Sexual offences victims have right to be heard, need not make them a party: Delhi HC

The HC was examining the question that does the victim’s right to be heard include the obligation to be impleaded as a party-respondent in criminal proceedings.

It further observed that as per the mandate of the Supreme Court’s decision in Jagjeet Singh & Ors v Ashish Mishra alias Monu & Anr, “A victim has unbridled participatory rights in all criminal proceedings in relation to which the person is a victim, but that in itself is no reason to implead a victim as a party to any such proceedings, unless otherwise specifically so provided in the statute.”

Section 439(1A) Criminal Procedure Code mandates that a victim be heard in proceedings relating to bail, without requiring that the victim be impleaded as a party to bail petitions, the court further noted.

“In light of the decision of the Supreme Court in Jagjeet Singh (supra), section 439(1A) CrPC 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,” Justice Bhambhani said.

To obviate any ambiguity, the HC said that though section 439(1A) CrPC makes the “presence of the informant obligatory at the time of hearing”, but what it mandates is “the right of the victim, whether through the informant or other authorised representative, to be effectively heard in the matter”. The court said that if necessary, legal-aid counsel may be appointed to represent 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 HC passed several directions including the direction to the HC Registry to carefully scrutinise all filings relating to sexual offences, to ensure that the anonymity and confidentiality of the victim is strictly maintained. To ensure this, the court said that name, parentage, address, social media credentials and photographs of the victim must not be disclosed in the filings made in court and that the registry should ensure that victim’s particulars do not get reflected in the cause-list of the court in any manner.

“Since redaction of the identifying particulars of the prosecutrix/victim/survivor from the FIR, chargesheet, proceedings before the trial court and other similar records, is the duty and obligation of the authorities/court that prepare such documents; and insofar as the proceedings before this court are concerned, making complete redaction in each of those documents may not be feasible, it is directed that the files/paper books/e-portfolio of matters relating to sexual offences filed in this court must not be provided to any person other than the parties to the litigation, to the prosecutrix/victim/survivor and their respective counsel, after due verification of the identity credentials of such persons,” the court said.

It said that the service of the petition in such matters shall be done through the investigation officer as per the 2019 with practice directions.

It directed the IOs in such matters to remain in plain clothes so as to avoid any “unwarranted attention” in affecting the service of the petition to the victim.

“Lastly, the directions issued above may be summarised by way of written instructions/note/notification by the Registrar General of this court; and be circulated to the principal district & sessions judges, Delhi, in their respective jurisdictions and to the Commissioner of Police, Delhi,” the court said.

In its judgment, the High Court referred to a 2022 decision of the Supreme Court in Jagjeet Singh & Ors v Ashish Mishra alias Monu & Anr observing that the SC had accorded specific recognition accorded to the rights of a victim, observing that “victims… cannot be expected to be sitting on the fence and watching the proceedings from afar”.

The HC further noted that the SC in its judgment had said that victims have “…a legally vested right to be heard at every step post the occurrence of an offence…” that they have “unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision” and that the mere presence of the state “does not tantamount to according a hearing to a victim of the crime”.

Senior Advocate Rebecca John was appointed as an amicus curiae to assist the court submitted that there is no requirement, either statutory or by way of any judicial pronouncement, that a victim must be made party-respondent to criminal proceedings. She, however, added that in certain cases, such as those involving sexual offences, issuance of notice to victims/complainants/informants and affording them a right to be heard is mandatory, but that does not amount to a requirement of impleading them as parties. She submitted that a requirement of impleading a victim as party-respondent is “not based in law”.

She, however, said that a possible advantage of impleadment, could be that the victim would then have knowledge of the contents of the petition, and would be able to contest the same more effectively. She also said that this benefit could also be given to the victim if the practice directions are tweaked to incorporate the requirement of serving a copy of the petition upon the victim.

On the anonymity of the victim’s identity, John said that if a victim is impleaded as a party to a matter, even if the name and other particulars are anonymised, there are high chances of “jigsaw identification” of the victim, wherein third persons may be able to put together the victim’s identity from various elements found in various parts of the filings.

On the role of the victim in criminal proceedings, the HC said that it varies with the context and stage of the criminal proceedings.

“In relation to bail proceedings, for instance, the victim may assist the court in clarifying relevant facts, such as any threats received by the victim or other witnesses, or the possibility of evidence tampering, or even flight risk. However, the victim would have no role in determining, say, the necessity of custodial interrogation, which would be the job of the investigating agency. To reiterate, the right to be represented and be heard is distinct from the right or the obligation to be a party to criminal proceedings. 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 HC said.