In 2003, the Report of the Committee on Reforms of Criminal Justice System under the Chairmanship of Dr. Justice V.S. Malimath recommended that victim or their legal representativesshould be impleaded as a party in every criminal proceedingwhere the charges are punishable with imprisonment of 7 years or more. Thereafter, the Legislature recognized the rights of victims through the Code of Criminal Procedure (Amendment) Act, 2008 (“2008 Amendment Act”). The Code of Criminal Procedure, 1973, (“Code”) recognizes the victim’s right toparticipate under Section 439(1A) i.e., the presence of the “informant” or any authorized person is obligatory at the time of the hearing. Further, proviso to Section 372 recognizes the right of the victim to prefer an appeal.
This article will explore the varying interpretations and implementations of the Jagjeet Singh v. Ashish Mishra @ Monu& Anr. by the various High Courts. Furthermore, although the Supreme Court in Jagjeet Singh dealt with the issue of victim’s right to hear in bail matters, the present piece is not restricted tothe same. Additionally, it delves into how the rights of a victim to be heard shift shape under the Code and under various Special Statutes, which were left unaddressed by the highest court.
The Supreme Court in Jagjeet Singh, while differentiating ‘victim’ from ‘complainant/informant’, observed that the rights of the victim are independent, incomparable, and not accessory or auxiliary to those of the State under the Code, and they havethe legal right to be heard at every stage. The victim hasunrestricted “participatory” rights from the commencement of the investigation till the culmination of appeal or revision proceedings. It’s imperative to note here, that the Court did not express its stance on the right of impleadment.
Is Right to Participate equivalent to Right to be Impleaded?
The question whether victim is a “necessary party” to be impleaded in the hearing of an application for bail was referred to the Division Bench of the High Court of Rajasthan in Pooja Gurjar v. State of Rajasthan by the Single Judge in Nitoo Singh v. State, Crl. Misc. Bail Appl. No. 9490/2023. The court held that there is no provision under the Code that provides for the impleadment of a victim as a ‘necessary party’. If Nitoo Singh is given effect, the accused will be incarcerated until notice to the victim is served and they enter an appearance. Such a process stalls the right of the accused under Article 21 of the Constitution. Emphasizing on the definition of victim u/s. 2(wa)of the Code, the Court said that it would be a hassle to serve upon all those who fall under its ambit.
In Saleem v. The State of NCT of Delhi, the High Court of Delhi clearly distinguished between the ‘right to be heard’ and the ‘right to be impleaded.’ The court observed that even Section 439(1A) of the Code does not require that a victim “be made party to such proceedings”; hearing u/s. 439(1A) is to be conducted without arraying the victim as a party. Similarly, in Vivek Kumar Gaurav v. Union of India, a PIL before the Court sought directions to supply a copy of the police report to the victim/complainant at the stage of cognizance to enable their right to participate in pre-trial proceedings. The court held that “there is no mandate in the statute obliging the criminal court to issue notice” at pre-trial stage.
Further, the Gauhati High Court while considering an application for suspension of sentence and grant of bail u/s. 389(2) of the Code in Johirul Islam v. The State of Assam & Anr., held that the ratio in the Jagjeet Singh case does not make it a legal proposition requiring the Appellate Court to implead and hear the victim at the stage of Section 389. The court, not being persuaded by the submission of the Additional Public Prosecutor, added that it becomes obligatory on the court to hear the victim when they approach the court themselves.
The abovementioned view advocates that the Legislature intentionally omitted to add “victim” in Section 207 of the Code. Further, Section 24(8) r/w Section 301 of the Code recognizesthe right of the private pleader to ‘assist’ the Public Prosecutor with the leave of the court. Additionally, great concern was reflected that such a practice would make it difficult to conceal the identity of the victim in cases of sexual offences.
However, in 2020, the Ministry of Home Affairs, Government of India, issued directions to all States and UTs to supply a copy of the police report to the victim or informant, free of cost. Nonetheless, the application of direction is limited to the prosecution of cases of rape and penetrative sexual assault, and aggravated penetrative sexual assault under the Protection of Children from Sexual Offences Act, 2012.
While some High Courts have given the judgement an incongruous interpretation, the High Court of Kerala, in AnezAnzare v. State of Kerala, relying on Jagjeet Singh held that a Foundation espousing the claim of a victim has a right to be heard. Since the judgment gave an unrestrained interpretation to ‘victim’, the consequential effect would lead to insurmountable delays in process of delivering justice. The High Court of Jharkhand passed an order to implead the victim (issued notice) at the insistence of the Public Prosecutor. Furthermore, in the light of Jagjeet Singh, the High Court at Calcutta in Sk. MotiarRahaman v. The State of West Bengal extended the right to challenge the quantum of sentence by the victim. Notably, such a right enumerated u/s. 377 of the Code is vested only with the State. In another case before the High Court of Uttarakhand,where the matter merely pertained to the registration of two FIRs having the same number, the court again, by relying on Jagjeet Singh permitted the victim’s right of hearing. On the subsequent date, the court was seen granting time to the “private” counsel for the victim to file a counter affidavit.
A review of the orders reveals that such a practice contributes to the delay in the process of adjudication and exacerbates the existing burden. As underscored in Saleem (supra), even after being granted the right to be heard, the capacity of participation varies depending on the “context and stage” of the proceeding.
Application under Special Statute(s)
The string of cases under special enactments will indicate that the Supreme Court’s ruling in Jagjeet Singh falls out of line in implementation either due to statutory limitations on victim’s right to be heard or due to the interpretation by the courts under the respective statutes.
The High Court of Bombay in Aniket v. State of Maharashtraheld that in cases where the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST Act”) and the Protection of Children from Sexual Offences Act, 2012, (“POCSO Act”) both are involved, the victim does not have a right to appeal against an order of the Special Court granting bail u/s. 14A of the SC/ST Act. As the POCSO Act prevails over the SC/ST Act and the former does not contain a provision akin to Section 14A of the SC/ST Act i.e., right to appeal against any judgement, sentence, or order. In another case, where the appellant had made the victim a party in his appeal under the POCSO Act, the Court held that issuing notice to the victim does not make the presence of the victim or the victim’s parents/guardian obligatory.
In Ramesh Rai v. State of U.P., the High Court of Allahabad dealt with the question, whether a victim of a predicate offence can claim a right of hearing under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. Whilediffering with the view of the Coordinate Bench in Zeba Rizwan v. State of U.P., the Court held that if a victim of a predicate offence can appeal against the order granting the bail, he has a right to oppose the bail.
In Shailesh Bhanwarlal Bhandari v. State of Gujarat, the applicant wanted to be impleaded as a party in an application for anticipatory bail as he faced damage to his reputation. TheCourt, among other reasons, held that the prosecution is under the Gujarat Prohibition Act, 1949, where the police is the complainant, hence, he had no right of being a party. Acomplainant whose case has been instituted u/s. 138 of the Negotiable Instruments Act, 1881, does not have the right to challenge the order of acquittal on the basis of proviso to Section 372 of the Code. As such, the ‘complainant’ is not a “victim” under Section 2(wa) of the Code, as was held by the High Court of Kerala.
Conclusion
The Bharatiya Nagarik Suraksha Sanhita, too, does not make any change in the right of victims to be heard. The contrasting interpretation of the Supreme Court’s ruling by the High Courts reflects a deep cleavage in the rights of victims based on theirterritorial limits. Though the Apex Court adjudicated with a progressive and beneficial intention, due to the existing vacuum in the statutes, the High Courts are not uniform in their interpretation and implementation. Further, the judgment does leave some ends loose by making a generalised statement upholding the rights of the victim to participate, and by not addressing the issues of impleadment, appearance, and application of the judgment under Special Statutes except the SC/ST Act.