Victim Is Not A Necessary Party In Bail Application; Need Not Be Impleaded As Party Respondent: Rajasthan HC Answers Reference
The Rajasthan High Court held that victim is not a necessary party and is not required to be impleaded as party respondent in bail applications under Sections 437, 438 or 439 of Cr.P.C.
The Bench comprising Justice Arun Bhansali and Justice Pankaj Bhandari observed, “The victim has unbridled participatory rights in criminal proceedings, does not mean that the victim must replace or substitute the State as the prosecuting agency; nor that the victim must be impleaded as a party to the proceedings so as to make the victim answerable in all aspects”.
Senior Advocates Biri Singh Sinsinwar, A.K. Gupta, V.R. Bajwa and Rajeev Surana and Advocates Kapil Gupta with Adarsh Singhal appeared for the Petitioners and Additional Advocate General G.S. Rathore with Public Prosecutor Atul Sharma appeared for the State.
A Standing Order No. 32/S.O./2023 was issued by the court in the case of Nitoo Singh @ Nitu Singh v State of Rajasthan (Cr. Misc BA No.9490/2023) mandating the compulsory inclusion of the victim as a party-respondent in all matters related to criminal acts against them, per Section 2(wa) of the Criminal Procedure Code, 1973 (CrPC). This directive was prompted by the observations in an order, where it was asserted that the victim is a necessary party in bail matters arising from criminal acts against them. However, a subsequent order was passed in the case of Pooja Gurjar & Ors. v State of Rajasthan [Cr. Misc BA No.11910/2023] expressed disagreement with the earlier decision, stating that the informant/complainant/victim in bail proceedings under Sections 437, 438, or 439 of the CrPC cannot be considered a necessary or proper party. As a result, the issue was referred to a Larger Bench for resolution.
The Court framed the following questions: “Whether in all the bail applications under Sections 437, 438 or 439 Cr.P.C., the complainant/first informant/victim defined under Section 2(wa) of the CrPCis necessary party and necessarily be impleaded as party respondent?”
The Court noted that the statute does not mandate the inclusion of the victim as a party-respondent in bail applications. The Bench noted that Section 439(1A) of the CrPC, specifically requires the presence of the informant or an authorized representative during the bail hearing for offences under Section 376AB, Section 376DA, or Section 376DB of the Indian Penal Code, related to rape. The Bench noted that the statute limits the obligation to provide a hearing opportunity to the victim in cases specific to certain sections of the offence of rape. The absence of a broader requirement in the statute for the victim's inclusion in all cases suggests that such impleadment was not the legislative intent.
The Court observed that mandating the impleadment of the victim as a party in proceedings under Section 437 of the CrPC, where a Magistrate is authorized to release certain individuals on bail, would render the provision redundant. This could lead to unnecessary delays, as Magistrates would have to wait for the victim's impleadment and subsequent hearing. In cases of non-bailable offences, the accused in custody may not even know the victim's name, further complicating the bail application process and potentially violating Article 21 of the Constitution of India, which protects personal liberty. The Court noted that common law countries, following an adversarial system, limit the victim's role to reporting the offence to the state, which then prosecutes the accused.
Furthermore, the Bench observed that the analysis of relevant provisions reveals that the State has the duty to prosecute offenders, appointing Special Public Prosecutors, Public Prosecutors, and Additional Public Prosecutors for criminal court proceedings. The amendment to Section 24(8) of the CrPC in 2009 allows victims to engage their chosen advocate to assist the prosecution.
Additionally, the Bench noted that Section 301(2) specifies that if a private person instructs a pleader to prosecute, the Public Prosecutor or Assistant Public Prosecutor will oversee the case. The Bench noted that none of the CrPC provisions necessitate the victim's impleadment as a necessary party. These provisions underscore the State's commitment to maintaining public order, ensuring justice accessibility, and actively prosecuting cases to protect victims' rights. The Court referred to the case of Shiv Kumar vs. Hukam Chand & Anr. (1997) 7 SCC 467 and emphasized the importance of a fair trial for both the complainant/victim and the accused.
The Bench cited the case of Jagjeet Singh & Ors. v. Ashish Mishra & Monu & Anr. [(2022) 9 SCC 321] and noted that the victim's extensive participatory rights in criminal proceedings, do not imply that the victim should replace or substitute the State as the prosecuting agency. Additionally, it does not mandate the impleadment of the victim as a party to the proceedings to make the victim answerable in all aspects.
The Court observed that the Standing Order, following the Court's order, posed a potential infringement on the accused persons' right to personal liberty under Article 21 of the Constitution of India. This is because it obliges the accused to remain in custody until notices are served on the victims. The order may also present challenges, considering the expansive definition of a victim under Section 2(wa) of the CrPC, encompassing every family member of the victim. The Bench noted that serving notices on all victims and determining their identities in a criminal case would be a substantial and complicated task for the accused, further exacerbated by difficulties in obtaining proper addresses for service on the victims.
Accordingly, the Court answered the reference in negative.
Cause Title: Pooja Gurjar v State Of Rajasthan (2023:RJ-JP:39252-DB)
