Rights Of The Victim/Complainant – In Respect To S. 301 CrPC

The power that is given to the victims' lawyer in such type of cases is defined under Section 301(2) of the Criminal Procedure Code^[2] which reads :"If in any such case, any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case."

This clearly states that the lawyer chosen by the victim has rights, which are limited to assisting the public prosecutor or the assistant public prosecutor appointed by the State and that to only in assisting them when the evidence is recorded. In so far as right to address arguments in concerned, the victims' counsel only has a right to submit written submissions.

This major difference between the rights of the victim and the rights of the accused leads to various questions in mind and as to how this discrimination has never been thought of or removed from the Code where the main aim of the law is to ensure protection of citizens and relief to the victims of crimes, in order to have faith in the legal system of the country which with these sections at hand the legislature as well as the judiciary is failing to achieve.

The defining scope of this article is to analyse the extent to which the victim is differentiated with the accused within the ambit of the right to engage his/her own lawyer at the stage of trial which is the most crucial stage of any case as all the evidence is recorded and this forms the basis of any criminal proceedings. Firstly this article talks about how the sections in the Code that are violative of Article 14 of the Constitution of India^[3]. Secondly this article discusses about the internal discrimination which is present for the rights of the complainant at different levels of hierarchy where the complainant is given the right to appeal under special leave in the High court against the order of acquittal as given under Section 378(4) of the Criminal Procedure Code^[4] and also the insertion of section 372 vide amendment in 2009 which describes that no leave to appeal is required. Thirdly this article also emphasizes on the declaration of the United Nations^[5] describing the rights of the victim. Fourthly this article will also analyse the parity in the rights given by the legislation and the victim also having the right to cancellation of bail if the victim is aggrieved by the order under Section 439(2) of the Code of Criminal Procedure,1973^[6]. Fifthly the complainant has the right to be heard if the magistrate after taking cognizance of the police report filed under section 173 of the Code^[7] and evaluation under section 190(b) ,1860 feels the accused to be discharged of any offence under the Indian Penal Code^[8]. Sixthly being that the public prosecutor on behalf of the complainant can withdraw from prosecution and therefore ,withdraw the case under section 321 of the Code^[9] and the complainant has been given no right to oppose this step.

First let us finish the discussion on the part of discrimination that these sections i.e. 301 and 303 create between the rights of the complainant and the accused. The stakes should be more on the side of the complainant but as per the provisions, they are exactly the opposite. For us to understand this better I would like to first analyse as to why would the lawmakers make such discriminatory provisions. The idea of the lawmakers or drafters while making this Code was of making any criminal act as a crime against the state and consequently, that the State would appoint its own lawyer that is the public prosecutor ,so that larger interests of the society could be protected. In those times there were not that many lawyers and the resources that people had were limited so the lawmakers decided that in the absence of a lawyer the accused who had committed a heinous crime would go scot free. What they did not realise at that time was that at that time in the 17^th century there were very few cases that were to be dealt and that the public prosecutors so appointed by the state were able to work properly and through their work the motive of this Code^[10] was achieved but with time two things increased simultaneously the number of crimes as well as law as a profession and the number of lawyers had increased exponentially. Although the state to combat this had increased the number of public prosecutors but they were very less proportionate and because of all of this we are here realising that this has indeed led to the discrimination of the one for whom this Code^[11] was made. Nowadays the scenario that is prevalent in most of the courts is that there is a single public prosecutor appointed for each court and as to say each magistrate and the number of filings of cases range from 10-25 cases per day. Now in such a situation given that there is only one person doing it is practically impossible to be thorough all the case briefs and also that there is no matter of specific interest that the public prosecutor has in the specific case which would lead to two things that the public prosecutor would not be able to read the case in detail and some evidence may not be placed on record and that the complainant cannot get his own lawyer to do this and basis for the whole case weakens the case for the prosecution and therefore, there are less chances to succeed and there is limited scope for the lawyer of the complainant when he approaches the appellate court to argue and the second thing is that it leads to increase in the number of adjournments that are being taken because of this burden and as it is famously said that justice delayed is justice denied. Another interesting aspect to look at the above dilemma is that in a crime committed against the victim, the State is just a secondary victim and the victim is primary victim so as to say if the secondary victim in a particular case gets the right to be heard as it is the public prosecutor that represents the state then these rights should be conferred to the primary victim and these rights should not be minimised to just assisting the counsel for the secondary victim instead if not at the forefront for the prosecution which the lawyer should be. He should at least be at an equal footing with the public prosecutor.

Now talking about how these rights of the victim are discriminatory as compared to those of the accused. Article 14 of the Constitution of India^[12] reads as under:" The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth." This particular Article of the Constitution not only refers to the citizens of India but also includes the non citizens which in turn is a broader term than the term victim which was inserted vide amendment of the year 2009 in Section 2(wa) of the Code of criminal procedure^[13] code which states "Victim, 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 above two sections are violative of Article 14 of the Constitution of India^[14] and therefore are held to be void under Article 13(1) of the Constitution of India^[15] which reads as "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void." The part mentioned here is the part where Article 14 is mentioned and which is being violated. The argument that is being advanced here is not to hold the whole code of criminal procedure as being void but just the part of which is being discriminatory and therefore violative of Article 14 that is primarily section 301 of the code of criminal procedure^[16] as talked about in the case of Keshava Madhava Menon v State of Bombay^[17] where the Court stated that "no existing law could be allowed to stand in the way of the exercise of fundamental rights, that such inconsistent laws were not wiped off or obliterated from the statute book and that the statute would operate in respect of all matters or events which took place before the Constitution came into force and would remain in the statute book." By this it clear that the main aim is not to make the whole Code void but to only the section that is held to be discriminatory which is Section 301 as mentioned above.

Now the second argument of my research where the victim has the right to appeal under special leave in the high court under section 378(4) of the Code of Criminal Procedure^[18] and also section 372 of the code which was inserted vide the amendment of 2009 where it was clearly stated that no leave to appeal required. This amendment of the year 2009 made a lot of changes for the victim and also in the rights prescribed to them and the also the insertion of the meaning under section 2(wa) of the code of criminal procedure code^[19] which is discussed above and along with also the proviso which was also inserted under section 372 of the Code which now provides the right to appeal to the victim against any order passed by the court acquitting the accused or conviction for a lesser offence or inadequate compensation and also in these cases no right to appeal required. Otherwise earlier to this amendment for the insertion of this section in this code this right to appeal against acquittal was only provided under section 378(4) of the code of criminal procedure and the victim had no right to appeal against the order of acquittal and that the victim or the complainant could only prefer a revision and thus the powers of the victim were thus confined and were not given wholly as it is given by this amendment as in the case of revision the power of the courts is limited as even if the courts find the trial court to be wrong in acquitting the accused the maximum that they can do is only remand the case back to the trial court. So the amendment has further advanced the rights of the victim in case of the appellate courts and therefore it would not be fair if they are not provided with not more but at least equal rights as to the accused at the stage of the trial. As seen in the case of Mallikarjun Kodagali (Dead) vs The State Of Karnataka^[20] reported as which clearly stated the victim to have a right to appeal against acquittal and that these rights would also confer in the case of a complainant case and it is not at all necessary for the First Information Report to be registered in order for the application of the right that is given under Section 372 of the code of criminal procedure^[21]. The court while passing the judgement also ruled that this is a substantive right and that this right does not have a retrospective effect but instead is prospective in nature and the right to appeal against acquittal can only be filed in cases where the order for acquittal is after 31^st of Decemeber 2009 and lastly the court also held that for exercising this right there is no need to seek any leave to challenge the acquittal. The point of this argument is when these rights are being conferred to the victim/complainant at a stage which is later than the trial court stage and therefore later in chronology then why doesn't the legislature amend the law that discriminates the same victim at the trial stage but is given a right at the next stage.

Thirdly in this research we look at the declaration of basic principles of justice for victims of crime and abuse of power which is adopted by the General Assembly in its resolution which is dated on the 29^th November 1985 which defines the victim in the first part itself being the first point as to "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. This definition is similar to what is defined after the amendment in section 2(wa) of the Code . So this makes us clear in our minds that the victim that is being accepted in this declaration is same to the victim being discussed in the Code vide amendment 2009. This declaration^[22] further talks about in its point 6(b) where it says " Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system. This basically means that the views and all the concerns of the victim are to be incorporated while the case is going on and it is also to be kept in mind that the accused is not discriminated against. So to further this discussion lets now talk about in the particular scenario of our country where the victim is himself not at par with the accused and that his pleader at the stage of trial as per section 301 of the Code^[23] is only allowed to assist and that to after recording of evidence is over and section 303 of the code^[24] as discussed earlier gives the accused right to choose his own lawyer. So therefore in the scenario that is discussed here it is not the accused that is being discriminated against but the victim and that equal right should be provided to him. Now another possible argument might be provided that the victim may not have adequate funds to hire legal services of a person then this question is well being treated by the code of criminal procedure in Section 304 which talks about the court to provide a lawyer for the accused when the accused does not have enough resources. If such sections are made for the accused then this could be done for the victim as well whose interests should be protected before and should be given priority in relation to the accused. Also when the legislation could add the definition similar to that in this declaration and also give a right to appeal against the order of acquittal which is also a part of this declaration then why is it that this right to the victim is not given.

Fourthly I would like to emphasize on the right that the victim gets where in bail is provided to the accused. This right to seek cancellation of bail in cases where the victim is aggrieved with the order of the court for providing bail and is defined under section 439(2) of the code of criminal procedure^[25] which states " A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. This gives the right to the victim as nowhere in the the section is it written that this right is exclusive to the state or that it can be exercised only by the public prosecutor. The whole reason behind providing this right is that once right to appeal has been given to the victim it is logical that it should include all the rights that are attached to the right to appeal and this right to seek cancellation of bail is a right which is ancillary to it. This is as logically first the victim gets the right to appeal against the order of acquittal and it is only after that the victim is given the right to resist or seek the cancellation of bail. As mentioned in the case of R.Rathinam v State^[26] upheld this section as to the high court has the power to direct arrest of a person who had earlier been released on bail by the same court on judicial consideration and the court also held that this action can also be taken suo moto and any member of the public can maintain a petition before the high court reminding him a need to exercise its suo moto power in an individual case. In the case of Mahesh Pahade v State of Madhya Pradesh^[27] held that the right to seek cancellation of bail does not only apply in the High court but that it also extends to the Sessions court as this being the first appellate court in hierarchy. The argument that is being advanced here is that rights in case of appeal and then to bail are thus being provided extensively and then why no such right is being provided before the appeal is preferred where there would not be any need by the victim for appeal itself if he is given adequate right and support at the ground level that is the trial court.

Now we will advance our argument by looking at the trial stage itself that is when the police officer presents the report/challan under section 173 of the code of criminal procedure^[28] which is the detailed summary of all the findings and investigation that are conducted by the police and then this is presented in the court of the judicial magistrate and then the magistrate takes cognizance of this matter as to powers described to him under section 190(1)(b) of the code of criminal procedure^[29] which states as follows " Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence- upon a police report of such facts;. So the magistrate while taking cognizance of such matters and in relation with the report that is being filed by the police has reason to believe that on the alleged facts there is no case to be made against the accused and that he has not committed any offence then the victim is given the opportunity to argue on this decision of the court and with the help of the facts and circumstances. The code of criminal procedure is silent as to what will be the procedure and the right of the complainant in case the magistrate decides not to take cognizance of the matter or that after looking at the report filed by the police he finds that there are no sufficient grounds to procced with the hearing against any person named in the First Information Report. This gap is filled up by the judiciary and has held in such situation notice must be given to the complainant to afford him opportunity to be heard at the time of consideration of the report filed by Section 173 of the code of criminal procedure. As held in the case of Bhagwant singh v Commissioner of Police^[30] which said the informant or the victim to be given opportunity in case in the magistrate decides not to take cognizance in the matter and that delay of the victim not coming is not a valid ground to finish the case that is going on. The court also held in case where the victim himself is dead and that the injured person or the relative also has the locus to be hear at the time of representation of the report by the police to the magistrate. In the case of Union Public Service Commission v Papaih^[31] where it held that according to the victim if he feels that the information adduced to in court under the report given by police is incomplete or that is deliberated then the victim as discussed above has the right to represent himself as according to the misled facts the magistrate feels not to take cognizance of the offence and the magistrate cannot dismiss this solely on the grounds that the decision is given earlier and that the court does not have the power to review its own decision instead it can order for further investigation in the case as it has power under section 173(8) of the code of criminal procedure^[32] which states that "Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)." All of this states that the victim is not only given the rights at the appellate courts or the courts which are higher at the level of hierarchy but the rights to the victim are even given at the trial court stage where in case the magistrate does not take coignzance the victim has the right to argue against this then why is the victim not given the right to be represented in the case where the magistrate has taken cognizance of the report.

Lastly the provision is related to the withdrawal of complaint under section 321 of the code of criminal procedure code^[33] which states " Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b)if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences:

This thereby gives opportunity to the public prosecutor representing the State to withdraw from the prosecution at any time that they want during the going on of the investigation but just before the sentence is pronounced and they can do so without the consent of the victim or complainant. They give them rights to withdraw from the prosecution for any person tried for any offence. The section does not talk about the role of the victim at all. But in the certain judgements by the Hon'ble Supreme Court it is held that the victim has the right to oppose the State's plea for withdrawal of prosecution. The court in the case of Abdul Karim v State of Karnataka^[34] held that the usage of section 321 of the code of criminal procedure code^[35] is to be done after the public prosecutor is well acquainted with the facts of the case and that the court gives the consent after looking into the application as being made in good faith and in the interest of public policy and justice. The court also held that though the power of the court is supervisory it cannot be upheld just because a matter of course and therefore the victim/complainant can oppose this where the public prosecutor wishes to withdraw the case. The victim/ complainant is given this right also as to prevent his case to be withdrawn he is also given right when cognizance of his case by the magistrate is not taken so if the victim is given such right before the commencement of trial and then at any time when the trial is being stopped by the prosecution at the premature stage then why is that the victim is not given the right to be heard during the trial and when the whole evidence is going on.

This issue of the right of the victim being provided at the stage of the trial and how it is discriminatory was subject matter of a writ petition under Article 32 of the Constitution of India^[36] in the case of Ishan Kakkar v Union of India^[37] where the court had dismissed the petition. There is a need to amend these provisions in order to make them just fair and equitable to everybody and not discriminatory for the victim whose rights are being protected but he is given less opportunity than the accused. The main aim of the code of the criminal procedure is to protect the victim from such a heinous crime that is being committed and at the same time the accused should be given adequate rights to represent himself. But at the same time with the insertion of such sections in the Code it reverses the whole purpose of the code at times where there is a need for the victim to be safeguarded from such provisions. The whole motive behind this is defeated if the people of the country lose the confidence in law which would basically mean more people not trusting the legal machinery of the state and will resort to more crimes and thereby increasing the crime level. Some people may even misuse the power that they have because of their position to manipulate situations benefitting them and thereby leading to loss for many. Hence section 301 of the Code of Criminal Procedure, 1973^[38] may be amended as to bring the victim at par with the accused in so far as rights to participate in proceedings before trial court are concerned.