Victim's lawyer should not be ordinarily allowed to examine witness in criminal trial, says SC

A victim's lawyer should not be "ordinarily" allowed to examine or cross-examine a witness during criminal trial, the Supreme Court said on Wednesday while observing that permitting this might weaken the prosecution case.

The top court said that if victim's lawyer is given a "free hand", the trial in a criminal case may end up becoming a "vindictive battle" between him and the accused.

A bench of Justices M M Shantanagoudar and Deepak Gupta said this while dealing with a question regarding the extent to which a victim's counsel can participate in the prosecution of a case.

The apex court, while highlighting the role of a public prosecutor in criminal trial, said that he occupies a position of "great importance" and the assistance given by the victim's counsel is meant to be given to the prosecution in general.

"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," the bench said.

"Given the primacy accorded to the public prosecutor in conducting a trial...permitting such a free hand would go against the scheme envisaged under the CrPC," it said.

The bench upheld an order passed by the Calcutta High Court which had dismissed an application filed by a woman, who had sustained injuries in a murder case in which her husband had died, seeking permission for her counsel to cross-examine witnesses after the public prosecutor during the trial.

In its verdict, the apex court deliberated upon several instances and its implications on the trial if the victim's counsel is allowed to examine a witness.

"Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim's counsel should ordinarily not be given the right to make oral arguments or examine and cross-examine witnesses," the bench said.

It said that since modalities of each case are different, the extent of assistance to be rendered by victim's counsel during the trial and the manner of giving it would depend on the facts and circumstances of each case.

The bench noted the "realities of criminal prosecutions" and said there is no denying that public prosecutors are often overworked.

"In certain places, there may be a single public prosecutor conducting trials in over 23 courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted," it said.

"A victim-centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps," the bench said.

The top court said that some significant role should be given to the victim's counsel while assisting the prosecution but while doing so, the balance inherent in the scheme of the CrPC should not be tampered with and the prime role accorded to the public prosecutor should not be diluted.

"Given that crimes are treated as a wrong against the society as a whole, his (public prosecutor) role in the administration of justice is crucial, as he is not just a representative of the aggrieved person, but that of the state at large," it said.

"Though he is appointed by the government, he is not a servant of the government or the investigating agency. He is an officer of the court and his primary duty is to assist the court in arriving at the truth by putting forth all the relevant material on behalf of the prosecution," the bench said.

It said that a public prosecutor, while discharging his duties, must act in a manner that is fair to the court, the investigating agencies as well to the accused.