The Supreme Court recently comprising of a three-judge Bench of Chief Justice of India, N.V. Ramana and Justices Surya Kant and Hima Kohli held that a 'victim' as defined under Section 2(wa) of the Code of the Criminal Procedure. 1973 has a right to be heard at every step post the occurrence of the offence, including the stage of adjudication of bail application of the accused. (Jagjeet Singh And Ors. v. Ashish Mishra @ Monu And Anr)
Facts of the case
On October 3 last year, eight people were killed in Lakhimpur Kheri during violence that erupted when farmers were protesting against Uttar Pradesh Deputy Chief Minister Keshav Prasad Maurya's visit to the area.
The accused-respondent, Ashish Mishra, had approached the Allahabad High Court to grant him regular bail, which was approved mainly on the ground that an inquest and injury reports of the victims did not reveal any firearm injury and thus, the violence was due to an “accident by hitting the vehicle”, on February 10. However, during the course of the online bail proceedings, the victims were disconnected. Their application for re-hearing of the bail application was also rejected by the court.
Discontented with the order of the High Court, the aggrieved ‘victims’ are before Supreme Court.
Issue before the Court
Whether a 'victim' as defined under Section 2(wa) of the Code of Criminal Procedure, 1973 (hereinafter, "Cr.P.C.") is entitled to be heard at the stage of adjudication of bail application of an accused?
Contention of the Parties
Shri Dushyant Dave, learned Senior Counsel on behalf of the Appellants vehemently contended that the High Court had erred in overlooking several important aspects, and instead placed undue weightage on issues such as the absence of any fire arm injury.
Relying upon the decision of this in Court in the case of Mahipal v. Rajesh Kumar & Anr. (2020) 2 SCC 118 , it was canvassed that the High Court had disregarded well established principles that govern the Court’s discretion at the time of granting bail. It was further pressed that the bail order was passed in a mechanical manner with nonapplication of mind, rendering it illegal and liable to be set aside.
On the other hand, Shri Ranjit Kumar, learned Senior Counsel appearing on behalf of the Respondent No.1, vigorously defended the judgment of the High Court. It was submitted that given the allegations made in FIR No. 219 of 2021, the High Court was bound to prima facie consider the issue of bullet injuries. He further asserted that the RespondentAccused was never in the Thar vehicle and was instead at the Dangal venue. Lastly, learned Senior Counsel argued that in the event that this Court was to set aside the impugned order and cancel the bail, the Respondent accused would be left without any remedy and it would be nearly impossible for him to be released on bail till the conclusion of trial.
Shri Mahesh Jethmalani, learned Senior Counsel appearing for Respondent No.2, i.e., State of Uttar Pradesh, at the outset argued that a bail hearing should not be converted into a mini trail. He urged that the Court ought to consider three basic parameters at the time of deciding bail (i) the possibility of tampering with evidence; (ii) whether the accused would be a flight risk; & (iii) the nature of the offense.
Courts Observation and Judgment
The bench taking note of the facts of the case observed at length the Victim’s right to be heard.
The bench noted, "Until recently, criminal law had been viewed on a dimensional plane wherein the courts were required to adjudicate between the accused and the State, it said, adding the 'victim', a “de facto sufferer of a crime” had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator.
However, 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.”
The bench further remarked that the victim has a legally vested right to be heard at every step post the occurrence of an offence. Additionally such a 'victim' has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision.
On the domestic front, recent amendments to the CrPC have recognised a victim's rights in the Indian criminal justice system and the genesis of such rights lies in a Law Commission report in which “radical recommendations'' were made.
The bench noted, "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 bench referring the report of a committee of the law panel remarked, “The victim's right to participate in the criminal trial and his/her right to know the status of the 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.
The legislature has thoughtfully given a wide and expansive meaning to the expression '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."
The bench said, “It cannot be said 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...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 the state through its probe agency and the prosecutor do not mean that victims have been heard, it said.
The bench, however, clarified that the 'victim' and complainant or informant' are two distinct “connotations in criminal jurisprudence”.
The bench noted, “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 bench expressed its disappointment with the manner in which the High Court has failed to acknowledge the right of the victims by not according to the hearing to them and stated, “We therefore, answer the question (on the right to be heard) ...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.”
It is worth mentioning that, the complainant and those seeking cancellation of the bail are close relatives of the farmers who have lost their lives in the incident, it said, adding that the stand that the lawyers of the 'victims' had got disconnected from the online proceedings in the high court has not been assailed.
The Supreme Court setting aside the bail granted to Mishra by the high court observed: “This Court is tasked with ensuring that neither the right of an accused to seek bail pending trial is expropriated, nor the ‘victim’ or the State are denuded of their right to oppose such a prayer. In a situation like this, and with a view to balance the competing rights, this Court has been invariably remanding the matter(s) back to the High Court for fresh consideration.”
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