The Supreme Court on Monday ruled that a “victim” as defined in Section 2(wa) of the Code of Criminal Procedure. 1973 has the right to be heard at every stage after the commission of the offence, including the adjudication stage of the accused’s bail application.
“A “victim” within the meaning of the Cr.PC cannot be asked to wait for the start of the trial to assert her right to participate in the proceedings. She has a legally acquired right to be heard at each stage after the event. of an offence. Such a “victim” has unlimited rights of participation from the stage of the investigation until the outcome of the appeal or review proceedings”, the Court observed.
The Court added that “where victims themselves have come forward to participate in criminal proceedings, they must be given the opportunity to be heard fairly and effectively.”
“If the right to appeal an acquittal is not accompanied by the right to be heard when deciding on a bail application, it can lead to a serious miscarriage of justice. Certainly one cannot expect that victims remain seated on the fence and watch 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 don’t slip away”, observed the Supreme Court.
A bench comprising the Chief Justice of India, NV Ramana and Justices Surya Kant and Hima Kohli canceled bail granted to Ashish Mishra by the Allahabad High Court. Sending the case back to the High Court for further consideration of the bail application, it ordered Mishra to surrender within a week.
The bench, while hearing the plea asking for bail to be waived, identified one of the issues as under-
“Let it be a ‘victim‘ as defined in Section 2(wa) of the Code of Criminal Procedure 1973 (hereinafter, “Cr.PC“) has the right to be heard at the decision stage of an accused’s bail application?”
She noted that traditionally criminal law was seen as a trade-off between the accused and the state. The victim, the victim of the crime, was considered a mute spectator. However, the Chamber observed that the case law relating to the right of victims to be heard has evolved and that their scope of participation in criminal proceedings has widened over time. The pro-victim movement, Bench notes, was strengthened by the adoption of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 by General Assembly resolution 40/34. United Nations. The movement has been favored by other international bodies such as the European Union, which have included victims as part of criminal proceedings. Victims Crime Act, 1984, Victims’ Rights and Restitution Act, 1990 were enacted by the United States of America to provide legal assistance to victims of crime. To the same end, Australia enacted the South Australian Victims of Crime Act 2001 and Canada enacted the Canadian Victims Bill of Rights. These pieces of legislation have expanded the scope of participation as well as the scope of victims’ rights.
The 154th Report of the Law Commission of India, elucidated on the aspect of compensatory justice for a victim under a compensation scheme. In a report by the Committee on Criminal Justice Reforms, suggestions were made in 2003 to develop a cohesive criminal justice system framework that would restore public confidence in the system. This, among othersadvised –
“…the rights of the victim or his legal representative “to be involved as a party in any criminal proceedings the charges of which are punishable by imprisonment for seven years or more”.
Subsequently, the Code of Criminal Procedure (Amendment) Act 2008 came into force, which defines “victim” under section 2 (wa) as –
“…”means a person who has suffered loss or injury caused by the act or omission of which the accused is charged and the expression “victim” includes his legal guardian or heir“.”
In Mallikarjun Kodagali (death) c. State of Karnataka and Ors. (2019) 2 SCC 752, the Supreme Court had upheld the victim’s right to appeal against an order of acquittal. It also encouraged adequate representation of victims in criminal proceedings. He had observed –
“8. Victims’ rights, and even victimology, is evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than standing still or worse, taking a step back. A voice has been given to victims of crime by Parliament and the judiciary and that voice must be heard, and if it is not already heard, it must be raised to a higher decibel so that it is clearly heard. »
The Chamber noted that the right of the victim is independent of that of the State under the Cr.PC and that the presence of the State in the proceedings cannot substitute for the right of the victim to be heard. He noted –
“A ‘victim‘ within the meaning of the Cr.PC cannot be asked to wait for the start of the trial to assert his right to participate in the proceedings. He has a legally acquired right to be heard at every stage after the occurrence of an infraction. Such as ‘victim‘ has unlimited participation rights from the investigation stage until the conclusion of the appeal or review process. We may hasten to state that ‘victim‘ and ‘complainant/informant’ are two distinct connotations in criminal case law. It is not always necessary that the complainant/informant also be a ‘victim‘, for even a stranger to the criminal act can be an ‘informant’, and likewise, a ‘victim‘ need not be the complainant or informant of a crime.”
The bench set out the considerations that need to be taken into account –
- The development of criminal law jurisprudence in India recognizes the right of victims to be heard, especially in cases involving heinous crimes.
- When victims themselves come forward to participate in criminal proceedings, they must be given the opportunity to be heard fairly and effectively.
In the present case, the Chamber was troubled to find that the High Court failed to recognize the victim’s right to be heard. As submitted by lead counsel, Mr Dushyant Dave appealing on behalf of the claimant, the victims had been disconnected from the online proceedings and therefore a fair and efficient hearing could not be granted to them.
[Case Title: Jagjeet Singh And Ors. v. Ashish Mishra @ Monu And Anr. Criminal Appeal No. 636 of 2022]
Reference: 2022 LiveLaw (SC) 376
Click here to read/download the judgment
Code of Criminal Procedure, 1973 – Section 2(wa) – Victim’s right to be heard at all stages – A “victim” within the meaning of the Cr.PC cannot be asked to wait until the start of the trial to assert his right to participate in the proceedings – He/She has a legally acquired right to be heard at every stage after the occurrence of an offense – Such a “victim” has unlimited rights of participation from the stage of the investigation until at the conclusion of the appeal or review procedure.
Code of Criminal Procedure, 1973 – ‘victim’ and ‘complainant/informant’ are two distinct connotations in criminal case law. It is not always necessary that the complainant/informant also be a “victim”, as even a stranger to the criminal act can be an “informant”, and likewise a “victim” need not being the complainant or informant of a crime. . – Paragraph 24
Code of Criminal Procedure, 1973 – Where victims themselves have come forward to participate in criminal proceedings, they should be given the opportunity to be heard fairly and effectively – If the right to appeal against acquittal is not not accompanied by the right to be heard when deciding on a bail application, this can lead to a serious miscarriage of justice – Surely victims cannot be expected to sit on the fence and watch the proceedings from afar, especially where they may have legitimate grievances – It is the solemn duty of a court to dispense justice before the memory of an injustice fades – Paragraph 25