No requirement to make victim party to criminal proceedings in sexual offence cases: Delhi HC

New Delhi [India], April 19 : The Delhi High Court on Wednesday ruled that there is no requirement in law to make the victim a party, to any criminal proceedings, whether instituted by the state or by the accused.

The judgement was passed while considering a bail application of an accused in a rape case.

While considering the bail plea, the court asked whether the victim's right to be heard includes the obligation to be impleaded as a party-respondent in criminal proceedings.

Justice Anup Jairam Bhambh in the judgement said, "The right to be represented and be heard is distinct from the right or the obligation to be a party to criminal proceedings."

The bench also said that in accordance with the mandate of the Supreme Court in Jagjit Singh (supra), a victim now 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) Cr.P.C. mandates that a victim be heard in proceedings relating to bail, without, however, requiring that the victim be impleaded as a party to bail petitions, the bench said.

In light of the decision of the Supreme Court in Jagjit Singh case, 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 bench said.

Justice Bhambh pointed out that on one hand, there is the unbridled right of a victim to participate in all criminal proceedings relating to the crime and on the other hand, in so far as sexual offences are concerned, there is also a legal mandate that the victim's identity must be kept confidential.

"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," Justice Bhambh said.

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.

Justice Bhambh directed that the Registry must carefully scrutinise all filings relating to sexual offences, to ensure that the anonymity and confidentiality of the prosecutrix/victim/survivor is strictly maintained.

The high court said 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 September 24, 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 Registrar General has been directed to bring this judgment to the notice of the Chief Justice for framing appropriate practice directions or notice or notification, as may be deemed appropriate, in-line with the mandate with the directions of Nipun Saxena case.

The present petition was filed for seeking grant of regular bail in a case registered under section 376 (rape) of the Indian Penal Code (IPC) and under section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) at Police station Jaitpur, New Delhi.

On the first date of hearing on December 5, 2022, the court, while issuing notice on the petition, observed that the victim in the subject FIR had been made party-respondent in the matter, though her name and particulars had been anonymized or redacted.

The counsel for the petitioner said, this was done on the specific directions of the Registry of this court. A report in that regard was called from the Registrar (Filing).

Filing a report on January 5, 2023, the Registrar cited section 439(1A) Cr.P.C. and Practice Directions of September 24, 2019 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 purported compliance and towards implementation of the said statutory provision and the practice directions issued by this court.

In addition, the report also said "previously verbal directions were given by Hon'ble Court that the victim be arrayed in the Memo of Parties as respondent after hiding the identity of the victim..."

Reference was also made to an order made by another Bench where the appellant therein was granted permission to implead the complainant as party-respondent.

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.