respectively.

In addition to this, the complainant is also entitled in law to challenge the order granting bail or apply for cancellation of bail, if the accused is found to be violating the conditions of bail as imposed by the court. The observations made by the Tripura High Court in Uma Saha v. The State of Tripura and endorsed by the Supreme Court in Rekha Murarka further strengthen the authors’ view in this regard.

Conclusion

Once again, we state that nothing can impair the proceedings in a criminal trial as it is in the interest of the society to find out the truth of the matter, and ultimately reach the ends of justice by determining the guilt or innocence of the accused. The complainant may be instrumental in setting a criminal proceeding into motion, but he/she cannot be permitted to go beyond “a mere assistive role”, as that does not only prejudice a fair trial but also undermine the primacy accorded to a Public Prosecutor by the Code and the criminal justice system of our country.

Prabhav Ralli is a Delhi-based lawyer who specializes in Criminal Law and Meghna Nimbekar is a 5th year student, at Amity Law School, Delhi (GGSIPU).

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