Bombay High Court
Kishor Vishwasrao Patil vs The State Of Maharashtra And Anr on 14 October, 2022
Bench: Amit Borkar
TAUSEEF
LAIQUEE
FAROOQUI Tauseef Farooqui 905-WP.3751.2022.doc
Digitally signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TAUSEEF LAIQUEE
FAROOQUI
CRIMINAL APPELLATE JURISDICTION
Date: 2022.10.17
18:29:03 +0530
CRIMINAL WRIT PETITION NO.3751 OF 2022
Kishor Vishwasrao Patil ...Petitioner
V/s.
State of Maharashtra & Anr. ...Respondents
*****
Mr. Vaibhav Kulkarni a/w Mr. Ruturaj Bathe, Ms. Pooja Agarwal for
Petitioner.
Ms. G. P. Mulekar, APP for the Respondent (State).
*****
CORAM : AMIT BORKAR, J.
DATE : OCTOBER 14, 2022
P.C.:
1. By this Writ Petition, the petitioner is challenging the
rejection of the Application seeking the opportunity to make oral
submissions while considering the Application for Bail of
respondent no.2.
2. Learned Additional Judge, Pune, by order dated 10 th
October 2022, rejected the Petition, holding that the informant can
file written notes of argument instead of oral submission and assist
the prosecution.
3. Learned advocate appearing for the petitioner relied on
the judgment in the case of Jagjeet Singh V/s. Ashish Mishra
reported in 2022 SCC Online SC 453. The Apex Court, in
paragraph 23 to 27 read as under:-
Tauseef Farooqui 905-WP.3751.2022.doc
"23. It cannot be gainsaid that the right of a victim under the
amended CRPC are substantive, enforceable, and are another facet
of human rights. The victim's right, therefore, cannot be termed or
construed restrictively like a brutum fulmen. We reiterate that
these rights are totally independent, incomparable, and are not
accessory or auxiliary to those of the State under the CRPC. The
presence of 'State' in the proceedings, therefore, does not
tantamount to according a hearing to a 'victim' of the crime.
24. A 'victim' within the meaning of CRPC 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.
25. The above stated enunciations are not to be conflated with
certain statutory provisions, such as those present in Special Acts
like the Scheduled Cast and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, where there is a legal obligation to hear the
victim at the time of granting bail. Instead, what must be taken
note of is that; 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
Tauseef Farooqui 905-WP.3751.2022.doc
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.
26. Adverting to the case at hand, we are constrained to express
our disappointment with the manner in which the High Court has
failed to acknowledge the right of the victims. It is worth
mentioning that, the complainant in FIR No. 219 of 2021, as well
as the present Appellants, are close relatives of the farmers who
have lost their lives in the incident dated 03.10.2021. The specific
stance taken by learned Senior Counsel for the Appellants that the
Counsel for the 'victims' had got disconnected from the online
proceedings and could not make effective submissions before the
High Court has not been controverted by the Respondents.
Thereafter, an application seeking a rehearing on the ground that
the 'victims' could not participate in the proceedings was also
moved but it appears that the same was not considered by the
High Court while granting bail to the Respondent-Accused.
27. We, therefore, answer question (A) in the affirmative, and hold
that in the present case, the 'victims' have been denied a fair and
effective hearing at the time of granting bail to the Respondent-
Accused."
4. On careful perusal of the observations made by the
Apex Court, it appears that the Apex Court has held that the victim
has an independent right to be heard in the matter, and they must
be given a fair and effective hearing at the time of granting bail to
Tauseef Farooqui 905-WP.3751.2022.doc
the accused. Additionally, in the facts of the case, it is at the
instance of the present applicant, who is the informant and victim,
the Apex Court in Criminal appeal No.905 of 2022 cancelled
Anticipatory Bail granted to respondent no.1.
5. In that view of the matter, the petitioner has made out
the case for grant of ad-interim relief; by way of ad-interim relief,
it is directed that the learned Additional Sessions Judge, Pune,
shall give the opportunity of the oral hearing to the petitioner at
the time of consideration of Bail Application.
6. Issue notice to respondent no.2, returnable on 29 th
November 2022.
(AMIT BORKAR, J.)
