Rights
of victim TO BE A PARTY OR BEING HEARD in F.I.R cases
In State cases i.e F.I.R cases,
the responsibility of registering complaint, carrying out investigation,
recording of statement of witnesses , verifying documents and/or getting CFL
test done of samples collected during investigation, filing of charge sheet are
the domain of state. Even after filing of charge sheet, it is the public
prosecutor on behalf of state in F.I.R cases, who seeks conviction of accused
and conducts cross examination of defence witnesses and also examine the
prosecution witness. In essence, the State cases is perceived as wrong committed
against society and not only the maintaining law and order, but for its
violation and committing offence, the state takes the matter forward.
Ironically, till recently, the roles and rights of the victims/complainants
hardly existed and it was not even perceptible. In such a situation, some time
if the prosecution failed to be diligent, the complainant in the ultimate
analysis suffered. The need was thus felt that complainant being the victim and
the one who raised complaint ought to have a role in State cases and their
roles should be well defined. The law is thus evolved in this regard of late.
In the present write up the roles and responsibility and its extent of
complainant or victim shall be analysed as regards the changes and
permissibility to the complainant to pursue or participate in cases as a
victim.
In this regard the Delhi High Court
has recently gone into the law vis a vis factual matrix of the case or cases in
a matter captioned as Saleem Vs The State of NCT of Delhi &
Anr bearing no. Bail Appln No. 3635/2022.
VICTIM HAS RIGHT TO FILE APPEAL
(1)
The Courts have been concerned about
the predicament of victim and the said concern finds mention in a judgment
rendered by Supreme Court in Mallikaarjun Kodagali (Dead) represented
through LRs Vs State of Karnataka & Ors (2019)2 SCC 752 wherein the
Supreme Court had highlighted the hurdles faced by the victim in accessing the
criminal justice system, after being the sufferer of violence and therefore the
victim can no longer be sidelined. The Supreme Court has in the context also
held that victim shall have the right to file an appeal against the acquittal of
the accused and that too without even seeking leave from the court. This is a
clear departure from convention that only state only shall have the prerogative
to prosecute the offender. This was so, as the notion that the crime is against
people at large and hence only state shall have the wherewithal and
responsibility to prosecute the case. The Mallikaarjun Kodagali (Supra) has therefore
clearly expanded the role of victim as elucidated above.
Victim has participatory rights in all stAges
(2) In a more recent verdict the Supreme Court in
a matter reported as Jagjeet Singh & Ors Vs Ashish Mishra alias
Monu & Anr (2022) 9 SCC 321 the Supreme Court has gone a step further and
observed:
“
The victims have “……a legally vested right to be heard at every step post the occurrence
of an offence…..;(they have) unbridled participatory rights from the stage of
investigation till the culmination of the proceedings in an appeal or revision….and
that mere presence of the State …”does not tantamount to according a hearing to
a “victim” of the crime.”
WHETHER
IMPLEADING OF VICTIM NECESSARY IN A CRIMINAL CASE
The right of participation and
even filing of appeal by the victim is thus clearly established. Another aspect
in this regard shall be worthy of discussion i.e whether the victim is required
to be impleaded in all criminal cases?
No doubt, that, though, the
victim has unbridled participatory rights in each stages of the criminal case,
but the victim shall not replace “State” and the right of heard shall not
necessarily mean that the victim should be made a party and be answerable in
all aspects. Moreover, section 439(1A) Cr.PC requires the Court to hear a
victim at the stage of considering bail petitions and other similar matters,
but the provision does not entail that the victim should be made a party to
such proceedings.
The Delhi High Court in Saleem
(Supra) has noted succinctly as under:
29. The role of the victim, even on being
afforded right to be heard, however must vary with the context and stage of criminal
proceedings. In relation to bail proceedings for eg. The victim may assist the
court in clarifying relevant facts, such as any threats received by the victim
or other witnesses; or the possibility of evidence tampering, or even fight risk.
However, the victim would have no role in determining, say, the necessity of
custodial interrogation, which would be the job of investigating agency”.
“30.
To reiterate, the right to be represented and be heard is distinct from the
right or the obligation to be a party to a criminal proceedings”.
31.
Indeed, there may be times where a victim may not seek a hearing before the Court,
and making a victim a party to the proceedings, mandating them to appear and “defend”;
so to speak, various proceedings that the State or the accused may initiate,
may cause additional hardship and agony to the victim”.
The hon’ble Delhi High Court in Saleem (Supra) in the context, as narrated
above, has recorded the following conclusion in para 33 of the said judgment:
33.1
There is no requirement in law to implead the victim, that is to say, to make
the victim a party, to any criminal proceedings, whether instituted by the State
or by the accused;
33.2
In accordance with the mandate of the Supreme Court in Jagjeet Singh (Supra),,
a victim now has unbridled participatory rights in all criminal proceedings in
relation to which the person is a victim, but that in itself is no reason to
implead a victim as a party to any such proceedings, unless otherwise
specifically so provided in the statute; Section 439(1A) Cr.P.C mandates that a
victim be heard in proceedings related to bail, without however requiring that the
victim be impleaded as a party to bail petition;
33.3
In light of the decision of the Supreme Court in Jagjeet Singh (Supra), Section
439(1A) Cr.PC must now be expanded to include the victim’s right to be heard
even in petitions where an accused seeks anticipatory bail; a convict seeks suspension
of sentence, parole, furlough, or other such interim relief;
33.4.
To obviate any ambiguity, though Section 439(1A) Cr.PC makes the “presence of
informant” obligatory at the time of hearing, what is clearly mandated thereby
is the right of the victim, whether through the informant or other authorized representative,
to be effectively heard in the matter. If necessary, legal-aid counsel may be
appointed to assist in representing the victim, and the mere ornamental presence
of the victim or their representative without affording them an effective right
of hearing, would not suffice.
The aforesaid discussion leads to
a clear conclusion that as law evolved , the victim has unbridled right in
participating in the criminal proceedings. The right of the victim is also recognized
to the effect that, even a victim may file appeal against the acquittal of the
accused. It is also clearly established now, that whereas the victim shall have
unqualified rights in terms of above, but, still, making them a party in a
criminal case, either instituted by the prosecution or the accused shall not be
necessary, since, once, the victim is made a party, compulsorily, then, appearing
in hearings and being answerable to the petition shall cast onerous task on the
victim and the victim may not be in position to do so and may also opt not to
do so in several cases. Moreover, on aspects whether custodial interrogation of
accused shall be necessary, or not, only prosecution may have to place the place
the facts in this regard.
The right of victim to participate
in criminal proceedings and even in filing appeal against acquittal of accused
is now well recognized with a view to give a fillip to criminal justice system.
The interest of victim in the above concept is thus well recognized, but, at the
same time making the victim a party shall not be necessary for the reasons as
illustrated in a judgment rendered by hon’ble Delhi High Court Saleem
(Supra).
--------
Anil
K Khaware
Founder & Senior
Associate
Societylawandjustice.com
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