The Supreme Court has held that victim has a right to participate at every stage of criminal proceedings after the occurrence of the offence, including at the time of adjudication of bail application of the accused.
The full-judge bench comprising of Chief Justice NV Ramana, Justice Surya Kant and Justice Hima Kohli cancelled the bail of accused in Lakhimpur Kheri Case, Ashish Mishra (son of MP Ajay Mishra Teni)
The Court while taking up the petition, rounded up three key issues to be settled:
A. Whether a ‘victim’ as defined under Section 2(wa) of the Code of Criminal Procedure, 1973 is entitled to be heard at the stage of adjudication of bail application of an accused?
B. Whether the High Court overlooked the relevant considerations while passing the impugned order granting bail to the Respondent-Accused?; and
C. If so, whether the High Court’s order dated 10.02.2022 is palpably illegal and warrants interference by this Court?
Victim’s right to be heard
While answering the first question, the Court went on to analyse Victim and their rights
The Court at the outset noted that with the recognition that the ethos of criminal justice dispensation to prevent and punish ‘crime’ had surreptitiously turned its back on the ‘victim’, the jurisprudence with respect to the rights of victims to be heard and to participate in criminal proceedings began to positively evolve.
UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985
Calling it a landmark in boosting the provictim movement, the Court noted that the Declaration defined a ‘victim’ as someone who has suffered harm, physical or mental injury, emotional suffering, economic loss, impairment of fundamental rights through acts or omissions that are in violation of criminal laws operative within a State, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted, and regardless of the familial relationship between the perpetrator and the ‘victim’.
154th Report of the Law Commission of India
The Court mentioned that the recent amendments to the Cr.P.C. have recognised a victim’s rights in the Indian criminal justice system. The Committee recommended the rights of the victim or his/her legal representative “to be impleaded as a party in every criminal proceeding where the charges punishable with seven years’ imprisonment or more”.
"It was further recommended that the victim be armed with a right to be represented by an advocate of his/her choice, and if he/she is not in a position to afford the same, to provide an advocate at the State’s expense. The victim’s right to participate in criminal trial and his/her right to know the status of investigation, and take necessary steps, or to be heard at every crucial stage of the criminal proceedings, including at the time of grant or cancellation of bail, were also duly recognised by the Committee. Repeated judicial intervention, coupled with the recommendations made from time to time as briefly noticed above, prompted the Parliament to bring into force the Code of Criminal Procedure (Amendment) Act, 2008, which not only inserted the definition of a ‘victim’ under Section 2 (wa) but also statutorily recognised various rights of such victims at different stages of trial."
The Court stressed on the comprehensive definition given to the word 'victim' by the legislature; ‘victim’ which “means 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 the expression “victim” includes his or her guardian or legal heir”
It mentioned Mallikarjun Kodagali vs. State of Karnataka & Ors., 2018 Latest Caselaw 758 SC wherein the Supreme Court observed that there was a need to give adequate representation to victims in criminal proceedings. The Court therein affirmed the victim’s right to file an appeal against an order of acquittal.
Noting that the right of a victim under the amended Cr.P.C. are substantive, enforceable, and are another facet of human rights, the Court clarified that victim’s right cannot be termed or construed restrictively like a brutum fulmen. It reiterated that these rights are totally independent, incomparable, and are not accessory or auxiliary to those of the State under the Cr.P.C.
In this view, the Court observed that presence of ‘State’ in the proceedings, therefore, does not tantamount to according a hearing to a ‘victim’ of the crime.
"A ‘victim’ within the meaning of Cr.P.C. cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to be heard at every step post the occurrence of an offence. Such a ‘victim’ has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that ‘victim’ and ‘complainant/informant’ are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a ‘victim’, for even a stranger to the act of crime can be an ‘informant’, and similarly, a ‘victim’ need not be the complainant or informant of a felony."
The Court explained that two notes can be taken out of the above enunciation:
First, the Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged; Second, where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing.
"If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a bail application, the same may result in grave miscarriage of justice. Victims certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances. It is the solemn duty of a court to deliver justice before the memory of an injustice eclipses."
Case Title: Jagjeet Singh & Ors VERSUS Ashish Mishra @ Monu & Anr.
Case Detail: CRIMINAL APPEAL NO.632 of 2022
Coram: Chief Justice NV Ramana, Justice Surya Kant and Justice Hima Kohli
Read Judgement Here:
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