Case Note & Summary
The petition arose from a criminal writ petition before the Bombay High Court challenging an order of the Magistrate dated 22 January 2025 granting audience to the first informant to orally oppose a discharge application filed by the accused. The FIR was registered at Byculla Police Station pursuant to directions under Section 156(3) of the Code of Criminal Procedure, 1973, and a charge-sheet was filed against the petitioner and others. The first informant had already been permitted by the trial court to intervene and then applied for enlargement of that right to oppose the discharge application orally. The Magistrate allowed that application, and the petitioner-accused challenged the order before the High Court. The core issue was whether the first informant has a statutory right to address the court orally by opposing the discharge application. The petitioner relied on Rekha Murarka v. State of West Bengal, State of Goa v. Rosario Ferrao, and Kishore Wadhwani v. State of Maharashtra to argue that no independent oral right exists. The respondent/first informant relied on Jagjeet Singh v. Ashish Mishra and Prakash Sheth v. State of Maharashtra to contend that the 2009 amendment widened victim rights and that he should be heard. The court analyzed the statutory scheme under the CrPC and BNSS. It noted that Section 24(8) proviso as inserted by the 2009 amendment allows a victim to engage an advocate to assist the prosecution, using the word 'assist' not 'coordinate'. The Supreme Court in Rekha Murarka limited that role to assistance, rejecting oral arguments and examination/cross-examination by the victim's advocate, while allowing the victim to route questions through the Public Prosecutor. The court also examined Sections 301 and 302 CrPC and corresponding Sections 338 and 339 BNSS. Section 301/338 permits a private pleader to act under instructions of the Public Prosecutor and to file written arguments with court permission, but does not permit oral arguments. Section 302/339 permits a private person to conduct prosecution entirely with Magistrate's permission, but only in trials before Magistrate. The court observed that if a private person is kept under entire control of prosecution, there will be greater responsibility. It also noted the distinction between sessions trial, where the Public Prosecutor opens the case under Section 225 CrPC/248 BNSS, and warrant trial before Magistrate, where no such provision exists under Section 238 CrPC/261 BNSS. The court reviewed precedents: Jagjeet Singh recognized victim's substantive right to address court at bail stage as a human right, but that decision did not consider Rekha Murarka. State of Goa v. Rosario Ferrao refused independent right to victim at appeal stage. Kishore Wadhwani decided prior to 2009 amendment and did not recognize independent right to audience. The available judgment text ends before the final operative order, so the final outcome is not mentioned. The court's analysis strongly suggested that the victim's role is limited to assisting the prosecution rather than making independent oral arguments at the discharge stage.
Headnote
A) Criminal Procedure - Right of Victim to Oppose Discharge - Discharge Application - Code of Criminal Procedure, 1973, Sections 24(8), 301, 302; Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 18(8), 338, 339 - The first informant was granted audience by the Magistrate to orally oppose the accused's discharge application. The court examined whether such independent oral right exists under the statutory scheme. Held that victim's advocate may assist the prosecution but cannot independently address the court orally, and the matter turned on the interpretation of Sections 301 and 302 CrPC and corresponding BNSS provisions (Paras 2-21). B) Criminal Procedure - Victim's Right to Engage Advocate - Section 24(8) Proviso CrPC and Section 18(8) Proviso BNSS - Code of Criminal Procedure, 1973, Section 24(8) proviso; Bharatiya Nagarik Suraksha Sanhita, 2023, Section 18(8) proviso - The 2009 amendment inserted proviso allowing victim to engage advocate to assist prosecution, using word 'assist' not 'coordinate'. The Supreme Court in Rekha Murarka limited this to assistance, rejecting oral arguments and examination/cross-examination by victim's advocate. Held that the victim's role is circumscribed to assisting the Public Prosecutor (Paras 9,15-17). C) Criminal Procedure - Private Pleader's Role in Prosecution - Sections 301 and 302 CrPC; Sections 338 and 339 BNSS - Code of Criminal Procedure, 1973, Sections 301, 302; Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 338, 339 - Under Section 301/338, a private pleader may act under instructions of the Public Prosecutor and file written arguments with permission, but cannot address oral arguments. Under Section 302/339, a private person may conduct prosecution entirely with Magistrate's permission, but only before Magistrate. Held that the two sections create distinct scopes, with Section 302 granting broader control, which entails greater responsibility (Paras 19-21). D) Criminal Procedure - Conduct of Prosecution by Public Prosecutor - Sessions Trial and Warrant Trial - Code of Criminal Procedure, 1973, Sections 225, 238; Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 248, 261 - In sessions trial, Section 225 CrPC/248 BNSS requires Public Prosecutor to open case by describing charge, whereas in warrant trial before Magistrate under Section 238 CrPC/261 BNSS there is no such provision. Held that these provisions indicate the statutory design for prosecution and impact victim participation (Para 18). E) Criminal Procedure - Victim's Substantive Right at Bail Stage - Jagjeet Singh v. Ashish Mishra - Code of Criminal Procedure, 1973, Section 2(wa) and Section 24(8) proviso; Bharatiya Nagarik Suraksha Sanhita, 2023, Section 2(1)(y) and Section 18(8) proviso - The Supreme Court recognized victim's right to address court at bail hearing as substantive, enforceable, and facet of human rights, independent of State, at every stage post offence. Held that this right is recognized at investigation stage but may not automatically confer independent oral argument at discharge stage (Paras 14,8). F) Precedent - Limit on Victim's Participation - Rekha Murarka v. State of West Bengal - Code of Criminal Procedure, 1973, Section 24(8) proviso - The Supreme Court considered expansive prayers by victim including oral arguments, objecting to irrelevant questions, examining witnesses, and cross-examining defence witnesses, and declined to approve them. Held that victim's advocate may assist prosecution and route questions through Public Prosecutor, with extent depending on facts and circumstances of each case (Paras 15-17).
Issue of Consideration
Whether the first informant has a right to address the court orally by opposing the discharge application filed by the accused under the Code of Criminal Procedure, 1973 and Bharatiya Nagarik Suraksha Sanhita, 2023.
Final Decision
The available judgment text analyzes statutory provisions and precedents but does not include the final operative order due to truncation.
Law Points
- Victim's right under 2009 amendment limited to assisting prosecution
- not independent oral arguments
- Section 301 CrPC and Section 338 BNSS permit private pleader only to file written arguments with permission
- not address orally
- Section 302 CrPC and Section 339 BNSS allow private person to conduct prosecution before Magistrate with permission
- victim's right at bail stage recognized in Jagjeet Singh is substantive and enforceable but not automatically extends to independent oral arguments at discharge stage
- extent of victim's assistance depends on facts and circumstances of each case
