A Division Bench of the Calcutta High Court comprising of Chief Justice Thottathil B. Radhakrishnan and Justice Aniruddha Roy, has held that in case of an appeal from a conviction in an offence committed against a child or a woman, the victim is not a necessary party to the appeal.
Background of the Case
The appellant was held guilty and convicted for an 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 and in default to undergo rigorous imprisonment for one year for the offence punishable under Section 376(3) of I.P.C.
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 a 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, the Court recorded an order,
“One private person is impeaded as respondent no. 2. We are of the view that the impleadment of such a person as respondent needs to be considered, on the point, whether it is to be permitted”.
Submissions made by the Counsels
Advocate Sourav Chatterjee referred to the provisions of Section 23, 24(5) and 33(7) of the POCSO Act to pointed out that there was an overwhelming legislative thrust to ensure protection of the victims.
Advocate Shiv Shankar Banerjee made reference to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015; for short 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.
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.
Judgement and Reasoning
The bench observed that:
"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."
The Bench made it clear that the legal rights, eligibility and interest of a victim, in the course of an appeal against conviction, would stand satisfied if the State carry 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 order has come in a criminal appeal filed by one Ganesh Das, who was convicted for offences punishable under Section 376(3) of IPC and Section 6 of the POCSO Act by the Trial Court, and was sentenced to undergo rigorous imprisonment for 20 years.
The Division Bench has held that victims of sexual offences falling either under the IPC or POCSO Act would be entitled to have their cause defended in appeals arising from judgements of conviction. However, it is the duty of the State and the Public Prosecutor to comprehensively deal with all aspects of such a criminal appeal against conviction and protect the interest of the victim, even without the impleadment of the victim in the array of parties.
The Bench further noted that contents of Section 374 and Section 385 of CrPC 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.
"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," the order stated.
Case Details
Case Title: Ganesh Das v. State
Bench: Chief Justice Thottathil B. Radhakrishnan and Justice Aniruddha Roy
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