Intervention Of Third Parties Including Defacto Complainant In Criminal Proceedings
Brahmadandi Ramesh, Advocate
Telangana and Andhra Pradesh High Court
Email Id : email@example.com
Date : 07/06/2022
Location : H.No. 1-8-93/2, Bagh Lingampally, Hyderabad - 500 044, State - Telangana
📱 +91 9396530946, 9030030946
Intervention Of Third Parties Including Defacto Complainant In Criminal ProceedingsDiscussion over the Legality of Intervention by a third party in a Criminal Proceedings has drastically changed over a time. That traditionally No Stranger has a right to intervene in the criminal proceedings in "Thakur Ram v. State of Bihar" cited in AIR 1966 SC 911 : 1966 SCR (2) 740 the Apex court had held that "the state will take all necessary steps on behalf of the aggrieved party in criminal matters by making the state the custodian of the social interests of the community at large, the court ruled out the locus standi of any private party that tries to intervene". 2. "Locus Standi" refers to the Legal capacity of a person to take a stand before the court, it is the right of a party or a person to prove before the court its stand due to its connection to and harm from the law or action challenged to support that party's participation in the case. The existence of Locus standi is necessary for any legal process of approaching the courts i.e., filing a suit or an action before the court, if the person lacks "Standi" to appear in the case the court may reject their arguments without going into the facts, merits of the case. 3.The intervention of third parties clearly cited in "Rajubhai Dhamirbhai Baria v. State of Gujarat" cited in 2004 CriLJ 771 : (2004) 1 GLR 404. It iterated the settled position of third parties having no locus standi for intervention in the criminal Proceedings. The Code of Criminal Procedure also makes it clear that Strangers have no right to appear before the court. 4. Subsequently the judgment given in "Subramanian Swamy v. Raju" cited in (2014) 8 SCC 390 stands on the same principle but recognizes the limited rights of third parties in certain exceptional situations. 5.The contention of the people who support the right of the third parties to intervene in the criminal proceedings that one of the fundamental principles of the criminal justice system is that wrong done to anyone is a wrong done to society. So, any person on behalf of society must have a right to seek justice. 6. In Criminal Proceedings, the State prosecutes the offender and the de-facto complainant or the victim does not have much role in the prosecution of the offender. However, this view has ironically changed after the Code of Criminal Procedure amendment Act 2008(5 of 2009), wherein certain amendments were made in the Cr.P.C to facilitate the participation of victim in criminal prosecution of an offender. 7. That according to Section 2(wa) definition of 'victim' has been added quoted herein below: 2(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir; 8. It is pertinent to mention that in Sub Section 8 of Section 24 of Cr.P.C a proviso has been added whereby court was authorized to permit the victim to engage an Advocate of his choice to assist the prosecution. The relevant provision of Section 24(1) and 24(8) are,
a) Section 24 relates to Public Prosecutors which states as infra:
(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(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.
[Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.]Further the victim is also given right to prefer an appeal under Section 372 Cr.P.C.
b) Section 372 relates to No appeal to lie unless otherwise provided
No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.9. From the above it is clear that legislature made certain amendments vide Act No. 5 of 2009 in Cr.P.C. by adding definition of victim and giving rights to victim to engage counsel of his choice during prosecution of accused under section 24 and also giving right to file an appeal under section 372. 10. The Hon'ble High Court at Allahabad in Lokesh Singh v. State of Uttar Pradesh, reported in 2013 (83) ACC 379, observed that the objective to be achieved by the aforesaid amendment as per proviso added in Section 24(8) of Cr.P.C seems to extend help the victims and to give more active role in dispensation of the criminal justice and to provide active participation of the victim in the justice delivery system keeping in view the concept of fair trial enshrined under article 21 of the Constitution of India. 11. Section 301 Cr.P.C provides that the Public Prosecutor or Assistant Public Prosecutor in-charge of a case may appear without any written authority before any court in which that particular case is under inquiry, trial or appeal. Sub-section 2 provides that if any private person instruct a pleader to prosecute any person in any court, the Public Prosecutor in charge of the case shall conduct the prosecution and pleader so instructed shall act therein under the direction of Public Prosecutor and may with the permission of the court submit written arguments after the evidence is closed in the case. Section 301 Cr.P.C. has not been amended vide Act No. 5 of 2008.
a. Proviso added to section 24(8) Cr.P.C, provides that victim defined in Section 2(wa) may be permitted to engage an advocate of his choice to assist the prosecution under this sub-section. Sub-section 8 provides appointment of Special Public Prosecutor, different from Public Prosecutor appointed under Section 7 of Sub-section 24 of Cr.P.C. The basic distinction drawn in the statute by introducing the proviso that if the victim defined under Section 2(wa) Cr.P.C, is permitted to engage a lawyer he will acquire status of Special Public Prosecutor subject to riders imposed under the proviso.
b. In proviso added to Section 24(8) Cr.P.C, the words used are "assist the prosecution" and not to 'assist the public Prosecutor' as mentioned in Section 301 Cr.P.C. There is difference in the scheme of two sections. From 6 perusal of Subsection 2 of section 301 Cr.P.C. made it clear that if in any case private person instructs a pleader to prosecute any person in any court even though the Public Prosecutor in charge of case shall conduct the prosecution and the pleader instructed shall act therein under the directions of the Public Prosecutor. Up to this stage no permission of court is needed for appointment of pleader by a private person. The permission is only required to the pleader if he wants to file written argument in the case. However after insertion of proviso to Section 24(8) Cr.P.C. the court can permit a victims advocate to assist the prosecution. The status and position of Advocate engaged by the victim would be changed because in that situation the court at the very inception may permit the Advocate of the choice of the victim to participate in the proceeding and to assist the prosecution and not to the public prosecutor. Prosecution includes investigation, enquiry, trial and appeal within the meaning of Section 24 Cr.P.C. Section 301 Cr.P.C. deals with only inquiry, trial or appeal. Inquiry has been defined in Section 2(g) Cr.P.C., means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. As such inquiry is different from investigation as defined in Section 2(h) Cr.P.C.12. In view of the aforesaid definition the 'end' for which a plan or project is carried out is called prosecution. In respect of proviso to Section 24(8) Cr.P.C. prosecution in respect of an offence begin with putting the law into motion by any aggrieved party or sufferer of crime. The 'end' in a prosecution within the meaning of proviso to Sub Section 8 of Section 24 Cr.P.C. would be adjudication of guilt of an offender who is charged with commission of an offence in accordance with procedure established by law in a court constituted under this code. So the prosecution starts with giving information of commission of crime and continued during investigation or inquiry, trial of offender and if any appeal is filed finally end by an order passed in appeal. 13. The whole scheme if taken into consideration for prosecution and trial of an accused the dominant role is played by the public prosecutor but by insertion of proviso to Section 24(8) Cr.P.C. the Court is now authorized to permit the victim to engage a lawyer of his choice to assist the prosecution. The prosecution of an offender is virtually carried out in the court of law constituted under some statute presided over by a judge and not by any party to the proceedings. The public prosecutors, the advocate of the accused or 9 special counsel appointed by the aggrieved person or the Advocate engaged by a victim, all are officers of the court. They all assist the court to arrive at truth during prosecution of an accused. Therefore in Section 24 or in section 301, phrase 'with the permission of court' is used. So, once the permission is accorded to the advocate of the victim to assist the prosecution his assistance could not be restricted to the terminology of Section 301, i.e. only to assist the prosecutor. The court in view of the same can permit to advance the oral argument too to the advocate engaged by the victim apart from submission of the written argument. The importance of oral argument cannot be outweighed by saying that right to written argument has been given in Section 301 Cr.P.C. 14. Section 301 Cr.P.C. explicates and envisages that
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.15. Section 301 Cr.P.C. does not say that oral argument cannot be permitted to an advocate engage by the victim. It only prohibits that if a private party engaged a pleader he can assist the public prosecutor and court may permit him to file the written argument. There is difference between the pleader and advocate. Advocate is treated to be officer of the court and supposed to assist the court in arriving at the truth, so, right to address the court to an Advocate cannot be curtailed while representing his client in the light of provisions of Advocates Act. 16. In view of the Judgement delivered by Hon'ble Apex Court in Poonam v. Sumit Tiwari, reported in AIR 2010 SC 1385, discussed the importance of assistance of a lawyer in the light of Section 35 of Advocates Act and observed that in absence of proper assistance to Court by the lawyer, there is no obligation on the part of the Court to decide the case, for the simple reason that unless the lawyer renders the proper assistance to the Court, the Court is not able to decide the case properly. It is not for the Court itself to decide the controversy. The counsel cannot just raise the issues in his petition and leave it to the Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the Court itself to find out what the points 10 for determination can be and then proceed to give a decision on those points. In case counsel for the party is not able to render any assistance, the Court may decline to entertain the petition. Moreover if the petition is decided in such cases the judgment given may be violative of principles of natural justice as the opposite counsel would not "have a fair opportunity to answer the line of reasoning adopted" in this behalf. 17. Having regard to the above discussion, it is vivid & pellucid that under Cr.P.C it is possible to allow third-party intervention in criminal proceedings. The only problem that arises is with respect to a trial before a Court of Session. Section 302 speaks about trial before a Magistrate. This has to be read with Section 225 Cr.P.C which states that, in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. In my opinion, it makes sense to permit third party intervention in criminal cases. Conclusion: In the recent years United kingdom Courts have begun allowing third parties intervention that mostly consist of public bodies NGO's etc Unlike in constitutional matters, interventions by a private party are only allowed when it has been established that the decisions of the court hearing the case will have much greater implications in the society or a section of society. Even an example where the London recognized the interveners' contribution was the 2013 case of Hughes cousins-chang was arrested and held overnight with no access to reach his parents or an adult. Despite being a seventeen years old, he was treated an adult. The Haward League on panel reform and Coram Children's legal center was granted a permission to intervene to make legal arguments on the rights of the young people in the criminal justice. Hence from the above discussions with respect to the Intervention of third parties in criminal Proceedings is extended but under different circumstances though it is the rare situation as the state considers itself well equipped and motivated to meet the ends of justice conclusively it could be said that the intervention of third parties are envisages under CrPC not as the Legal right but rather as a safeguard embedded to ensure complete justice.
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