Rekha Murarka v. State of West Bengal: Arbitrarily Undermining the Victim’s Rights

By Aastha Agarwalla and Daksh Aggarwal



The principal aim of the administrative and judicial processes is to provide a mechanism to protect the interests, physical and psychological well-being and dignity of the victims of serious crimes. One of the prerequisites to achieve the same is to enable the sufferer to be defended and represented reasonably and satisfactorily in the court of law. Article 68(3) of the Rome Statute of the International Criminal Court (“ICC”) categorically establishes the rights of the victims to participate in the court proceedings by stating that the views and concerns of the victims may be presented by the legal representatives of the victims where the court considers it appropriate, in accordance with the Rules of Procedure and Evidence. It must be taken into consideration that according to the regulation 2 of the ICC, counsel shall include legal representatives of victims and privately retained counsel. Therefore, it is indisputable and irrefutable that the administration of justice is based upon providing adequate representation and protection to the victims.

In November 2019, in Rekha Murarka v. The State of West Bengal (“Rekha Murarka Case”), the Hon’ble Supreme Court (“SC”) opined that though a victim can engage a private counsel to assist the prosecution, such counsel could not be given the right to make oral arguments or examine and cross-examine the witnesses. [i] This judgment, inadvertently, results in a breach of faith as it limits the participation of the victim in the justice delivery mechanism by restricting the scope of using private prosecution as a workable solution. Simultaneously, it also throws light on the role of the Public Prosecutor (“PP”) as a credible confidant of the victim who is responsible for using every legitimate means to obtain justice.

In this blog piece, the authors aim to dissect the flawed reasoning of the judgment and its baffling interpretation of criminal law.

Legal Scrutiny of the judgment

In the Indian judicial procedure, the victim reposes trust in the government and criminal justice system and harbours expectations that the PP shall perform the duties with utmost sincerity and secure conviction of the offender. However, the PP as minister of justice is duty-bound to assist the court in arriving at a true and clear picture of the case, and hence the damage caused to the victim is incidental. This undesirable situation gives rise to an expectation gap and widens the trust deficit between the victims and PPs. However, the SC in the Rekha Murarka Case, while relying on the observations propounded by the Hon’ble High Court of Tripura in Smt. Usha Saha v. State of Tripura,[iii] held that the victim’s counsel has a limited right of assisting the prosecution, which solely extends to the right of suggesting questions to the court or the prosecution. In this regard, the SC has ignored the exiting deficiency of our criminal justice system and completely disregarded the viability of access of private counsel as a solution to the lack of victim representation in a criminal proceeding.

The highest judicial court did not pay heed to the recommendations proposed by the Committee on Reforms of Criminal Justice System 2003 headed by Dr. Justice V.S. Malimath (“Malimath Committee”). The Malimath Committee recommended the implementation of the right of the victim to be represented by a lawyer of his own choice, provided that the state bears cost of the lawyer in the criminal cases where the victim cannot afford one; right to participate in the proceedings which includes right to advance arguments after the prosecutor, right to know about the progress of the investigation and right to move to the court to ask for further investigation, inter alia.[iii] In 2007, the Madhav Menon Committee constituted a draft of the National Policy on Criminal Justice, concurring with the views expressed by Malimath Committee, that advocated for victim protection schemes in certain cases.[iv]

In light of the aforementioned recommendations, a proviso to Section 24 of the Code of Criminal Procedure (“Cr.P.C.”) in sub-section (8) was inserted by Criminal Procedure Amendment (Act) 2008 to ensure that the victims are adequately represented in the court of law.[v] The proviso inserted reads as “a victim may be permitted to engage an advocate of his choice to assist the prosecution.” The proviso allows the victim to take the liberty to engage a private pleader to assist the PP in the conduct of a criminal trial. The apex court while interpreting the proviso in the concerned judgment, categorically held that the prime role accorded to the PP cannot be diluted with the engagement of a private pleader by the victim and hence, the private party’s pleader is subject to the directions of the PP.[vi]

A number of High Courts in India have expressed their trepidation over the role of PPs in presenting the case of the victim efficiently and regarded private prosecution as a constitutional safeguard available to the victims. To buttress this claim, the Hon’ble High Court of Madras in Sathyavani Ponrani v. Samuel Raj opined that “…on a reading of the proviso under Section 24(8) of Cr.P.C, this Court is of the opinion that an advocate engaged by a victim will have to be permitted to take adequate part in a criminal proceedings (sic) thereby performing his role as an advocate representing the victim.”[vii] In similar terms, the Hon’ble High Court of Allahabad in Suneel Kumar Singh v. State of U.P. observed that “…if any adverse order in any proceeding is going to be passed against the prosecution, it is in the interest of justice to hear the Advocate of the informant/complainant in assistance of the prosecution.” The court also clearly differentiated between the two most noteworthy phrases­ – “assist the prosecution” and “assist the public prosecutor”. [viii] From a careful perusal of Sub-section 2 of Section 301 of Cr.P.C., it is correct to perceive that the prosecution shall be conducted by the PP even if any private person instructs a pleader to prosecute any other person in any court. However, proviso added to Section 24 (8) of Cr.P.C authorizes the advocate of the victim to actively participate in the criminal proceedings.

Exclusive Right over Cross-Examination: A Fanciful Mandate

The PPs, through the Rekha Murarka Case, received the mandate to operate as a monopoly in cross-examining the defence witnesses. The apex court also held that if the private counsel of the victim is allowed to function in the same capacity as that of the PP, then it would ‘constitute a parallel prosecution proceeding by itself’. One must note that the predominant role of cross-examination in improving the efficacy of a criminal trial cannot be gainsaid. “The exercise of the right of cross-examination is justly regarded as one of the most efficacious tests which the law has devised for the discovery of truth”. [ix] It would be no exaggeration to assert that that cross-examination is the most difficult branch of all duties of an advocate and this claim substantiated by Edward Cox when he writes that “cross-examination, ­­the rarest, the most useful, and the most difficult to be acquired of all the accomplishments of the advocate….”

In India, experience shows that the PPs are overburdened with cases and hence are not able to achieve the desired results for their clients. The state of affairs certainly suggests that there is a major mismatch between the number of public prosecutors and the cases, thereby overburdening the public prosecutors. [x] In such a scenario, denying the private counsel the opportunity to cross-examine the witnesses is the flagrant violation of the victim’s right to be satisfactorily represented in the court. Needless to say, that the private counsel, unlike the PP, can give sufficient attention to judge the human nature and traits of the witnesses to obtain favourable disclosures.


The highest court of the land in Nirmal Singh Kahlon v. State of Punjab  explicitly enunciated that the fair trial is a fundamental right of every citizen including the victims of the case under Article 21 of our Constitution, and the realm of fair trial includes fair and effective opportunities allowed by law to prove innocence.[xi] Hence, the denial of access of the private prosecution in cross-examination of the witnesses in a criminal proceeding by the apex court is repugnant to the principles of fair trial and thus violates the fundamental right of the victim under Part III of the Constitution.

By restricting the scope of the assistance of the private counsel in a criminal proceeding, the SC, has instigated a “secondary victimization” of the victims, particularly for victims of sexual offences. It’s important to provide relief to the victims of sexual offences by securing better representation of their sexual victimization in the court by the same person who has looked after their legal interests from the beginning. Thus, limiting the scope of the assistance by the victim’s private counsel restricts the integration of the victim’s lawyer into the adversarial criminal system, thereby collapsing the fundamentals of fair trial in the administration of justice. The authors hope that the SC reconsiders its decision and bandage the situation by giving an opportunity to the victim’s private counsel to participate in a criminal trial vigorously.

[The co-authors are second-year law students at Campus Law Centre, Faculty of Law, University of Delhi.]

[i] MANU/SC/1600/2019.

[ii] 2014 SCC OnLine Tri 859.

[iii] Committee on Reforms of Criminal Justice System, (March 2003), accessible at:

[iv] Report of the Committee on Draft National Policy on Criminal Justice, (July 2007), accessible at:


[vi] Supra Note 1.

[vii] 2010 (2) MWN (Cr.) 273.

[viii] 2019 SCC OnLine All 957.

[ix] Taylor, 12th Edn. s. 1428, p.910.

[x] State of U.P. v. Ajay Kumar Sharma, (2014) 3 SCC 568.

[xi] 2008 Cri LJ 4096.


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