Rajasthan High Court: In a question that arose before the Court that whether in all the bail applications under Sections 437, 438 and 439 of the Criminal Procedure Code, 1973 (‘CrPC’), the complainant, first informant or the victim defined under Section 2(wa) of the CrPC was necessary party, the Division Bench of Arun Bhansali and Pankaj Bhandari*, JJ., opined that none of the provisions in the CrPC provided for the victim’s impleadment as a necessary party and it was important to note that provisions in CrPC recognised the State’s responsibility to uphold public order and ensure access to justice for all, especially in situations where the victim’s voice might otherwise go unheard. Further, in cases of non-bailable offences, if the accused in custody did not know the victim’s name, his bail application would be delayed and it would be violative of Article 21 of the Constitution, as his custody would be dehors the provisions of the statute. Thus, the Court opined that the victim was not a necessary party and it was not required to be impleaded as respondent in bail applications under Sections 437, 438 or 439 of the CrPC.
Background
In an instant case, a Standing Order dated 15-09-2023 was issued by the office of the present Court, whereby it was enjoined upon everyone concerned, that in the future, all the matters which arose out of criminal act committed against the victim as defined under Section 2(wa) of the CrPC, the victim should necessarily be impleaded as respondent.
However, in Pooja Gurjar v. State of Rajasthan, S.B. Criminal Miscellaneous Bail Application No. 11910 of 2023, it was held that first informant, complainant or victim in the proceedings seeking grant of bail under Sections 437, 438 and 439 of the CrPC could not be considered as necessary party or a proper party.
Accordingly, the question that whether in all the bail applications under Sections 437, 438 and 439 of the CrPC, the complainant, first informant or the victim defined under Section 2(wa) of the CrPC was necessary party, was sent to the present bench by way of criminal reference.
Analysis, Law, and Decision
The Court upon perusal of the Sections 437, 438 and 439 of the CrPC opined that there was no provision provided in the CrPC whereby the victim was required to be made a respondent in all bail applications. However, as per Section 439(1A) of the CrPC, at the time of hearing of the bail application under Sections 376-AB, 376-DA, or 376-DB of the Penal Code, 1860 (‘IPC’), presence of the informant or any person authorised by him, was obligatory. Thus, the statute only provided for giving opportunity of hearing to the victim in cases of some sections related to the offence of rape. The Court relied on Padma Sundara Rao v. State of Tamil Nadu, (2002) 3 SCC 533, and opined that if it was the legislature’s intention to implead victim as a necessary party in all cases, it would have been mentioned in unequivocal terms in the statute.
The Court opined that if the victim was impleaded as a party in proceedings under Section 437 of the CrPC, wherein Magistrate was authorized to release persons on bail under sixteen years of age, it would become redundant and the Magistrate would have to wait for impleadment of victim as a party for hearing them. Further, in cases of non-bailable offences, if the accused in custody did not know the victim’s name, his bail application would be delayed and it would be violative of Article 21 of the Constitution, as his custody would be dehors the provisions of the statute.
The Court opined that the Common Law countries followed the adversarial system of criminal administration and the victim’s role in that system was only limited to that the report of the alleged offence had been transmitted to the State machinery and thereafter, the State persecuted the accused for the crime committed within the territory. The Court further opined that none of the provisions in the CrPC provided for the victim’s impleadment as a necessary party and the provisions in CrPC recognised the State’s responsibility to uphold public order and ensure access to justice for all, especially in situations where the victim’s voice might otherwise go unheard.
The Court opined that the mandate in Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321, that the victim had unbridled participatory rights in criminal proceedings did not mean that the victim must replace or substitute the State as the prosecution agency, nor that the victim must be impleaded as a party to the proceedings so as to make the victims answerable in all aspects.
The Court opined that the effect of the Standing Order dated 15-09-2023 would be that the accused persons should be bound to remain in custody awaiting the services of notices upon the victims, which was in direct conflict with their right to personal liberty guaranteed under Article 21 of the Constitution. The Standing Order could also create further hurdles, as the victim’s definition was wide enough to include every person of the victim’s family and it would be humongous task for the accused to serve notices upon all the victims and equally, troublesome would be the service on the victim without having their proper addresses.
The Court opined that “the right of the victim as well as the accused person shall be rightly balanced and any inclination to either of the parties would not subserve the fundamental principle of fair trial, therefore, it shall be kept well within the minds of the Legislature as well as the judicial discipline that while granting any right to the victim, the right of the accused shall also be protected at the very first instance.” Thus, the Court opined that the victim was not a necessary party and it was not required to be impleaded as respondent in bail applications under Sections 437, 438 or 439 of the CrPC.
[Pooja Gurjar v. State of Rajasthan, 2023 SCC OnLine Raj 4210, decided on 19-12-2023]
*Judgement authored by- Justice Pankaj Bhandari
Advocates who appeared in this case :
For the Petitioners: Biri Singh Sinsinwar, Sr. Advocate assisted by Harendra Singh Sinsinwar, Dhruv Atrey, N.N. Meena, Advocates; A.K. Gupta, Sr. Advocate assisted by Rinesh Gupta, Gaurav Sharma, Anoop Meena, Saurabh Pratap Singh, Advocates; V.R. Bajwa, Sr. Advocate assisted by Savita Nathawal, Advocate; Rajeev Surana Sr. Advocate assisted by Sankalp Sogani, Muskan Verma and Umang Jain, Advoctaes; Pankaj Gupta with Naman Yadav, Saurabh Yadav, Hemang Singh Sinsinwar, Yogendra Singh, Advocates; Sanjay Mehla with Sunita Mehla and Nagendra Sharma, Advocates; Rajesh Sharma, Advocate; Kapil Gupta with Adarsh Singhal and Ajay Gadwal, Advocates; Manish Gupta, Kapil Prakash Mathur, Advocates; Sudesh Saini with Mohd. Zuber, Advocates, Nikhil Sharma, S.S. Hora, Hemant Nahta, Shyam Bihari Gautam, Anshuman Saxena, Pankaj Agarwal, Advocates; Mohit Sharma with N.P. Meena, Advocates; Jitesh Jain, Timan Singh, Abhilash Sharma, Ashwani Chobisa, Sandeep Pathak, Dushyant Singh Naruka, Mritunjya Sharma, Anurag Mathur, Saurabh Jain, Rishu Jain, Pallav Jhalani, B.R. Rana, B.R. Choudhary, Pratush Choudhary, Shubham Khunteta, Harsh Joshi, Akshay Shekhawat, Abhishek B. Sharma, Dhananjay Singh Gokhar, Aziz Ahmed, Farooq Ahmed, Parmeshwar Pilania, Advocates; D.V. Tholla with Himanshu Tholla, Advocates; Rohitash Kr. Saini, Naman Yadav, Tapish Saraswat, Nitin Jain, Manish Kumar Sharma, P.C. Devanda, Mahendra Saini, Prashant Deora, Anish Badala, Anuraj Pareek, Vimal Kumar Jain, Naman Maheshwari, Advocates.
For the Respondent: G.S. Rathore, GA cum AAG, Atul Sharma, PP, Kirtivardhan Singh Rathore, Tayyab Ali, Prashant Sharma, Advocates.
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