Miscellaneous Part 6
Summary of Question- Victim’s Counsel in a criminal case
Question – What is the role of victim’s counsel in a criminal case.
Answer- Role of victim's counsel, if engaged, is only to assist the Public Prosecutor.
In CRIMINAL APPEAL NO. 1727 OF 2019 [Rekha Murarka vs. The State of West Bengal], decided on 20th. Nov. 2019, the Hon’ble Supreme Court observed and held :
"In light of this, we now proceed to consider the extent to which such assistance can be accorded. As mentioned supra, learned Senior Counsel for the Appellant has argued that there may be instances where the Public Prosecutor may fail to perform his functions properly, whether deliberately or due to oversight, which may obstruct justice instead of furthering it. To meet the ends of justice in such cases, he submitted that the role of the victim’s counsel should not be limited to filing of written arguments as provided with respect to pleaders engaged by private parties under Section 301(2). Instead, it should extend to making oral arguments and examining witnesses as well. On a perusal of the arguments advanced and the decisions relied on by both the parties, we find that such a broad mandate for the victim’s counsel cannot be given effect, as it is not rooted in the text of the Cr.PC."
"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. This is supported by the fact that the original Amendment Bill to the CrPC had used the words “coordinate with the prosecution”. However, a change was later proposed and in the finally adopted version, the words “coordinate with” were substituted by “assist”. This 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). In our considered opinion, a mandate that allows the victim’s counsel to make oral arguments and crossexamine 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."
" In some instances, such a wide array of functions may also have adverse consequences on the fairness of a trial. For instance, there may be a case where the Public Prosecutor may make a strategic call to examine some witnesses and leave out others. If the victim’s counsel insists upon examining any of the left out witnesses, it is possible that the evidence so brought forth may weaken the prosecution case. If given a free hand, in some instances, the trial may even end up becoming a vindictive battle between the victim’s counsel and the accused, which may further impact the safeguards put in place for the accused in criminal trials. These lapses may be aggravated by a lack of advocacy experience on the part of the victim’s counsel. In contrast, such dangers would not arise in the case of a Public Prosecutor, who is required to have considerable experience in the practice of law, and act as an independent officer of the Court. Thus, it is important to appreciate why the role of a victim’s counsel is made subject to the instructions of the Public Prosecutor, who occupies a prime position by virtue of the increased responsibilities shouldered by him with respect to the conduct of a criminal trial."
" At the same time, the realities of criminal prosecutions, as they are conducted today, cannot be ignored. 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. A victimcentric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the Appellant that the introduction of the proviso to Section 24(8) acts as a safety valve, in as much as the victim’s counsel can make up for any oversights or deficiencies in the prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Section 372 of the Cr.P.C. is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim’s counsel while assisting the prosecution. However, 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."
" In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. 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 crossexamine witnesses. As stated in Section 301(2), the private party’s pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim’s counsel under the proviso to Section 24(8), as it adequately ensures that the interests of the victim are represented. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the CrPC, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim’s counsel"
"However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura (supra) that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself."
Summary of Question- Quashing ; Civil Nature dispute
Question – Whether a criminal case can be quashed merely on this ground that it is of civil Nature.
A Civil Dispute may also involve ingredients of an offence (s). If the situation be that in a Civil Dispute, ingredients of offence are also present then the criminal case (complaint / FIR) cannot be quashed merely on this ground that the Dispute is of Civil Nature.
High Court has no jurisdiction to appreciate the evidence of the proceedings under Section 482 or under Article 226, but if, without meticulous analysis of the case and without appreciation of Evidence / Defence of the accused , it appears to the High Court that the ingredients of an offence or offences are, prima face, not fulfilled, and that the complaint / FIR is mala fide, frivolous or vexatious, and is just to pressurize parties to settle civil disputes , in that event there would be justification for interference by the High Court for quashing ; it the paramount duties of the superior court to see that a person, who is absolutely innocent, is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint /FIR.
Although High Court in the matter of quashing cannot, ordinarily, appreciate a document relied by the accused, a public document or a document veracity of which is not disputed by the complainant, can be considered by High Court in deciding a petition for quashing.
1. In Arun Bhandari Vs. State of UP 2013(2) SCC 801, the Hon’ble Supreme Court held:
" .... some times a case may apparently look to be of civil nature or may involve a commercial transaction but such civil disputes or commercial disputes in certain circumstances may also contain ingredients of criminal offences and such disputes have to be entertained notwithstanding they are also civil disputes"
"This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes"
".... meticulous analysis of the case is not necessary and the complaint has to be read as a whole and if it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court."
".. one of the paramount duties of the superior court is to see that person who is absolutely innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint"
2. In CRIMINAL APPEAL No. 675 of 2019 , decided on 15th. April 2019, the Apex Court examined the following findings of the Hon’ble Patna High :
“6. On perusal of complaint petition, I find that the complainant has asserted that firstly, he had contracted for purchasing the shop premises from the land owner, but the petitioners offered more money and got the document registered in their favour. There is no chit of paper on record to support the agreement of sale or payment of any amount to the land owner. The petitioners claim to be bona fide purchaser of the shop premises, which was in tenancy of the complainant. The petitioners have filed an Eviction Suit No.10 of 2012, in which the complainant has filed his written statement admitting tenancy in the said shop premises. The complainant has further asserted that he has been remitting rent of the said shop regularly and when he learnt about the transfer of shop premises in favour of the petitioners, the complainant has filed a Title Suit No.2 of 2012. The dispute between the parties appears to be a civil dispute. The relationship of landlord and tenant stands admitted by the complainant in the eviction suit. I further find that there are contradictions in the statement of witnesses on the point of occurrence. The criminal prosecution of these petitioners in the above background appears to be an abuse of process of Court.”
2.1. The Apex court found two errors in the said findings and held :
i. “ First error is that the High Court did not examine the case with a view to find out as to whether the allegations made in the complaint
prima facie make out the offences falling under Sections 323, 379 read with Section 34 IPC or not."
“Instead the High Court in Para 6 gave importance to the fact that since there was a dispute pending between the parties in the Civil Court in relation to a shop as being landlord and tenant, it is essentially a civil dispute between the
"The High Court failed to see that mere pendency of a civil suit is not an answer to the question as to whether a case under Sections 323, 379 read with Section 34 IPC is made out against respondent Nos. 2 and 3 or not."
ii. "The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence."
"In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short “Cr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
3. In Criminal Appeal No. 255 of 2019 , decided on 12th. Feb. 2019, the Hon’ble Supreme Court refered to 2015 (3) SCC 424, 2002 (3) SCC 89 and 2006 (6) SCC 736, and observed and held :
"... Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted."
4. In AIR 2000 SC 1869 , the Hon’ble Supreme Court observed held as under:
“Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of First Information Report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on perusal of the complaint comes to a conclusion that the allegations leveled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise upto the expectation of the people and deal with the situation as is required under the law.
Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount."
" Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint."
" Be it noted that in the matter of exercise of High Court's inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of Court. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial, and in the event, the High Court is desirous of putting a stop to the known procedure of law, the High Court must use a proper circumspection and as noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction."
5. In a petition for quashing under section 482 crpc, High Court can consider a document, relied by the accused, if the document is a public document or a document, veracity of which is not disputed.
5.1. A three judge bench decision in CRIMINAL APPEAL No.254 OF 2015, decided on 3.10.2018, observed and held :
"Ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies. However an exception has been carved out by this Court in Yin Cheng Hsiung Vs. Essem ChemicalIndustries (1) ; State of Haryana & Ors. Vs Bhajan Lal& Ors. (2) and Harshendra Kumar D. Vs. Rebatilata Koley Etc.(3) to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered."
1 2011(15) SCC 207
2 1992 Supp.(1) SC 335
3 (2011) 3 SCC 351
6. In Hridaya Ranjan Prasad Verma vs. State of Bihar (2000) 4 SCC 168, the Hon’ble Supreme Court made a distinction between a mere breach of contract and an offence of cheating in the following words:
“It is held time and again that the distinction between mere breach of contract and the offence of cheating is a fine one.It would depend upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of transaction that is the time when the offence is said to have been committed. Therefore, it is the intention which is gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such an culpable intention right at the beginning that is when he made the cannot be presumed."
6.1. As such, if from the plain reading of Complaint read with deposition / FIR, ingredients of cheating (including that the accused had no fraudulent or dishonest intention at the time of entering into contract / making of promise) are , prima facie, not fulfilled , the complaint /FIR may be quashed under Article 226 / Section 482 Cr.P.C
7. In CRIMINAL APPEAL NO. 834 of 2017 ( The Commissioner of Police vs. Devender ), decided on the 8th. August 2019, a Three Judge Bench of the Hon’ble Supreme Court observed and held :
“Having heard the learned counsel appearing on behalf of the parties at length and considering the material on record, we are of the opinion that the criminal proceedings initiated by Respondent No. 1-original complainant is nothing but an abuse of the process of law for settling a civil dispute.”
“ Even considering the nature of allegations in the complaint, we are of the firm opinion that no case is made out for taking cognizance of the offence Under Section 420/34 Indian Penal Code. The case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law.”
8. The Hon'ble Supreme Court in Criminal Appeal No. 56 of 2020 [ K. Jagdish vs. Uday Kumar G.S.), decided on the 10th January 2020, observed and held:
"It is thus well settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law."
" In the light of the principles as mentioned hereinabove, we have no hesitation in concluding that the High Court erred in quashing the criminal proceedings . We, therefore, allow this appeal, set aside the decision rendered by the High Court and direct that that criminal proceedings shall be taken to logical conclusion in accordance with law."
9. In this connection , a very recent decision of the Hon’ble Supreme Court in Criminal Appeal No. 168 of 2020 (Govind Prasad Kejriwal vs. State of Bihar), decided on 31st. January 2020, is also relevant in view of which a Magistrate enquiring under 202 of the CrPC is required to see whether even a prima facie case of commission of an offence is made out or not and whether criminal proceedings initiated is abuse of process of law and / or whether the dispute is of civil nature. I quote below the observation of the Apex Court:
" It cannot be disputed that while holding the inquiry under Section 202 Cr.P.C. the Magistrate is required to take a broad view and a prima facie case. However, even while conducting/holding an inquiry under Section 202 Cr.P.C., the Magistrate is required to consider whether even a prima facie case is made out or not and whether the criminal proceedings initiated are an abuse of process of law or the Court or not and/or whether the dispute is purely of a civil nature or not and/or whether the civil dispute is tried to be given a colour of criminal dispute or not."