Gauhati High Court
Smt Bormoty Panggeng vs The State Of Arunachal Pradesh And ... on 27 January, 2021
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GAHC010138392018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./205/2018
SMT BORMOTY PANGGENG
W/O SHRI OLAK PANGGENG, R/O VILL. OYAN, P.S. SILLE OYAN, DIST.
EAST SIANG, ARUNACHAL PRADESH, PIN 791102
VERSUS
THE STATE OF ARUNACHAL PRADESH AND ANR
REPRESENTED BY PUBLIC PROSECUTOR, ARUNACHAL PRADESH.
2:ANDY BORI
S/O LATE JADURAM BORI
R/O VILL. OYAN
P.O. SILLE
P.S. RUSKIN
DIST. EAST SIANG
ARUNACHAL PRADESH
PIN 79110
Advocate for the Appellant : MR. P D NAIR
Advocate for the Respondent : PP, A P
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BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
JUDGMENT & ORDER (CAV)
Date : 27-01-2021
(Mir Alfaz Ali, J)
We have heard Mr. S.K. Deori, learned counsel for the appellant and Mr. NNB
Choudhury, learned P.P. and Addl. A.G. for the State of Arunachal Pradesh.
2. The question sought to be answered by this order is whether the informant must be
served with a notice before proceeding with the hearing of an appeal preferred by the
accused against the judgment of conviction.
3. The facts giving rise to the above mentioned question are that the appellant preferred
an appeal against the judgment of conviction and sentence rendered by the learned Sessions
Judge. The informant of the case was impleaded as party respondent and notice was issued
to him. However, despite all effort, the notice could not be served on the
informant/respondent. Because after lodging the FIR, he had left the place of his residence in
the State of Arunachal Pradesh, for Dadra and Nagar Haveli and did not return, and as such,
whereabout of the informant could not be traced out.
4. Learned counsel for the appellant would submit, that there was no statutory
requirement for impleadment and issuance of notice to the informant. However, the informant
was impleaded as a party respondent and notice was issued to him in view of the direction of
this Court in Crl. Appeal No. 22/2012, and the consequent amendment made in the Gauhati
High Court Rules, requiring impleadment of the informant as party respondent. A learned
Single Judge of this Court held in Crl. Appeal No. 22/2012 that "in view of insertion of the
proviso to Section 372 of the CrPC, it would be just and proper to amend the Chapter XI of
the Gauhati High Court Rules to make obligatory for the appellant/petitioners to implead the
informants/complainants/victim and accused persons as the case may be, while filing appeals
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under Sections 374/378 of the CrPC or revision petition under Section 397/401 or criminal
petition under Section 482 of the CrPC". Learned Single Judge also referred to the decision of
the Apex Court in Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters Pvt. Ltd. and
Anr., reported in (2009) 2 SCC 363.
5. Learned Public Prosecutor submits referring to Section 225 of the CrPC, that
prosecution in Sessions Case shall be conducted only by the Public Prosecutor and
involvement of the informant or any other private person in a sessions trial is very minimal. It
is also submitted referring to Section 301 of the CrPC that even if a private party instructs a
lawyer to prosecute any person in any court, such lawyer engaged or instructed by a private
person may act, only under the direction and supervision of the Public Prosecutor or Asstt.
Public Prosecutor in charge of the case and may with the permission of the court, submit
written argument after the evidence is closed. Learned P.P. also referred to the proviso to
Section 24(8) of the CrPC, to submit, that even a victim is required to take permission of the
court to engage an advocate of his choice to assist the Public Prosecutor. Therefore, the
participatory rule of the informant or any private person including the victim in a sessions
case is circumscribed, and as such, the informant or any other private person does not have
an absolute or independent right to be impleaded as a party or served with a notice in
respect of an appeal filed by the accused against a judgment of conviction rendered by the
court of sessions, submits Mr. Choudhury. The learned Public Prosecutor further contended,
that if the informant or any other private person, including the victim, engages a counsel to
assist the public prosecutor during the trial, and submits written argument as per section
301(2) CrPC with the permission of the court, then only, the informant or any other private
person participating in the trial with the permission of the court, may be heard in an appeal
against the conviction filed by the accused. It is also submitted that Rule 1 (A) of the Criminal
Rules and Order(Chapter-II) does not provide for issuance of notice to the informant in an
appeal against conviction filed before the High Court u/s 374 (2) of the CrPC. Thus, the
contention of the learned counsel (s) for both the sides is that in an appeal against
conviction, the accused is statutorily under no obligation to implead the informant as a party
respondent or to serve him/her with notice, and therefore, it should not be mandatory for the
accused to implead the informant or to serve him with notice in an appeal against conviction.
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Rather, discretion should be left to the court to hear the informant or the victim or the person
affected, if any, by the crime, as an when he/she comes forward and wants to be heard.
6. We have considered the submission made by both the learned counsel(s) to assist the
court for resolution of the issue before the court.
7. Before adverting to the submission made by the learned counsel, it would be
appropriate to reproduce certain relevant provisions of the Code of Criminal Procedure for
better appreciation of the issue -
Section 4 :- Trial of offences under the Indian Penal Code and
other laws.
(1) All offences under the Indian Penal Code (45 of 1860 ) shall be investigated, inquired into,
tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise
dealt with according to the same provisions, but subject to any enactment for the time being in
force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing
with such offences.
Section 24(8) :- The Central Government or the State Government may
appoint, for the purposes of any case or class of cases, a person who has been
in practice as an advocate for not less than ten years as a Special Public
Prosecutor.
Provided that the court may permit the victim to engage an advocate of his
choice to assist the public prosecutor under this Sub-section.
Section 225 :-Trial to be conducted by Public Prosecutor. In every trial
before a Court of Session, the prosecution shall be conducted by a Public
Prosecutor.
Section 301 :- Appearance by Public Prosecutors.
(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and
plead without any written authority before any Court in which that case is under inquiry, trial or
appeal.
(2) If in any such case, any private person instructs a pleader to prosecute any person in any
Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct
the prosecution, and the pleader so instructed shall act therein under the directions of the Public
Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit
written arguments after the evidence is closed in the case.
Section 302 :- Permission to conduct prosecution.
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(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted
by any person other than a police officer below the rank of Inspector; but no person, other than
the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public
Prosecutor, shall be entitled to do so without such permission: Provided that no police officer
shall be permitted to conduct the prosecution if he has taken part in the investigation into the
offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.
Section 372 :- "No appeal to lie, unless otherwise provided:- No appeal
shall lie from any judgment or order of a Criminal Court except as provided for
by this Code or any other law for the time being in force.
Provided that the victim shall have right to prefer an appeal against any order
passed by the court acquitting the accused or convicting for lesser offence or
imposing inadequate compensation, and such appeal shall lie to the court to
which an appeal ordinarily lies against the order of conviction of such court."
Section 2 (WA) CrPC defines the 'victim' as under ---
2 (WA)" "victim" means a person, who has suffered any loss or any injury
caused by reason of the act or omission for which the accused person has been
charged and the expression "victim" includes is or her guardian or legal heir."
8. Section 225 Cr.P.C. provides that every trial before the court of sessions shall be
conducted only by a public prosecutor. At the same time the provisions of Section 301 (2),
302 (1) and also the proviso to Section 24 (8) of the CrPC makes it appear, that a victim or a
private person has a locus to appear and participate in a proceeding initiated by the State or
at the instance of the accused. However, the expression "the pleader so instructed shall act
therein under the direction of the public prosecutor"............ "may, with the permission of the
court, submit written argument", appearing in Section 301 (2) CrPC, the expression "may
permit the prosecution to be conducted by any person...." in section 302(1) and the
expression "court may permit the victim to engage an advocate of his choice to assist the
public prosecutor" in the proviso to Section 24(8) CrPC makes it abundantly clear that the
right of the victim or any other private party to participate in the prosecution of a criminal
case or a proceeding where State is the prosecution or a proceeding initiated at the instance
of the accused is subject to permission of the court and the discretion is vested with the court
to regulate the participatory role of the private person, and as such, the right of the victim or
any other private person, to be heard in a criminal proceeding initiated by the State or the
accused is not absolute or unfettered.
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9. It may also be noticed that there is a distinction between Section 302(1) CrPC, which
deals with the enquiry or trial before the Magistrate and Section 301 (2) of the CrPC, which
refers to "any court" including High Court. When in an enquiry or trial before a Magistrate,
permission is granted to any private person to conduct the prosecution, such person may
conduct the prosecution personally or by engaging a counsel. In an enquiry or trial before a
Magistrate, once the permission is granted u/s 302 (1) CrPC, the private person, or the lawyer
engaged by him can conduct the prosecution independently. However, unlike the provision of
Section 302(1), the lawyers engaged by any private person or the 'victim', as contemplated in
Section 301(2) or the proviso to Section 24 (8) CrPC respectively shall act only under the
direction and control of the public prosecutor or Asstt. Public Prosecutor in charge of the
case. Thus, the role of such advocate engaged by the 'victim' or any other private person
shall be limited only to assist the Public Prosecutor or the Asstt. Public Prosecutor in charge of
the case, or to submit written argument after the evidence is closed, with the permission of
the court. Such lawyer engaged by private person cannot conduct prosecution independently.
Section 225 CrPC mandates that every trial before the court of sessions shall be conducted
only by a public prosecutor. Therefore, necessarily in an appeal filed by the accused against
conviction u/s 374 (2) CrPC before the High Court, the role of an advocate engaged by the
victim or any other private person shall be governed by Section 301(2) CrPC and proviso to
section 24(8) of the CrPC, meaning thereby that the role of the advocate appearing at the
instruction of the "victim" or any other private party in the appeal filed by the accused against
conviction shall be minimal and subject to discretion of the court. The proviso to Section 372
CrPC inserted by the Amendment Act of 2009, however, confers an independent and distinct
right upon the victim to prefer an appeal against acquittal or against an order of conviction
for lesser offence or inadequate compensation and the term "victim" has been defined by
clause (wa) of section 2 of the CrPC
10. In Shiv Kumar- Vs. Hukum Chand and Anr. reported in (1997) 7 SCC 467, the Apex
Court had the occasion to interprete the purport of Sections 301 and 302 of the CrPC and the
role and limits of participation of a lawyer engaged by a private person in the backdrop of the
provisions of section 24 and 225 of the CrPC. The facts before the Supreme Court was that
during trial before the court of sessions, informant/victim engaged a private counsel, who
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wanted to conduct the prosecution. The accused raised objection on the premise that private
counsel cannot conduct prosecution in a sessions trial. Upon an application moved by the
appellant Shiv Kumar, the trial court passed an order, directing that private advocate shall
conduct under the supervision, guidance and control of the public prosecutor, who shall retain
with himself the control over the proceedings. Against the order of the trial court, Shiv Kumar
approached the High Court. High Court did not interfere and therefore, Shiv
Kumar(informant/victim) approached the Supreme Court. The Apex Court held in para 12,13,
14 & 19 as under :
"12. In the backdrop of the above provisions we have to understand the purport of Section
301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined
to magistrate courts, this particular section is applicable to all the courts of criminal jurisdiction.
This distinction can be discerned from employment of the words any court in Section 301. In
view of the provision made in the succeeding section as for magistrate courts the insistence
contained in Section 301(2) must be understood as applicable to all other courts without any
exception. The first sub-section empowers the Public Prosecutor to plead in the court without
any written authority, provided he is in charge of the case. The second sub-section, which is
sought to be invoked by the appellant, imposes the curb on a counsel engaged by any private
party. It limits his role to act in the court during such prosecution under the directions of the
Public Prosecutor. The only other liberty which he can possibly exercise is to submit written
arguments after the closure of evidence in the trial, but that too can be done only if the court
permits him to do so.
13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in
a sessions court cannot be conducted by any one other than the Public Prosecutor. The
legislature reminds the State that the policy must strictly conform to fairness in the trial of an
accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the
case in the conviction of the accused somehow or the other irrespective of the true facts
involved in the case. The expected attitude of the Public Prosecutor while conducting
prosecution must be couched in fairness not only to the court and to the investigating agencies
but to the accused as well. If an accused is entitled to any legitimate benefit during trial the
Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public
Prosecutor to winch it to the fore and make it available to the accused. Even if the defence
counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of
the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct
prosecution would focus on bringing the case to conviction even if it is not a fit case to be so
convicted. That is the reason why Parliament applied a bridle on him and subjected his role
strictly to the instructions given by the Public Prosecutor.
14. It is not merely an overall supervision which the Public Prosecutor is expected to
perform in such cases when a privately engaged counsel is permitted to act on his behalf. The
role which a private counsel in such a situation can play is, perhaps, comparable with that of a
junior advocate conducting the case of his senior in a court. The private counsel is to act on
behalf of the Public Prosecutor albeit the fact he is engaged in the case by a private party. If the
role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would
become a combat between the private party and the accused which would render the legislative
mandate in Section 225 of the Code a dead letter.
19. We therefore, conclude, that the High Court in the impugned order correctly
approached the issue and it does not warrant any interference........"
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11. In J.K. International Vs. State (Govt. of NCT of Delhi) and Ors. (2001) 3 SCC 462, the
Apex Court observed that, when a case is charge-sheeted by police, the accused has no
obligation to made the informant a party in a petition for quashing the criminal proceeding,
inasmuch as, it is the predominantly concern of the State to continue the proceeding. But
when a criminal proceeding is sought to be quashed, it would be negation of justice to him, if
he is foreclosed from being heard even after he makes a request to the court in that behalf .
The factual matrix of the case was that the police took cognizance of offence u/s
420/406/120-B IPC against the appellant and issued process on the basis of the charge-sheet
submitted by police. The accused/appellant approached the High Court for quashing the
proceeding, wherein the informant was not made a party. Therefore, the informant filed an
application for impleadment which was rejected by the High Court. Having elaborately
discussed the purport of Section 301(2) and 302 (1) as well as Section 225 of the CrPC the
Apex Court observed that, when a limited role of a private person is permitted even in
sessions case, the private person, who is "aggrieved" is not wiped off from the proceeding in
the criminal court, merely because, the case was charge-sheeted by police.
12. It may be pointed out that the offence involved in the case dealt by the Apex Court in
J.K. International's case was triable by Magistrate and as per Section 302(1) CrPC, the
Magistrate could permit any person, other than a police officer below the rank of Inspector to
conduct a prosecution before it. But in a sessions case, prosecution has to be conducted only
by the Public Prosecutor, and the role of private person or the advocate engaged by private
person is limited to the extent of assisting the Public Prosecutor or Assistant Public
Prosecutor, as the case may be. However, in an enquiry or trial before Magistrate, if any
private person is permitted to conduct the prosecution, the role of such person or the counsel
engaged by him is not limited unlike under the provision of section 301(2) CrPC.
13. In the case of Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters Pvt. Ltd. and
Anr. (supra), the Apex Court, referring to Section 401 (2) CrPC observed that in a revision,
any person including accused, who is prejudiced by the order is required to be heard. The
facts of the case was that the complainant filed an application u/s 156 (3) CrPC along with
the complaint praying for sending the complaint to the police for investigation. However, the
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learned Magistrate refused to exercise its jurisdiction u/s 156 (3) of the CrPC. The
complainant filed a revision against the order of the Magistrate without impleading the
accused. The High Court allowed the petition and remanded the case to Magistrate. The
accused approached the Supreme Court against the said order. An argument was advanced
before the Supreme Court that in pre-cognizance stage the accused has no 'locus' to be
heard. However, the Apex Court took the view that, when the Magistrate after taking
cognizance directed the complainant to adduce his witness for conducting an enquiry u/s 202
CrPC, it was post cognizance stage, and in that context the Apex Court observed that when
the accused was prejudiced by the order, he was required to be heard.
14. In Bhagawant Vs. Commissioner of Police and Anr., reported in (1985) 2 SCC 537, the
Apex Court held that a person lodging the FIR is entitled to notice and opportunity of 'being
heard', when on the basis of police report Magistrate prefers to drop the proceeding instead
of taking cognizance, inasmuch as, the informant shall be prejudiced because the First
Information Report lodged by the informant would have failed its purpose. The Apex Court
further considered the locus of the injured or any relative of the deceased to appear and to
be heard, while the Magistrate considers the final report submitted by police u/s 173 (2) (1)
CrPC and observed that though, the injured or the relative of the deceased may not be
entitled to notice, the Magistrate is obliged to hear such injured or relative of the victim, if he
wants to be heard.
15. It may not be out of place to recollect herein the fundamental nature of a criminal
proceeding, which deals with the crime. Crime is deemed by law to be detrimental to the
society in general, though, immediate sufferer of a crime may be an individual. Therefore,
criminal jurisprudence provides for punishment to the offender and the State is empowered
by law to punish the offenders. Because of the above fundamental nature of a criminal
proceeding, the criminal law envisages the State as prosecutor in a criminal trial. Be that as it
may, though, crime is deemed by law to be detrimental to the society in general and State is
considered as the prosecutor in a criminal trial, increasing recognition of the concept of
victimology or the right and participatory role of the victim, who is the ultimate sufferer or
directly affected by a crime can be seen both in the legislative changes brought about in the
Code of Criminal Procedure as well as judicial pronouncement, as indicated above.
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Nonetheless, what is important to note and is discernible from the aforesaid provisions of the
Code of Criminal Procedure and the judicial pronouncement is that the role of a private
person, whether a victim/informant or the counsel engaged by private person/victim in a
criminal proceeding initiated at the instance of the accused or the State is made subject to
control and regulation by court, under the scheme of the CrPC. Therefore, locus of the victim
or any other private person including informant, to appear or to be heard in a criminal
proceeding initiated at the instance of the accused or the State is not absolute, rather, subject
to judicial discretion of the court. The discretion of the court in respect of right of the victim,
or the circumscription of the victim's right to be heard in a criminal proceeding, where State is
the prosecutor is made further transparent by the proviso to Section 24(8) of the CrPC
incorporated by Criminal Law Amendment Act in 2009, which provides that "court may permit
the victim to engage an advocate of his choice to assist the prosecution." Whereas, right of
appeal by the victim against acquittal or against the order of conviction for lesser offence as
envisaged by the proviso to section 372 CrPC inserted by 2009 Amendment Act is an
independent and distinct right. Thus, there is a clear distinction between the right of the
victim to participate or to be heard in a proceeding initiated at the instance of the accused or
the State, which is subject to judicial discretion of the court and the independent right of
appeal against acquittal etc conferred on the victim by the proviso to Section 372 CrPC and
therefore, both cannot be equated. It is also worth noting that proviso to Section 24(8) and
proviso to Section 372 CrPC were brought in by the same Amendment Act of 2009. Thus, the
distinction between the aforesaid two provisions incorporated by the same Amendment Act of
2009, and the fetter imposed on the right of the victim to be heard in a criminal proceeding
initiated at the instance of the accused or the State makes the purpose and intendment of
the legislature amply clear, that a person, who is affected by the crime or a victim of the
crime cannot, as a matter of right, claim to be heard in a proceeding initiated at the instance
of the accused or the State or to be impleaded as respondent in an appeal preferred by the
accused against the conviction. However, if a victim comes forward and wants to be heard or
in the facts and circumstances of the case, the court considers the necessity of hearing the
informant or the victim in a proceeding initiated at the instance of the accused, the court may
always exercise its judicial discretion to issue notice and hear the victim or the informant, as
the case may be. Therefore, though a private person or a victim, who has a locus to be heard
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or to take part in a criminal proceeding instituted by the State or initiated at the instance of
the accused, the informant/victim cannot be considered or held to be entitled to be served
with notice or claimed to be heard as a matter of right. Thus, in view of the purpose and
intendment of the legislature revealed from the wordings of the provisions of Section 301 (2)
CrPC, 302 as well as the proviso to Section 24(8) of the CrPC, we are of the considered
opinion, that any interpretation, holding, that the informant shall be mandatorily made party
respondent or served him with notice in a proceeding initiated at the instance of the accused
or for that matter, making it obligatory to serve the informant/victim with notice before
proceeding to hear an appeal instituted by the accused against conviction, because of
insertion of the proviso to Section 372 CrPC may, neither be appropriate nor desirable, as it
shall not be conducive to the legislative purpose and intendment.
16. Section 4 (1) of the CrPC provides that all offences under the Penal Code shall be
investigated, enquired into and tried or otherwise dealt with the procedures prescribed in the
Code of Criminal Procedure. Section 372 CrPC provides that "No appeal shall lie from any
judgment or order of a criminal court except as provided for by this Code(Code of Criminal
Procedure) or by any other law for the time being in force." Thus, the appeal is the creature
of the statute and it has to be dealt in accordance with the procedure prescribed by the Code
of Criminal Procedure or any other law for the time being in force. Section 385 of the Code
of Criminal Procedure lays down the procedure for hearing appeal, which has not been
dismissed summarily. Section 385 CrPC reads as under :-
"385. Procedure for hearing appeals not dismissed summarily.
(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and
place at which such appeal will be heard to be given-
(i) to the appellant or his pleader;
(ii) to such officer as the State Government may appoint in this behalf;
(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the
complainant;
(iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer,
complainant and accused with a copy of the grounds of appeal.
(2) The Appellate Court shall then send for the record of the case, if such record is not already available
in that Court, and hear the parties: Provided that if the appeal is only as to the extent or the legality of
the sentence, the Court may dispose of the appeal without sending for the record.
(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the
appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground."
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17. A plain reading of the above provision would show that before proceeding to hear an
appeal, as per mandate of Section 385 (1) of the CrPC, notice of hearing is required to be
given to (i) the counsel for the appellant, (ii) the officer, as the State Govt. may appoint in
this behalf in cases instituted on the basis of police report (iii) the complainant, when the
appeal is from a judgment of conviction in a case instituted upon complaint, (iv) the accused,
when appeal is filed against the order of acquittal or on the ground of inadequacy of
sentence. What is demonstrable from the above provision is that, the section 385 (1) has
made it obligatory on the part of the court to issue notice to the complainant in an appeal
against conviction when the case is instituted upon complaint. However, Section 385 CrPC
does not provide the requirement of issuing notice of hearing of the appeal to the informant,
when the case is instituted on the basis of police report, rather, as per mandate of clause (ii)
of Section 385(1) CrPC, notice is required to be given to the officer as the govt. may appoint.
From the clause (ii) & (iii) of Section 385 (1) CrPC, it is abundantly clear that legislature has
consciously left out the informant from the entitlement of the notice in case of appeal against
conviction, when case is instituted on police report. Therefore, statutorily the informant is not
required to be served with a notice before proceeding to hear an appeal against conviction
when the case is instituted upon police report.
18. It must be borne in mind that recognition of the victim's right to participate in a
criminal proceeding, initiated at the instance of the accused or the State within the limit
prescribed under the scheme of the CrPC is prompted by the object purpose and intendment
of the legislature, that the aggrieved injured or relative of the deceased (victim), who are the
ultimate sufferer and directly affected by the crime cannot be kept outside the corridors of
the court or the right of the victims to participate in the criminal proceeding, where they are
the "aggrieved persons" cannot be totally wiped out. Looking from this angle it must be
understood that the victim is a person who is directly affected by the crime and is considered
to be the "person aggrieved". But the victim may or may not be the informant. Therefore, the
term "victim" and "informant" is not interchangeable. A victim may be an informant. But an
informant need not necessarily be a victim, reason being that criminal law can be set into
motion by any one, irrespective of whether he is personally 'aggrieved' or affected by the
crime or not, because the question of "locus" or 'person aggrieved' does not come in, while
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lodging an FIR for a cognizable offence. Therefore, an informant, who is not a victim or
affected by the crime may not have any interest in a proceeding initiated at the instance of
the accused, or for that matter in any appeal against conviction, filed by the accused, and as
such, there may not be any necessity to issue notice to the informant or impleading the
informant as party. Thus, looking from this angle also, making it obligatory or mandatory for
the accused or the court to serve the informant with a notice, before hearing an appeal
against conviction filed by the accused, is neither desirable nor conducive with the legislative
intendment.
19. The Full Bench of the Jharkhand High Court was considering a similar question that
"whether the informant and the victim, who is the ultimate sufferer of a criminal case have a
legal right to appear, in a proceeding initiated at the instance of the accused, through a
private lawyer as per provision contained under Section 301 (2) of the CrPC as well as the law
laid down in the case of J.K. International (supra). The Hon'ble Jharkhand High Court having
extensively discussed the relevant provision of the CrPC, as well as in the judgments of the
Apex Court, held in para 28 as under :
"28. Upon survey of the law evolved through the pronouncements of the Hon'ble Supreme
Court, the legislative Changes which has progressively occurred towards the recognition of the
role and rights of the victim in a criminal trial, and the discussions made herein above, it can be
said that the victim or a private person has the locus to appear in a proceeding initiated at the
instance of the accused in any case before any Court where it is a affected party, however
subject to the discretion conferred upon the Court, to be exercised in the manner and to the
extent, as may be required in the facts and circumstances of a particular case. "Locus Standi"
has been defined in the Blacks Law Dictionary as "the right to bring an action or to be heard in
a given forum." As per the Law Lexicon by P Ramanatha Aiyar "Locus Standi" signifies a right of
appearance in a Court of Justice or right to be heard or place of standing. Such a Locus Standi
confers on a person only if he has a interest in the matter. The victim / private person in that
sense does have a interest in the matter since it is the ultimate sufferer of such crime. However,
u/s 301(2) of the code, the legislature has consciously regulated it in the manner that the
Pleader so instructed by a private person, shall act in any such case under the directions of the
Public Prosecutor only and not as an absolute legal right of independent appearance before the
Court. The aforesaid provision is therefore in clear distinction from the specific provision u/s 372
proviso of the code conferring upon the victim a distinct legal right to prefer an appeal which
was not earlier available to him under the unamended section 372. The conscious distinction
made by the legislature in the wording of the two provisions is apparent and with a definite
legislative purpose and intent. If such a view is taken that the victim / private party or the
informant has legal right to appear in a proceeding initiated at the instance of the accused
under the provisions of Section 301(2) of the Cr.PC read with Section 24(8) proviso, it would
mean that the victim / private party is a necessary party in every such proceeding and as a
matter of right, is entitled to notice before the proceedings are heard and decided. Such a
course of Interpretation would amount to creating a specific legal right which the legislature
never intended to confer upon the victim / private person. Such interpretation is neither
desirable nor appropriate for a Court of law while undertaking the task of interpreting the
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specific language used in the Statute keeping into mind the Statute as a whole and the aim and
object which it seeks to achieve."
20. In view of the discussion and the reasons stated above, we answer the question in the
negative. We further hold, that it is not obligatory on the part of the accused or the court to
implead the informant as a party or to serve the informant with notice, before proceeding to
hear an appeal filed by the accused against conviction in a case arising out of a police report.
However, the "victim" may participate, with permission of the court, in the appeal filed by the
accused against conviction and may engage a counsel of his/her choice, to assist the Public
Prosecutor in charge of the case, and may also submit written argument with the permission
of the court. Therefore, in our opinion, the direction given in criminal appeal No. 222/2012 by
the learned Single Judge, making impleadment of the informant obligatory on the part of the
appellant in an appeal preferred by the accused against conviction does not reflect good law.
The question is accordingly answered.
21. The notice on the informant is dispensed with. Let the appeal be listed for hearing.
JUDGE JUDGE
Comparing Assistant
