Ganesh Das vs Unknown
2021 Latest Caselaw 2520 Cal

IN THE HIGH COURT AT CALCUTTA
            CRIMINAL APPELLATE JURISDICTION
                    APPELLATE SIDE
Present :
THE HON'BLE CHIEF JUSTICE THOTTATHIL B. RADHAKRISHNAN
                    AND
THE HON'BLE JUSTICE Aniruddha roy


                            cra 228 OF 2020
                     In the matter of : GANESH DAS

                                   WITH

                             CRA 26 OF 2021
                       In the matter of : RABIUL SK

For the Appellant in CRA :         Mr. Avik Ghatak
228 of 2020                        Mr.   Saibal   Krishna Dasgupta        ...
                                   Advocates.
For the Appellant in CRA :         Mr. Kushal Kumar Mukherjee,
26 of 2020                         Ms. Rajnandini Das

For the State                  :   Mr. Rana Mukherjee..... Ld. APP

For the     Legal    Services :    Mr. Shiv Shankar Banerjee
Authority                          Ms. Sanchita Barman Roy....Advocates

Ld. Amicus Curiae              :   Mr. Sourav Chatterjee........Advocate

Heard on                       :   09.03.2021

Judgment on                    :   06.04.2021




Thottathil B. Radhakrishnan, C.J. :



                    Is the victim a necessary party to an

                    appeal, under Section 374 of Cr.P.C., from
                                2



           conviction?    Would    such   an   appeal   be

           defective in the absence of impleadment of

           the victim? If the answers to these two

           questions are in the negative, what is the

           procedure to be adopted?

2. CRA No. 228 of 2020 is an appeal against conviction and sentence.

  The appellant was held guilty and convicted for offence punishable

  under Section 376(3) of the Indian Penal Code; hereinafter

  referred to as "I.P.C."; and Section 6 of the Protection of Children

  from Sexual Offences Act, 2012; for short, "POCSO Act". He was

  sentenced to undergo rigorous imprisonment for 20 years and to

  pay fine of Rs. 10,000/- and in default to undergo rigorous

  imprisonment for one year for the offence punishable under

  Section 376(3) of I.P.C. It was directed that the victim is entitled

  to get the said fine amount of Rs. 10,000/- if realized, in view of

  the second proviso to Section 357 of the Code of Criminal

  Procedure; for short, "Cr.P.C.". The department has noted that

  this appeal is defective as the victim has not been made party in

  this application (appeal).
                               3



3. CRA No. 26 of 2021 is also an appeal against conviction and

  sentence. The appellant was held guilty and convicted for offence

  punishable under Section 6 of the POCSO Act and was sentenced

  to undergo imprisonment for 10 years and to pay fine of Rs. 1 lac

  and in default to undergo simple imprisonment for 1 year. The

  Court below had directed that if the fine is realized, the said

  amount be paid to the victim in terms of Section 357 of Cr.P.C. In

  this appeal, the appellant has arrayed, among the respondents, a

person described by name and disclosing that person's identity as

the victim. On 08.03.2021, this Court recorded an order, inter alia,

"One private person is impleaded as respondent no. 2. We are of

the view that the impleadment of such person as respondent needs

to be considered, on the point, whether it is to be permitted".

4. We heard the learned Advocates for the appellants in the two

appeals, Advocate Sourav Chatterjee who assisted this Court as

Amicus Curiae, Advocate Shiv Shankar Banerjee assisting from

the West Bengal State Legal Services Authority and the learned

Additional Public Prosecutor Mr. Rana Mukherjee. We also had the

privilege to hear learned Senior Advocate Shekhar Basu, by way of

advisory and assisting intervention.

5. We keep aside the provision made in the impugned judgment in

CRA 228 of 2020 for payment of compensation under Section

357A of Cr.P.C. since payment of compensation under the Victim

Compensation Scheme cannot be subjected to an appeal by the

accused, be that person a convict or not.

6. Advocate Sourav Chatterjee referred to the provisions of Section

23, 24(5) and 33(7) of the POCSO Act to point out that there is

an overwhelming legislative thrust to ensure protection of the

victims. He also referred to the decision of the Hon'ble Supreme

Court of India in Nipun Saxena & Anr. Vs. Union of India &

Ors. reported as (2019) 2 SCC 703; in particular, paragraph

50.4 and 50.6. thereof; and to the decision of the Apex Court

reported as (2020) 7 SCC 142 (In Re:-Alarming Rise in the

number of Reported Child Rape Incidents). Reference was also

made to the decisions of the Hon'ble Supreme Court in Bhupinder

Sharma Vs. State of Himachal Pradesh reported as 2003 (8)

SCC 551, State of Punjab Vs. Ramdev Singh reported as 2004

(1) SCC 421, Lalit Yadav Vs. State of Chattisgarh reported as

2018 (7) SCC 499, Ravishankar Vs. State of Madhya Pradesh

reported as 2019 (9) SCC 689, Sangitaben Shaileshbhai

Datanta Vs. State of Gujarat reported as 2019 (14) SCC 522

and the decision of this Court in Bijoy Vs. State of West Bengal

reported as 2017 SCC Online Cal 417. We will deal with those

precedents as we proceed.

7. The decision of the Apex Court in Vishaka Vs. State of

Rajasthan reported as 1997 (6) SCC 241 and in National Legal

Services Authority Vs. Union of India reported as 2014 (5) SCC

438 were cited by Advocate Sourav Chatterjee to state that the

contents of international conventions and norms are significant for

the interpretation of constitutional guarantees in absence of

domestic law occupying the field and that Article 51 of the

Constitution has to be read along with Article 253 of the

Constitution and that in the absence of a contrary legislation,

municipal courts in India would respect the Rules of International

Law.

8. Advocate Shiv Shankar Banerjee made reference to the provisions

of the Juvenile Justice (Care and Protection of Children) Act,

2015; for short, "JJ Act, 2015"; in particular Section 3(xi) of that

Act. He further submitted that the Schemes framed by National

Legal Services Authority; for short, "NALSA", and the State

Government, provides for compensation and those Schemes have

delineated the modes of protection for the victims.

9. Learned Senior Advocate Mr. Sekhar Basu drew our attention to

Article 39(f) amongst the Directive Principle of State Policy,

apart from Article 21 of the Constitution of India.

10. Section 372 of Cr.P.C. provides that no appeal shall lie from any

judgment or order of a Criminal Court except as provided for by

the Code or by any other law for the time being in force. The

proviso introduced to that Section with effect from 31.12.2009

conferring right of appeal on the victim as regards such matters

as are stated in that proviso is of no consequence in so far as

these appeals are concerned. Section 374 of Cr.P.C. provides for

the appeals from convictions. Section 385 Cr.P.C. prescribes the

steps to be taken for the purpose of hearing of the appeals which

are not dismissed summarily. The contents of Section 374 and

Section 385 of the Cr.P.C. taken together will show that issuance

of notice of the hearing of the appeal to the victim is not

prescribed, though notice to the complainant is prescribed if the

appeal is from a judgment of conviction in a case instituted upon

complaint. Since the appeals in hand are not from a judgment of

conviction in a case instituted upon complaint, Clause (iii) of

Section 385 (1) does not apply to these appeals. Clause (iv) of

Section 385 (1) does not apply because these appeals are not

under either under Section 377 or Section 378 of the Cr.P.C.

11. Trial, conviction and sentence are matters primarily between the

accused person and the State. The statutory provisions for

institution of the appeal and the hearing thereof do not, in their

terms, enjoin impleadment of the victim in these appeals.

12. The POCSO Act came into force on 14.11.2012. The amendments

made thereto as per the provision of Protection of Children from

Sexual Offences (Amendment) Act, 2009 came into force on

06.08.2019.

13. Section 228A was inserted in the I.P.C. with effect from

25.12.1983. That provision makes disclosure of the identity of the

victim of certain offences punishable. Printing or publishing the

name or any matter which may make known the identity of any

person against whom an offence under Sections 376, 376A, 376AB,

376B, 376C, 376D, 376DA, 376DB, 376E of I.P.C. is alleged or

found to have been committed is punishable. The Apex Court in

Bhupinder Sharma (supra) followed by Ramdev Singh (supra) laid

down that while it is true that such restrictions do not relate to

printing or publication of judgment by the High Court or the

Supreme Court; keeping in view the social object of preventing

social victimization or ostracism of the victim of a sexual offence

for which Section 228A of I.P.C. has been enacted, the name of

the victim should not be indicated in the judgments of the courts

including the superior courts. Relying on Ramdev Singh (supra), the

Apex Court reiterated in Lalit Yadav (supra) that mentioning the

name of the victim in such cases is not consistent with Section

228A of I.P.C.; and, though the Explanation to that Section makes

an exception in favour of the judgments of the superior courts,

efforts should be made by all the courts not to disclose the

identity of the victim. Following Bhupinder Sharma (supra), a

three Judge Bench of the Hon'ble Supreme Court stated in

Ravishankar Vs. State of Madhya Pradesh reported as 2019 (9)

SCC 689 that the mandate against disclosure of the identities of

the victim of sexual offences ought to be observed in spirit even

by the Apex Court.

14. Reiterating the contents of Section 228A of I.P.C. and referring

to the law laid down in Ramdev Singh (supra) the Apex Court, in

Sangitaben Shaileshbhai Datanta (supra), referred also to

Section 33(7) of POCSO Act which casts a duty on the Special

Court to ensure that identity of the victim is not disclosed at any

time during the course of investigation or trial. Section 23 of the

POCSO Act which imposes restrictions on any form of media from

disclosing the identity of the victim which tends to lower her

reputation or infringes upon her privacy, was also taken specific

note of.

15. Through the order in Bijoy (supra), this Court issued directives to

the investigating agencies, prosecutors and Special Courts in

relation to the protection of the child victims' fundamental right to

dignity. Guiding support was drawn from the decision of the Apex

Court in Sakshi Vs. Union of India, (2004) 5 SCC 518. The

directives issued by this Court in Bijoy includes the specific

command that the investigating agencies shall not disclose the

identity of the victim in any media and shall ensure that such

identity is not disclosed in any manner whatsoever except with the

express permission of the Special Court, in the interest of justice.

It was further directed that the identity of the victim,

particularly his/her name, parentage, address or any other

particulars that may reveal such identity, shall not be disclosed in

the judgment delivered by the Special Court unless such disclosure

of identity is in the interest of the child. That order of this Court

stands approved by the Apex Court through the judgment in Nipun

Saxena (supra) to which the directions issued by this Court in

Bijoy (supra) stand annexed. The directions issued by the Apex

Court in Nipun Saxena (supra) include the following:-

"50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.

50.2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorisation of the next of kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.

50.3. FIRs relating to offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E I.P.C. and the offences under POCSO shall not be put in the public domain.

50.4. In case a victim files and appeal under Section 372 Cr.P.C., it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.

50.5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.

50.6. All the authorities to which the name of the victim is disclosed by the investigating agency or the Court are also duty-bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the Court.

50.7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228A (2) (c) I.P.C. should be made only to the Sessions Judge concerned until the Government acts under Section 228A (1) (c) and lays down criteria as per our directions for identifying such social welfare institutions or organizations.

50.8. In case of minor victims under POCSO Act, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child."

16. Sikkim High Court in Subhas Chandra Rai Vs. State of Sikkim,

2018 Cri LJ 3146 = (SCC OnLine Sikk 29), quoted with approval

by the Hon'ble Supreme Court in Nipun Saxena (supra), stated

that in view of the mandate of Section 74 of the JJ Act, the

Police and Media as well as the Judiciary are required to be equally

sensitive in such matters and to ensure that such mandate of law is

compiled with. We are in agreement with that view. Be it a child in

conflict with law, or one in need of care and protection, or a child

victim, or witness of a crime involved in matter; the name, identity

of the parents, siblings and near relatives, other family details,

address, school, or other particulars which could lead to such child

being tracked, found and identified shall not be disclosed, unless

for the reasons given in the proviso to Section 74 of the JJ Act.

17. The directions in paragraph 50.4 in Nipun Saxena (supra) enjoins

that in case a victim files an appeal under Section 372 of Cr.P.C., it

is not necessary for the victim to disclose his/her identity and the

appeal shall be dealt with in the manner laid down by law. The need

is to follow protective governance as far as the privacy of the

victims are concerned. That has to be ensured in letter and spirit

by cohesive and comprehensive effectuation of the seminal twin

doctrines of privacy and dignity which are inexcusable components

of the fundamental right to life guaranteed under Article 21 of

Constitution of India.

18. Running with the aforesaid is Article 39 (f) of the Constitution

which enjoins that the State shall direct its policies towards

securing that children are given opportunities and facilities to

develop in a healthy manner and in conditions of freedom and

dignity and that childhood and youth are protected against

exploitation and against moral and material abandonment. The

principles enumerated in the different clauses of Article 39 are

among the Directive Principle of State Policy; for short "DPSP", in

Part IV of the Constitution. Article 38(1) in Part IV enjoins that

the State shall strive to promote the welfare of the people by

securing and protecting as effectively as it may a social order in

which justice, social, economic and political, shall inform all the

institutions of the national life. Investigation, prosecution and

adjudication are carried out through institutions which are

essentially institutions of national life. Judiciary is an institution of

national life. Therefore, the protective canopy over the children

against exploitation and the constitutional vision, value and

command to ensure their freedom and dignity, including privacy,

are among the principles which ought to guide the judicial

institutions as well.

19. On 11.12.1992, India ratified the United Nations Convention on the

Rights of the Children; 'UNCRC' for short. That Convention

requires all State Parties to undertake all appropriate measures to

secure the best interest of the child, even when it is alleged as, or

accused of, violating any penal law. Such measures require the

treatment of the child in a manner consistent with the promotion

of the child's sense of dignity and worth, reinforcing the child's

respect for the human rights and fundamental freedoms of others

and taking into account the child's age and desirability of promoting

the child's reintegration and the child's assuming a constructive

role in society. The thrust in those principles were to ensure

proper care, protection, development, treatment and social re-

integration of every child in difficult circumstances, by adopting a

child-friendly approach keeping in mind the best interest of the

child. In terms of Article 253 of the Constitution, the Parliament

has the overriding exclusive legislative competence and power to

make laws for implementing any treaty, agreement or convention

with any other country or countries or any decision made at any

international conference, association or other body. All these

provisions taken together, obliges the State to put in place

requisite provisions to reach at the goals sought to be achieved

through a meaningful collective operation of the provisions of the

UNCRC and the Constitution of India.

20. In the aforesaid conspectus, the 2015 JJ Act emerged out of the

need to re-enact the Juvenile Justice (Care and Protection of

Children) Act, 2000 to make comprehensive provisions for children

alleged and found to be in conflict with law and children in need of

care and protection, taking into consideration the standards

prescribed in the UNCRC, the United Nations Standard Minimum

Rules for the Administration of Juvenile Justice, 1985 (the Beijing

Rules), the United Nations Rules for the Protection of Juveniles

Deprived of their Liberty (1990), the Hague Convention on

Protection of Children and Co-operation in Respect of Inter-

country Adoption (1993) and other related international

instruments. It was therefore that the 2015 JJ Act was brought

into being as an Act to consolidate and amend the laws relating to

children alleged or found to be in conflict with law and children in

need of care and protection, by catering to their basic needs

through proper care, protection, development, treatment, social

reintegration, by adopting a child-friendly approach in the

adjudication and disposal of matters in the best interest of

children and for their rehabilitation through processes provided,

and institutions and bodies to be established under the 2015 JJ

Act.

21. Article 39A of the Constitution enjoins provision of free legal aid

by suitable legislation or schemes, or in any other way, to ensure

that opportunities for securing justice are not denied to any

citizen by reason of economic or other disabilities. The National

Legal Services Authority, the State Legal Services Authorities,

the District Legal Services Authorities, the Taluk Legal Services

Committees and the High Court Legal Services Committee; for

short, "NALSA", " SLSA", "DLSA", "TLSC" and "HCLSC",

respectively, are constituted under the provisions of the Legal

Services Authority Act, 1987; for short "LSA Act". Section 13 of

the LSA Act, 1987 provides that a person who satisfy all or any of

the criteria specified in Section 12 shall be entitled to receive

legal services provided that the concerned authority is satisfied

that such person has a prima facie case to prosecute or defend.

Section 12 of the LSA Act enumerates the classes of persons who

will be entitled to Legal Services while filing or defending a case.

It includes "a woman or a child" at clause (c) of Section 12. While

the LSA Act does not defines "child", the POCSO Act defines

'child' to mean any person below the age of eighteen years and

the 2015 JJ Act defines 'child' to mean a person who has not

completed eighteen years of age- See Section 2(d) of the POCSO

Act, and Section 2(12) of the 2015 JJ Act.

22. Learned Amicus Curiae Sourav Chatterjee pointed out that in

exercise of the power conferred by Section 45 of the POCSO Act

and upon repealing the Protection of Children from Sexual

Offences Rules, 2012, the Protection of Children from Sexual

Offences Rules, 2020 were made. Those rules came into force on

their publication in the Gazette of India on 9th March, 2020. Rule 7

among those rules provided that the Child Welfare Committee; for

short, "CWC", shall make a recommendation to the DLSA for legal

aid and assistance. Legal aid and assistance shall be provided to

the child in accordance with the provisions of the LSA Act, 1987.

The Special Juvenile Police Unit; for short, "SJPU", or the local

police shall inform the child and child's parents or guardian or

other person in whom the child has trust and confidence about

their entitlements and services available to them under the Act or

any other law for the time being applicable as per Form-A., which

is made part of those rules. What are enumerated as entitlement

of children who have suffered sexual abuse are, inter alia, for

being kept away from accused at all times, during trial and

otherwise; for Free Legal Aid; and, to privacy and confidentiality.

23. A victim filing an appeal in terms of the proviso to Section 372 of

Cr.P.C. can seek legal services in terms of Section 13 of the LSA

Act if that victim is a woman or a child or for any other reason

entitled to legal services having regard to the contents of Section

12 of the LSA Act. It is among the directions in Nipun Saxena

(supra), that in case a victim of offences of the types in these

cases, files an appeal under Section 372 of Cr.P.C., and the proviso

thereto it is not necessary for the victim to disclose his/her

identity and the appeal shall dealt with in the manner laid down by

law.

24. The legal rights, eligibility and interest of a victim, in the course of

an appeal against conviction, would stand satisfied if the State

carries out diligently and vigilantly its role in criminal cases and the

Public Prosecutors discharging their duties and responsibilities due

from them in terms of the provisions of Cr.P.C and other governing

laws. The eligibility of a victim even in cases where a component of

compensation is ordered by the convicting Court under Section 357

of Cr.P.C., ought to be protected by the State and Public

Prosecutor.

25. In so far as victims of sexual offences falling either under Indian

Penal Code or POCSO Act are concerned, they would be entitled to

have their cause defended in appeals arising from judgements of

the Criminal Courts resulting in the conviction and resultant

sentencing of the wrong doer/ accused person. While it is

definitely the duty of the State and the Public Prosecutor to

comprehensively deal with all aspects of a criminal appeal against

conviction; in particular cases, on the basis of situation and need,

the Legal Services Authority concerned can also represent and

protect the interest of the victim even without the impleadment of

the victim in the array of parties, thereby synchronizing the

opportunity to contest and the need to preserve the privacy. The

right to be extended such legal services as may be required for

such purpose ought to necessarily flow through the Legal Services

Authorities constituted under the LSA Act.

26. For the aforesaid reasons, we hold that:

i) The victim is not a necessary party to a Criminal Appeal

from conviction for offences against woman or child,

punishable under provisions of the I.P.C. or POCSO Act or

any other penal provision which will apply in relation to

offences affecting human body against any "woman" and/or

"child", both those expressions being understood in the

context of the respective legislation which deals with such

offences.

ii) No such appeal would be defective in the absence of

impleadment of the victim.

iii) The procedure to be adopted in all such appeals would be

to deal with those appeals without insisting on the

impleadment of the victim. In cases where, over and above

the assistance of the Public Prosecutor representing the

State, the appellate court deems it necessary to provide

further assistance to secure the interest of the victim

through legal aid, the HCLSC or the DLSA concerned may

be required to provide assistance through an empanelled or

other advocate as may be decided by the HCLSC or the

DLSA concerned. However, even in such cases, it shall be

insisted by the Court that the principles relating to

protection of dignity and privacy and modality of ensuring

those values, as delineated above, are scrupulously adhered

to.

iv) As a necessary corollary, we deem it situationally

appropriate to state that the appeals by victims would be

governed by the directions in Nipun Saxena (supra);

however, that there need not be any doubt as to how the

victim would be described. It would suffice that the cause-

title of such an appeal would show that the appellant is the

victim in the criminal case identified by its number, the

court below and/or the police station. This will insulate the

victim from being subjected to disclosure of identity of

that person.

27. Before parting, we place on record our appreciation for the in

depth preparation and able assistance rendered by Mr. Sourav

Chatterjee who on the request of this Court assisted as amicus

curiae. We also record our appreciation for the manner in which

broad spectrum of law was dilated upon and presented before us by

Mr. Shiv Shankar Banerjee assisting from the West Bengal State

Legal Services Authority. We appreciate the guidance extended by

Senior Advocate Shekhar Basu with his advisory intervention.

28. Resultantly, it is held and ordered that:

a. CRA No. 228 of 2020 is not defective.

b. The name and description of the person arrayed as a

respondent, other than the State, in CRA No. 26 of 2021

shall be struck off the record.

(Aniruddha Roy, J.) (Thottathil B. Radhakrishnan, C.J.)