KHUMUKCHAM NIKITA DEVI Vs. STATE OF MANIPUR

JUDGEMENT

(1.) 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 Sec. 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 Sec. 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 Sec. 24(8) Cr.P.C and in support of his contention, he has relied upon the decisions of the Honourable 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 Honourable Supreme Court in Delhi Domestic Working Women's Forum Vs. Union of India, reported in (1995) 1 SCC 14 wherein four domestic servants were subject to indecent sexual assault by seven army personnel in a Train. The Honourable 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: