Victim Of Sexual Offences Has Right To Be Heard At Every Stage But No Requirement In Law To Implead Her As Party Respondent: Delhi High Court

The Delhi High Court has held that there is no requirement in law to implead the victim of sexual offences as a party to any criminal proceedings instituted by the State or the accused.

Justice Anup Jairam Bhambhani referred to the recent judgment of the Supreme Court in Jagjeet Singh & Ors. v. Ashish Mishra @ Monu & Anr. and said that a victim now has an “unbridled participatory rights” in all criminal proceedings but that, in itself, is no reason to implead the victim as a party in the matter, unless otherwise specifically provided in Code of Criminal Procedure.

The court noted that section 439(1A) Cr.P.C. mandates that a victim be heard in proceedings relating to bail, without requiring that the victim be impleaded as a party to bail petitions.

“In light of the decision of the Supreme Court in Jagjit Singh (supra), section 439(1A) Cr.P.C. must now be expanded to include the victim‟s right to be heard even in petitions where an accused seeks anticipatory bail; a convict seeks suspension of sentence, parole, furlough, or other such interim relief,” the court said.

Section 439(1A) of CrPC states that the “presence of informant or any person authorised by him shall be obligatory at the time of hearing of bail application under sections 376 (3) or 376AB or 376DA or 376DB of Indian Penal Code.”

The court said that although section 439(1A) Cr.P.C. makes the “presence of the informant” obligatory at the time of hearing, but what is mandated is the victim’s right to be effectively heard in the matter.

“If necessary, legal-aid counsel may be appointed to assist in representing the victim; and the mere ornamental presence of the victim, or their representative, without affording them an effective right of hearing, would not suffice,” the court said.

The court was dealing with a bail plea moved by an accused who is in custody in an FIR registered under Section 376 of IPC and Section 4 of the POCSO Act.

Justice Bhambhani had appointed Senior Advocate Rebecca John as amicus curiae in January to decide if the requirement of giving intimation to a victim or complainant of sexual offences under IPC and POCSO Act, also requires impleadment of such person as a party to a bail plea or appeal. 

The court directed the Registry to carefully scrutinise all filings relating to sexual offences and ensure that the anonymity and confidentiality of the prosecutrix or victim is strictly maintained.

It said that the name, parentage, address, social media credentials and photographs of the prosecutrix or victim must not be disclosed in the filings, including in the memo of parties.

“Though, if the foregoing direction is scrupulously followed, the identifying particulars would not appear in the cause-list, by way of abundant caution, the Registry must ensure that such particulars do not get reflected in the cause-list of the court in any manner,” the court added.

The court also directed that the files or paper-books of matters relating to sexual offences filed in the High Court must not be provided to any person other than the parties to the litigation, after due verification of the identity credentials of such persons.

“To obviate the dissemination of identifying particulars to any other person or agency even within the High Court, it is further directed that all service to be effected upon the prosecutrix/victim/survivor shall only be through the Investigating Officer in accordance with Practice Directions dated 24.09.2019 and not through the process serving agency, though a copy of the petition or application must be served upon the prosecutrix/victim/survivor,” the court added.

It further directed the Investigating Officers in such matters to remain in plain clothes so as to avoid any “unwarranted attention” in effecting the service on the prosecutrix or victim.

“Furthermore, the Investigating Officer must also inform the prosecutrix/victim/survivor that they have the right to free legal-aid/representation in accordance with the mandate of the Supreme Court in Delhi Domestic Working Women's Forum vs. Union of India & Ors,” the court ordered.

Justice Bhambhani also said that the directions issued be summarized by way of written instructions or a notification by the Registrar General and be circulated to the Principal District & Sessions Judges in the national capital in their respective jurisdictions and also to the Commissioner of Delhi Police.

“This court records its appreciation for the invaluable assistance rendered in the matter by Ms. Rebecca M. John, learned senior counsel as Amicus Curiae,” it said.

The court observed that the victim of an offence may thirst for conviction due to which the State is expected to be fair and present the case with detachment, without harbouring any anxiety to secure a conviction by any means.

However, the court added that the victim will have no role in determining the necessity of custodial interrogation, which would be the job of the investigating agency.

Reiterating that the right to be represented and heard is distinct from the right or the obligation to be a party to criminal proceedings, the court said:

“Indeed, there may be times where a victim may not seek a hearing before the court, and making a victim a party to the proceedings, mandating them to appear and 'defend', so to speak, various proceedings that the State or the accused may initiate, may cause additional hardship and agony to the victim.”

The court directed Registrar General to bring this judgment to the notice of the Chief Justice for framing of appropriate practice directions or notice or notification, as may be deemed appropriate

Title: SALEEM v. THE STATE OF NCT OF DELHI AND ANR.

Citation: 2023 LiveLaw (Del) 325

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