Introduction
The United Nations Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985, adopted vide the United Nations General Assembly Resolution 40/34, was a landmark that boosted victim concerned movement.
Under the aforesaid Declaration, the term ‘victim’ was defined as “Someone who has suffered harm, physical or mental injury, emotional suffering, economic loss, impairment of fundamental rights through acts or omissions that are in violation of criminal laws operative within a State, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted, and regardless of the familial relationship between the perpetrator and the ‘victim’.”
Jagjeet Singh And Ors. v. Ashish Mishra @ Monu And Anr. [Arising out of Special Leave Petition (Crl.) No. 2640 of 2022]: Case Study
Three Judges Bench of the Supreme Court comprising of Chief Justice of India, N.V. Ramana, Justice Surya Kant and Justice Hima Kohli, the bench held that a ‘victim’ as defined u/s 2(wa) of the Code of the Criminal Procedure, 1973 (for short CrPC) has a right to be heard at every step stage of the occurrence of crime. It includes the stage of adjudication of bail application of the accused person.
Brief facts of the case
Eight people were killed in Lakhimpur Kheri due to eruption of violence when farmers protested against Uttar Pradesh’s (UP) Deputy Chief Minister Keshav Prasad Maurya visit.
The accused/ respondent had approached the High Court of Allahabad to seek regular bail, the bail was approved on the ground that an inquest and injury reports of the victims did not reveal any firearm injury and the cause of violence was an “accident by hitting the vehicle”. During the virtual hearing of the bail application the victims were disconnected and the court rejected the plea for re-hearing of the bail application of the accused. Being aggrieved by the order of the High Court, the victims approached the Supreme Court of India.
Issue
Whether a victim as defined u/s 2(wa) of the CrPC shall be heard during the adjudication of bail application of the accused person?
Observation of the Supreme Court
The three Judges bench of the Supreme Court of India while taking a note of the facts of the case observed and stated that the victim has a right to be heard at every stage starting from the investigation till the end of the trial.
It was observed by the Supreme Court bench that as per the criminal law the courts were required to adjudicate the case between the accused and the State, and the victim being a “de facto sufferer of an offence” had no opportunity to participate in the adjudicatory process and the victim was simply made to sit outside the Court as a mute spectator.
It was added by the Court that now the victim has an absolute right to be heard and participate in the criminal proceedings actively. There is no bar under the CrPC restricting the victim to be heard before the Court and the victim who is aggrieved cannot be asked to sit like a mute spectator. The Court added that the victim has complete participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision.
It added that the recent amendment in the Code have recognised a victim’s rights in the Indian criminal justice system and the genesis of such rights lies in a Law Commission report in which “radical recommendations” were made.
In a criminal trial the victim’s right to participate and right to know the status of investigation, and right to be heard at every crucial stage during the grant or cancellation of bail, are recognised by the Committee. The Parliament to bring into force the Code of Criminal Procedure (Amendment) Act, 2008, that has not only inserted the definition of a ‘victim’ u/s 2 (wa) but also recognised various rights of such victims during the trial.
The Supreme Court bench while referring the report of a committee of the law panel remarked that “The victim’s right to participate in the criminal trial and his/her right to know the status of the investigation, and take necessary steps, or to be heard at every crucial stage of the criminal proceedings, including at the time of grant or cancellation of bail, were also duly recognised by the Committee”.
It added that the legislature has given an expansive meaning thoughtfully to the term ‘victim’ that means and includes 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. The term victim also includes his/ her guardian or legal heir.
It was clarified by the bench that the term ‘victim’ and the terms complainant or informant’ are two different from one another and the “connotations in criminal jurisprudence”. It is not a mandate that the complainant/informant is also a ‘victim’. Even somebody who is a stranger of an act of crime can also be an ‘informant’, and on the same lines a ‘victim’ may not be the complainant or informant of an offence. On behalf of the victim even his/ her parents, guardians may report the offence.
The Supreme Court of India, in the case of Mallikarjun Kodagali (Dead) v. State of Karnataka & Ors, (2019) 2 SCC 752, dealt with the questions pertaining to a victim’s right to file an appeal U/s 372 of the CrPC, observed that there was need to give adequate representation to victims in criminal proceedings. The Court affirmed the victim’s right to file an appeal against an order of acquittal.
What High Court must consider while deciding a bail application?
The Supreme Court in Prasanta Kumar Sarkar v. Ashish Chatterjee & Anr., (2010) 14 SCC 496, stated that it is incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly complying the basic principles provided by the Supreme Court in plethora of cases.
The following factors be kept in mind while deciding the bail application:
- Is there any prima facie ground or a reasonable ground believing that the accused person had committed the offence;
- The Court must consider the nature and gravity of the accusation;
- The severity of punishment must be taken into account;
- If an accused is released on bail then the risk of absconding must be taken into consideration;
- The accused person’s character, behaviour, means, position and standing, must be considered;
- The Court must not ignore the likelihood of the offence being repeated;
- If bail is granted then reasonable apprehension of the witnesses being influenced by the released accused be kept in mind; and
- Danger to the justice being thwarted by grant of bail is an important point of consideration.
The Supreme Court bench being disappointed with the High Court noted that “We therefore, answer the question (on the right to be heard) …in the affirmative, and hold that in the present case, the ‘victims’ have been denied a fair and effective hearing at the time of granting bail to the Respondent Accused.”
Decision of the Supreme Court
The Supreme Court pointed out that the High Court has made
- Irrelevant considerations that has an impact on the impugned order of granting bail;
- The High Court has exceeded its jurisdiction as it touched upon the merits of the case;
- The victim’s right to participate in the proceedings is denied;
- The High Court has shown hurry in entertaining or granting bail to the accused.
The Apex Court of India while setting aside bail granted to the Accused by the Allahabad High Court stated that neither the right of an accused who was seeking bail was fulfilled as he got disconnected in between during the virtual hearing, nor the ‘victim’ or the State’s right was exercised properly to contest such a prayer. That considering the situation in hand the competing rights of the accused and victim/ State, the Supreme Court remand the matter(s) back to the High Court for fresh consideration.
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