Kh. Nobin Singh, J.Heard Shri Kh. Mani, the learned Senior Advocate appearing for the applicant/ victim and Shri N. Ibotombi, the learned Senior Advocate appearing for the respondent/main applicant and Shri N. Kumarjit, the learned Advocate General & Shri R.K. Umakanta, the learned Government Advocate for the State respondents.

2. The instant application has been filed by one of the conducting counsels appearing for the applicant/ victim praying for allowing them to assist the learned Public Prosecutor in the above application being AB Case No.11 of 2017 filed by the respondent/ main applicant and in support thereof, an affidavit has been filed by the applicant/ victim. A counter affidavit has been filed to the said application by the respondent/ main applicant raising objections as regards the maintainability of the said application. Therefore, before considering the case on merit and in order to decide the issues with respect to the maintainability of the application, on 21-06-2017 the matter was directed by this court to be listed on 23-06-2017 for consideration.

3. During the course of hearing, Shri N. Ibotombi, the learned counsel appearing for the respondent/ main applicant raised two points - one, under the proviso to Section 24(8) of the Criminal Procedure Code, the applicant/ victim is not entitled to engage her own advocate in the facts and circumstances of the present case and two, the application is not maintainable for the reason that the same is not signed by the applicant/ victim herself but signed by one of her conducting counsels. As regards the first point, the submission of the learned counsel appearing for the respondent/ main applicant is that Section 24(8) provides for appointment of a Special Public Prosecutor and proviso thereto applies only to a case where a Special Public Prosecutor has been appointed by the State Government or the Central Government. The expression "under this sub-section" mentioned in the proviso, has been given emphasis to substantiate his contention. According to him, since no Special Public Prosecutor has been appointed by the State Government or the Central Government in the above case, the question of application of the proviso will not arise and consequently, the engagement of an advocate by the applicant/ victim of her choice will not arise at all. On the other hand and in order to counter the above contention, Shri Kh. Mani, the learned Senior Advocate appearing for the applicant/ victim has submitted that a victim can engage her own advocate under the proviso to Section 24(8) Cr.P.C and in support of his contention, he has relied upon the decisions of the Honble Supreme Court as well as the decisions rendered by various High Courts in the country. The first decision that he relied upon, is the one passed by the Honble Supreme Court in Delhi Domestic Working Womens Forum v. Union of India, reported in (1995) 1 SCC 14 [LQ/SC/1994/990] wherein four domestic servants were subject to indecent sexual assault by seven army personnel in a Train. The Honble Supreme Court, after considering various circumstances including the fact that there has been an increase in violence against women causing serious concern, laid down the broad parameters in assisting the victim of rape at para 15 of its judgment and order which is as given under:

"15. In this background, we think it necessary to indicate the broad parameters in assisting the victims of rape. (1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well-acquainted with the criminal justice system. The role of the victims advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assit. her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainants interests in the police station represent her till the end of the case.

(2) Legal assistance will have to be provide at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

(5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.

(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.

(7) It is necessary, have regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board, Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape."

Secondly, in Surjit Singh v. Mahanagar Telephone Nigam Ltd., reported in (2009) 16 SCC 722 [LQ/SC/2008/937] wherein the issue relating to the interpretation of Rule 443 of the Telegraph rules arose for consideration, the Honble Supreme Court held:

"22. Though, no doubt, ordinarily the literal rule should be applied while interpreting a statute or statutory rule, but the literal rule is not always the only rule of interpretation of a provision in a statute, and in exceptional cases the literal rule can be departed from. As observed in the Constitution Bench decision of this Court in R.L. Arora v. State of U.P. : AIR pp. 1236-37, para 9.

"9. ... Further, a literal interpretation is not always the only interpretation of a provision in a statute and the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used in a provision of the statute. It is permissible to control the wide language used in a statute if that is possible by the setting in which the words are used and the intention of the law-making body which may be apparent from the circumstances in which the particular provision came to be made."

(emphasis supplied)

Hence it follows that to interpret a statute one has to sometimes consider the context in which it has been made and the purpose and object which it seeks to achieve. A too literal interpretation may sometimes frustrate the very object of the statute, and such an approach should be eschewed by the court."

Thirdly, in State of Kerala & anr. v. B. Six Holiday Resorts Private Limited, reported in (2010) 5 SCC 186 [LQ/SC/2010/69] wherein the subject matter in issue relates to non-grant of FL-3 Licence under the Foreign Liquor Rules in view of the proviso being substituted by another one to the effect that no new licences under this rule shall be issued. One of the issues which arose before the Honble Supreme Court was as to whether the amendment to Rule 13(3) of the Foreign Liquor Rules substituting the last proviso is valid or not. The Honble Supreme Court held:

"32. A proviso may either qualify or except certain provisions from the main provision; or it can change the very concept of the intendment of the main provision by incorporating certain mandatory conditions to be fulfilled; or it can temporarily suspend the operation of the main provision. Ultimately the proviso has to be construed upon its terms. Merely because it suspends or stops further operation of the main provision, the proviso does not become invalid. The challenge to the validity of the proviso is therefore rejected."

Fourthly, in Sathyavani Ponrani v. Samuel Raj, Crl.O.P (MD) No. 5474 of 2010 decided by the Honble Madras High Court on 07-07-2010 wherein the issue was as to whether a victim is entitled to be heard and take part in a criminal proceeding or not. The Honble High Court, keeping in mind the principles laid down by the Honble Supreme Court in various cases coupled with the messages conveyed by the Constitution of India under Article 14, 21, 38 and 39A that free and fair trial is sine qua non of Article 21 of the Constitution, examined the said issue and while examining the said issue, the Honble High Court had minutely considered the scope of Section 301 and 24(8) of the Criminal Procedure Code as well as the decision of the Honble Supreme Court in Delhi Domestic Womens Forum case (supra) and was of the view that there cannot be any bar for a victim to engage a lawyer and permit him to conduct the case by way of assisting the prosecution. Referring to and relying upon this judgment and order, the Honble Karnataka High Court in Shankar v. State of Karnataka in Criminal Petition No. 11144 of 2011 has held:

"5. The point for consideration that arises in the present petitions has come up for consideration before a three Judge Bench of the Apex Court in the case of Shiv Kumar v. Hukam Chand and another reported in (1997) 7 SCC 467. The appellant in that case was aggrieved because the counsel engaged by him was not allowed to the High Court to conduct the prosecution in spite of obtaining a consent from the Public Prosecutor concerned. The appellant wanted his counsel to be permitted an active role and the Court had permitted the participation of the counsel engaged by him to conduct the prosecution, however, under the supervision, guidance and control of the Public Prosecutor and that the Public Prosecutor would retain with himself the control over the proceedings. This was questioned by the accused before the High Court and the High Court in turn, directed that the role of the counsel engaged to act under the directions of the Public Prosecutor and with the permission of the Court to submit written arguments after the evidence was closed in the case and further directed that the Public Prosecutor shall conduct the prosecution. Even though the trial was completed, in that case by the time the matter was heard by the Apex Court, the question raised before the Apex Court was however, considered at length in order to settle the legal position. The Apex Court, with reference to Section 302, has opined that the same is intended to apply only to the Magistrate courts whereby it enables the Magistrate to permit any person to conduct the prosecution. The only rider is that Magistrate cannot give such permission to a police officer below the rank of an Inspector. Such person need not necessarily be a Public Prosecutor and has further expressed that, in the Magistrates Court, anybody except a police officer below the rank of Inspector can conduct the prosecution, if the Magistrate permits him to do so. Once the permission is granted, the person concerned can appoint any counsel to conduct the prosecution on his behalf in the Magistrates Court. But, the above laxity is not extended to other courts. Further, with reference to Section 301 read with Section 225, the Court has pointed out that Section 301 is applicable to all courts of criminal jurisdiction. It was further pointed out that sub-section (1) of Section 301 empowers the Public Prosecutor to plead in the Court without any written authority, provided he is in charge of the case. Sub-section (2) imposes a curb on a counsel engaged by any private party. It limits his role to act in the court during such prosecution under the directions of the Public Prosecutor. The only other liberty which he can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the court permits him to do so. The Court has then expressed that the scheme of the Code indicates the legislative intention hat prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The intention is to ensure fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If the accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle or conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct the prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why the Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case of a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role, the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 224 of the Code of a dead letter".

Fifthly, in Lokesh Singh v. State of U.P., Crl. Misc. Case No. 3769 of 2013 wherein the issue was as to whether an advocate engaged by the victim of the case has right to address the court after conclusion of the trial or not. In a session trial under Section 302 r/w 120-B IPC, the petitioners therein under Section 24 (8) Cr.P.C sought for permissions for advancement of oral argument along with the Public Prosecutor, which were declined by the court. The Honble High Court held:

"24. Section 301 Cr.P.C. has not been amended vide Act No. 5 of 2008. The insertion in the statute book, the proviso to Section 24 (8) added by Act No. 5 of 2008, whether in any way, effects the provision of Section 301, is sole question for consideration before the Court. Proviso added to section 24 (8) Cr.P.C. provides that victim define 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 Persecutor 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.

25. In proviso added to Section 24(8) Cr.P.C the word 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 perusal of Sub-section 2 of section 301 Cr.P.C. made it clear that if in any case private person instruct 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 want to file written argument in the case. However after insertion of proviso to Section 24(8) Cr.P.C. the court can permits 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 include 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.

28. 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 authorised 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 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 termanalogy 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 importances of oral argument cannot be out weight by saying that right to written argument has been given in Section 301 Cr.P.C.

35. Hence, this Court is of the view that after insertion of proviso to Section 24(8) Cr.P.C. if the court permits the victim to engage an advocate of choice, the court thereafter cannot deprive the Advocate to address the court in addition to his right to file the written argument as contained in Section 301 Cr.P.C. after close of evidence.

38. The Advocate appointed by the victim should be permitted to assist the court by supplementing the arguments already advanced by Public Prosecutor by oral submissions in addition to written argument if any filed by him."

4. Shri N. Kumarjit Singh, the learned Advocate General, Manipur who was requested by this court to assist the court, has supported the contention of the learned counsel appearing for the applicant/ victim by relying upon the decision rendered by the Honble Supreme Court in Shiv Kumar v. Hukam Chand & anr., reported in (1999) 7 SCC 467 [LQ/SC/1999/806] wherein the appellants engagement of a private counsel was objected to by the respondent and in a revision filed by the appellant, the Honble High Court allowed it and directed that the lawyer appointed by the complaint or private person shall act under the directions from the Public Prosecutor. When the appeal came up before the Honble Supreme Court, it found that the same did not warrant any interference and held :

"13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the public prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.

14. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Sections 225 of the Code of a dead letter."

He has further placed reliance in Santu Mahto v. The State of Jharkhand, BA No. 2680 of 2014, the High Court of Jharkhand has consider the question as to whether the informant and the victim, who are the ultimate sufferers of a criminal case, have the right to appear through a private lawyer as per the provisions contained under Section 301(2) of the Cr.P.C as well as the law laid down by the Honble Supreme Court in the case of J.K. International case or not. The Honble High Court, after examining various decisions of the Honble Supreme Court as well as the provisions of Cr.P.C. came to the conclusion that on conjoint reading of the amended proviso to Section 24(8) and 301(2) of CR.P.C, the legislature intention is evident that a victim or a private person has locus to appeal through a pleader to assist the prosecution in any case where enquiry, trial or appeal is pending before any court and appearance of a private person or a pleader be regulated by the court in any such criminal proceeding in accordance with the policy of criminal procedure code.

5. It is an undeniable fact that in our criminal justice system, it is the prosecution which has to prove the guilt of the accused for the reason that the offence alleged to have been committed by the accused, is against the society/ public including the victim or an aggrieved person. The Public Prosecutor to be appointed under Section 24 of the Cr.P.C, is an officer of the court and is bound to assist the court. Any person appointed as the Public Prosecutor, shall uphold the dignity of this officer with a full sense of responsibility. With the scope of Article 21 of the Constitution of India being expanded by the Honble Supreme Court to the effect that right to fair trial is inherent in the concept of due process of law, the right to engage an advocate by the victim draws a parity from it. Section 301 (1) of the Cr.P.C provides for appearance by the Public Prosecutors in any court where a case is under enquiry, trail or appeal. Under Section 301 (2), if a private person instructs a pleader to prosecute any person in any court, he can do so subject to the condition that he shall act under the directions of the Public Prosecutor or Assistant Public Prosecutor, as the case may be and he may submit written arguments with the permission of the court. Section 24 relates to the appointment of Public Prosecutors and by way of an amendment of Cr.P.C, a new proviso has been added to Section 24(8) which empowers the court to permit the victim to engage an advocate of his choice. Simultaneously, the expression "victim" has been defined in Section 2(wa) as 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 include his or her guardian or legal heir. The idea behind this amendment of the Cr.P.C, is evident from the objects and reasons which are reproduced herein below:

"Amendment Act 5 of 2009. - Statement of Objects and Reasons:- The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant -cases, compounding of offences, victim-ology, special protection in respect of women and inquiry and trial of persons of unsound mind. Also, as per the Law Commissions 177th report relating to arrest, it has been found necessary to revise the law to maintain a balance between the liberty of the citizens and the societys interest in maintenance of peace as well as law and order.

The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential, rich and powerful. At present, the victims are the worst sufferers in a crime and they dont have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system. The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimise the risk of escape of the remand prisoners during transit and also facilitate utilisation of police personnel for other duties. There is an urgent need to provide relief to women, particularly victims of sexual offences, and provide fair trial to persons of unsound mind who are not able to defend themselves."

The relativity and comparison between these provisions namely Section 24(8) and Section 301 was considered on various occasions by the High Courts in the country, in the context of an engagement of an advocate by the victim, which came to the conclusion that both the sections are complimentary to each other rather than conflicting. Proviso to Section 24(8) is, in other words, an expansion of Section 301 of the Cr.P.C. Both proviso under Section 24(8) and Section 301 have to be read together. The cumulative effect of these provisions read with Article 21 of the Constitution makes it very clear that a victim has a right to take part in the prosecution by engaging an advocate of his/ her choice. It may be noted that even before the amendment of the Criminal Procedure Code by which the proviso to Section 24(8) came to be inserted, the Honble Supreme Court in the case of Delhi Domestic Working Womens Forum (supra) has already dealt with the legal assistance to be provided to a victim of rape. The Honble Supreme Court has held that the victim of a sexual assault will have to be informed about her right to be represented by a lawyer and the complainant is entitled to be provided with the legal assistance of a lawyer who is well acquainted with the criminal justice system. Such a lawyer appointed by the victim will have to explain her, the nature of the proceedings, to prepare her for the case and to assist her to get help both in the police station and in the court. This decision appears to have been taken into account by the Law Commission of India while recommending the said amendment.

6. The views of the different High Courts are not unanimous as regards the extent of the role to be played by an advocate engaged by the victim. The Honble Karnataka High Court took the view that the role of an advocate engaged by the victim is comparable with that of a junior advocate conducting the case of his senior in a court. He is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role, the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter. However, the Honble Allahabad High Court has taken a contrary view in the sense that it has held that after the insertion of proviso to Section 24(8) Cr.P.C, if the court permits the victim to engage an advocate of her choice, the court thereafter cannot deprive the advocate to address the court in addition to his right to file written argument as contained in Section 301 Cr.P.C after close of evidence. In other words, the advocate appointed by the victim should be permitted to assist the court by supplementing arguments already advanced by the Public Prosecutor by oral submissions in addition to written argument if any filed by him. Its view appears to have based on the interpretation of the expressions "assist the prosecution" and "assist the Public Prosecutor" and the relevant portions of its judgment and order passed in Lokesh Singhs case (supra) are as under:

"25. In proviso added to Section 24(8) Cr.P.C. the word 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 perusal of Sub-section 2 of section 301 Cr.P.C. made it clear that if in any case private person instruct 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 want to file written argument in the case. However after insertion of proviso to Section 24(8) Cr.P.C. the court can permits 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 include 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.

27. The prosecution has not been defined specifically in the light of proviso to Section 24(8) Cr.P.C. The meaning of word prosecution as defined in Webster Dictionary, 3rd Edition is as follows;

"the carrying out of a plan, project, or course of action to or toward a specific end."

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 individual 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 charge 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. This whole process is the pat of fair trial inbuilt in Article 21 of our Constitution. The word prosecution is also used in different sense in different situation. When word prosecution is used in defining the parties to criminal case it is used for the party who is siding the victim. When it used in respect of an accused means pending proceeding to ascertain the guilt of the accused. When an offence is committed it certainly committed against the society but the sufferer is called victim. The legislature for the first time insert provisions for protection of the right of victim in the Criminal Procedure Code and specially keeping in view being the worst sufferer of crime. Thus, the victim should not be kept aloof from the judicial process in which the wrongdoers is undergoing the process of ascertainment of his guilt for wrong committed by him. In this judicial process, by means of amendment made by Act No. 5 of 2008, the status of the victim has been improved from a silent expectator of proceeding before the court to a participant of the proceeding. Therefore, the word used in the proviso added to Section 24(8) Cr.P.C. is to assist the prosecution and not to assist the public prosecutor. Therefore there is basic difference in between the proviso to Section 24(8) and Section 301 Cr.P.C. It is true that section 301 Cr.P.C. has not been amended by Act No. 5 of 2008 but if the principals or harmonies construction is applied while interpreting the different provision of same statute like proviso to section 24(8) and Section 301 Cr.P.C., the letter and spirit inducted in proviso added to Sub-Section 8 of Section 24 of the Cr.P.C. cannot be diluted by saying that no amendment has been incorporated in Section 301 Cr.P.C.

28. 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 authorised 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 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 not be restricted to the termanalogy 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 importances of oral argument cannot be out weight by saying that right to written argument has been given in Section 301 Cr.P.C.

The Honble Madras High Court took a similar view as that of the Honble Allahabad High Court when it came into the conclusion that engaging a lawyer in accordance with the proviso under Section 24(8) would mean permitting him to argue along with the Public Prosecutor and also in a given case to examine a witness, of course, with the permission of the court. But the court shall not allow any plea contrary to the case of the prosecution at the instance of the victim while assisting the prosecution. In Shiv Kumars case (supra), the Honble Supreme Court while examining the provisions of Section 301 of the Cr.P.C, has held that the second section which is sought to be invoked by the appellant, imposes the curb on a counsel engaged by any private party. It limits his role to act in the court during such prosecution "under the directions of the Public Prosecutor". A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why parliament applied bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor. The view of the Karnataka High Court as stated hereinabove, appears to be in line with that of the Honble Supreme Court.

7. It may be noted that the above decision of the Honble Supreme Court in Shiv Kumars case has been rendered prior to the amendment of the Cr.P.C by which proviso to Section 24(8) was inserted and that too, by examining only the provisions of Section 301 of the Cr.P.C. The learned counsels appearing for the parties have not brought to the notice of this court any other decision of the Honble Supreme Court rendered after the said amendment having been made, which laid down any law contrary to the views taken by the Honble Allahabad High Court and Honble Madras High Court. Be that as it may, the law which has been settled as aforesaid, is that a victim can engage a lawyer of her choice to assist the prosecution with the permission of the court. In the present case, the prayer in the application of the applicant/ victim is to allow her conducting counsel to assist the prosecution for smooth process for the end of justice and therefore, the said law will have the application to the facts and circumstances of the present case. So far as the second point is concerned, the learned counsel appearing for the applicant/ victim has submitted that the filing of such an application by the counsel is permissible under Rule 8 Chapter-IV of the Gauhati High Court Rules being presently applied in this High Court also. Moreover, in view of the settled law as regards the engagement of an advocate by the victim, the objection raised by the counsel appearing for the respondent/ main applicant is only a technical one, on the basis of which alone, this court is of the view, the application cannot be rejected by this court and at the same time, to allow the application will not prejudice the respondent/ main applicants right of fair trial.

8. For the reasons stated hereinabove, the application being CR (MC) No. 1 of 2017 is allowed with no order as to costs.