Victim Is Not A Necessary Party To A Criminal Appeal From Conviction For Offences Against Women Or Child Under POCSO Or Other Statutes: Calcutta HC

An order passed by a Division Bench comprising of Chief Justice Thottathil B. Radhakrishnan and Justice Aniruddha Roy states,

"The victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the I.P.C. or POCSO Act or any other penal provision which will apply in relation to offences affecting human body against any "woman" and/or "child", both those expressions being understood in the context of the respective legislation which deals with such offences."

The Bench made it clear that the legal rights, eligibility and interest of a victim, in the course of an appeal against conviction, would stand satisfied if the State carries out diligently and vigilantly its role in criminal cases and the Public Prosecutors discharging their duties and responsibilities due from them in terms of the provisions of Cr.P.C and other governing laws.

The order has come in a criminal appeal filed by one Ganesh Das, who was convicted for offences punishable under Section 376(3) of IPC and Section 6 of the POCSO Act by the Trial Court, and was sentenced to undergo rigorous imprisonment for 20 years.

The appeal was opposed by the State, noting that the same is defective as the victim has not been made party.

The Bench had thus framed the following questions for consideration:

• Is the victim a necessary party to an appeal, under Section 374 of CrPC, from conviction?
• Would such an appeal be defective in the absence of impleadment of the victim?
• If the answers to these two questions are in the negative, what is the procedure to be adopted?

Findings

The Division Bench has held that victims of sexual offences falling either under IPC or POCSO Act would be entitled to have their cause defended in appeals arising from judgements of conviction.

However, it is the duty of the State and the Public Prosecutor to comprehensively deal with all aspects of such a criminal appeal against conviction and protect the interest of the victim, even without the impleadment of the victim in the array of parties.

This approach, the Court said, shall synchronize the opportunity to contest the appeal with victim's right to privacy and protection of identity.

Reliance was placed on Nipun Saxena & Anr. v. Union of India & Ors. (2019) 2 SCC 703.

The Bench further noted that contents of Section 374 and Section 385 of CrPC taken together will show that issuance of notice of the hearing of the appeal to the victim is not prescribed, though notice to the complainant is prescribed if the appeal is from a judgment of conviction in a case instituted upon complaint.

"Trial, conviction and sentence are matters primarily between the accused person and the State. The statutory provisions for institution of the appeal and the hearing thereof do not, in their terms, enjoin impleadment of the victim in these appeals," the order stated.

Accordingly, the Bench has ordered:

• The victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the I.P.C. or POCSO Act or any other penal provision which will apply in relation to offences affecting human body against any "woman" and/or "child", both those expressions being understood in the context of the respective legislation which deals with such offences.
• No such appeal would be defective in the absence of impleadment of the victim.
• The procedure to be adopted in all such appeals would be to deal with those appeals without insisting on the impleadment of the victim. In cases where, over and above the assistance of the Public Prosecutor representing the State, the appellate court deems it necessary to provide further assistance to secure the interest of the victim through legal aid, the HCLSC or the DLSA concerned may be required to provide assistance through an empanelled or other advocate as may be decided by the HCLSC or the DLSA concerned. However, even in such cases, it shall be insisted by the Court that the principles relating to protection of dignity and privacy and modality of ensuring those values, as delineated above, are scrupulously adhered to.
• As a necessary corollary, the appeals by victims would be governed by the directions in Nipun Saxena (supra); however, that there need not be any doubt as to how the victim would be described. It would suffice that the cause title of such an appeal would show that the appellant is the victim in the criminal case identified by its number, the court below and/or the police station. This will insulate the victim from being subjected to disclosure of identity of that person.

Case Title: Ganesh Das v. State

Click Here To Download Order

Read Order