Whether victim’s right to be heard includes the obligation to be impleaded as a party in criminal proceedings; Delhi High Court answers

Delhi High Court: A Single Judge Bench of Anup Jairam Bhambhani, J.* held that a sexual offence victim had unbridled participatory rights in all criminal proceedings in relation to which the person was a victim, but that was no reason to implead that victim as a party to any such proceedings, unless specifically provided in the statute.

Background

In the present case, the Court observed that on the first date of hearing while issuing notice on the petition, the victim in the FIR had been made party-respondent in the matter, though her name and particulars had been anonymized or redacted. Counsel for the petitioner submitted that the victim was made party in the matter on the specific directions of the Registry of this Court. A report in this regard was called from the Registrar, who cited Section 439(1A) of Criminal Procedure Code, 1973 (“CrPC”) and Practice Directions issued by the Delhi High Court, to say that the petitioner was directed to implead the victim as a party-respondent in the present matter in compliance and towards implementation of the said statutory provision and the practice directions issued by this Court. In addition, it was also submitted that “previously verbal directions were given by this Court that the victim/complainant be arrayed in the Memo of Parties as respondent after hiding the identity of the victim ”. The report also said that the same practice was being followed in all matters being filed in this Court relating to victims of sexual offences.

Analysis, Law, and Decision

The issue before this Court was “whether the victim's right to be heard includes the obligation to be impleaded as a party-respondent in criminal proceedings? ”.

In Jagjeet Singh v. Ashish Mishra alias Monu, (2022) 9 SCC 321 (“Jagjit Singh”), the Supreme Court had observed that “victims could not be expected to be sitting on the fence and watching the proceedings from afar and that victims had a legally vested right to be heard at every step post the occurrence of an offence. Further, they had an unbridled participatory right from the stage of investigation till the culmination of the proceedings in an appeal or revision ”.

The Court noticed that insofar the sexual offences were concerned, it was the statutory mandate in Section 228-A of Penal Code, 1860; Sections 23, 33(7) and 37 of the POCSO Act, 2012 and Sections 327(2) and 327(3) of the CrPC that identity of a victim must be kept confidential. Further, in Nipun Saxena v. Union of India, (2019) 2 SCC 703 (“Nipun Saxena”), the Supreme Court had emphasized the requirement of maintaining confidentiality of a victim of a sexual offence, by stating that “the intention of the lawmakers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future. Therefore, no person could print or publish the name of the victim or disclose any facts which could lead to the victim being identified and which should make her identity known to the public at large ”.

The Court opined that on one hand, there was the unbridled right of a victim to participate in all criminal proceedings relating to the crime; and on the other hand, as far as sexual offences were concerned, there was also a legal mandate that victim's identity must be kept confidential. The Court also stated that “the right to be represented and be heard was distinct from the right or the obligation to be a party to criminal proceedings ”. The Court observed that there might be times where a victim might not seek a hearing before the Court, and thus making a victim a party to the proceedings, mandating them to appear and defend various proceedings that the State or the accused might initiate, could cause additional hardship and agony to the victim.

In X v. State of Maharashtra, 2023 SCC OnLine SC 279, the Supreme Court had issued directions to its Registry to ensure that in sensitive matters, “if the name of the prosecutrix was revealed in the petition, the same was to be returned to the counsel for redacting the name before the matter was cleared for being placed before the Court for appropriate orders.”

The Court had drawn the following conclusions, which were restricted to criminal matters relating to or arising from or concerning sexual offences:

1. There was no requirement in law to implead the victim, that is, make the victim a party, to any criminal proceedings, whether instituted by the State or by the accused.

2. In accordance with the mandate of the Supreme Court in Jagjit Singh, a victim had unbridled participatory rights in all criminal proceedings in relation to which the person was a victim, but that in itself was no reason to implead a victim as a party to any such proceedings, unless otherwise specifically so provided in the statute and Section 439(1A) of CrPC mandated that a victim be heard in proceedings relating to bail, without however requiring that the victim be impleaded as a party to bail petitions. Moreover, Section 439(1A) of CrPC must now be expanded to include the victim's right to be heard even in petitions where an accused sought anticipatory bail and a convict sought suspension of sentence, parole, furlough, or other such interim relief.

The Court further issued the following directions:

1. The Registry must carefully scrutinize all filings relating to sexual offences, to ensure that the anonymity and confidentiality of the prosecutrix/victim/survivor was strictly maintained.

2. To maintain confidentiality, the following must be done:

   1. Name, parentage, address, social media credentials and photographs of the prosecutrix/victim/survivor must not be disclosed in the filings made in Court, including in the memo of parties. The Registry must ensure that the identifying particulars do not get disclosed in the Court’s cause-list.

   2. Name, parentage, and address of family members of the prosecutrix/victim/survivor, through whom the prosecutrix/victim/survivor could be identified, must not be disclosed in the filings, including in the memo of parties, even if they were accused in the case, since this might indirectly lead to the identification of the prosecutrix/victim/ survivor. Further, 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.

   3. If the identity credentials of a prosecutrix/victim/survivor were disclosed in the memo of parties or anywhere else in the filings, such filings must be returned by the Registry to the counsel who had filed the same, to undertake requisite redactions, before the filings were accepted.

   4. All service to be affected upon the prosecutrix/victim/survivor should only be done through the Investigating Officer in accordance with Practice Directions dated 24-9-2019 and not through the process serving agency, though a copy of the petition or application must be served upon the prosecutrix/victim/survivor. Further, the Investigating Officer must remain in plain clothes to avoid any unwarranted attention and must also inform the prosecutrix/victim/survivor that they had the right to free legal aid/representation in accordance with the mandate of the Supreme Court in Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14.

   5. If the parties wished to cite in Court any identifying particulars of the prosecutrix/victim/ survivor, including photographs or social media communications etc., such party might bring the same to Court in ‘sealed cover'; or file the same in ‘sealed cover' or in a ‘pass-code locked' electronic folder and share the pass-code only with the concerned Court Master.

3. The directions were not exhaustive and at the stage of scrutiny, the Registry was expected to apply its mind, with the intent of applying the directions of the Supreme Court in Nipun Saxena case.

4. The Registrar General was 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, in-line with the directions of Nipun Saxena case.

The Court further expressed its appreciation for the invaluable assistance by Rebecca M. John, Senior Counsel as Amicus Curiae. The Court disposed of the matter.

[Saleem v. State (NCT of Delhi), 2023 SCC OnLine Del 2190, decided on 19-4-2023]

Advocates who appeared in this case :

For the Petitioner: Rebecca M. John, Senior Advocate (Amicus Curiae); Sudarshan Rajan, Hitain Bajaj, Rohit Bhardwaj, Samreen, Md. Qamar Ali, Ramesh Rawat, Mahesh Kumar, Praavita Kashyap and Anushka Baruah Advocates.

For the respondents: Tarang Srivastava, APP; Nitin Saluja, Ankur Sinha and Saahil Mongia, Advocates

*Judgment authored by: Justice Anup Jairam Bhambhani