The Conundrum of Victims’ Rights in Indian Criminal Jurisprudence: Analysing the (Dis)-Position in Jagjeet Singh v. Ashish Mishra
In the recent judgement of the Supreme Court in the Lakhimpuri Kheri Violence Case (Jagjeet Singh &Ors. v. Ashish Mishra &Anr.), the honorable Apex Court has reiterated the rights of the victim to be heard at every stage of a criminal proceeding including trial/appeal/revision. This is a landmark development in victim jurisprudence of criminal law which hitherto have been largely prosecution and State centric. However, a careful scrutiny of the judgement reveals the quandary it has created by unsettling a previous position per incuriam and the difference of approach towards victim participation in a Sessions and Magistrate trial. The article endeavours to examine these issues in detail.
The much-awaited change in the victim jurisprudence in India happened with insertion of Section 2(WA) of the Code of Criminal Procedure in 2009 which, for the first time, recognized the rights of the victims while differentiating a complainant/ informant from a victim. The Code of Criminal Procedure (Amendment) Act, 2009 introduced substantial changes in the victims’ rights and roles under Criminal Procedure Code, by including such provisions that enable their active participation in Criminal proceedings.
Legislative Evolution of Victim Jurisprudence and the Present Statutory Limitation
Regardless of the intent of the amendment, the active role of a victim in impending trials was still a distant dream. Section 301 and Section 302 of Cr.P.C are provided under Chapter XXIV of the Criminal Procedure Code, which contain general provisions of conduct of inquiries and trials. Section 301 deals with appearance of public prosecutor in criminal trial whereas Section 302 deals with permission to conduct the prosecution. However, the scope of both the sections is different and the role that a private party or his pleader can play is of differing degrees. Under Section 301(2) a private party can plead through his pleader, however the pleader so instructed can only act under the directions of the Public Prosecutor, with the permission of the Court and can only submit written arguments after the evidence is closed in the case. Section 302 on the other hand deals with the procedure during a Magistrate trial, wherein under section 302(2) any person can conduct the prosecution personally or through a pleader.
This clearly shows the difference of approach in both the sections as under 301 the right to engage a private pleader by the victim is restricted due to the statutory limitation prescribed in the section itself. However, the absence of any such statutory limitation under Section 302 (2) clearly shows the intent of legislature as - in case of a Magistrate trial, a victim can engage his own pleader and is not required to act under the instructions of the public prosecutor. Under section 301(2) the role of a pleader is to act under the instructions of the Public Prosecutor which, in essence, defeats the active role that can be played by the victim,the amendment for which was passed to provide more active participation of the victims in criminal proceedings. It is with this objective that the role of the victims should be understood and their active participation in the proceedings must be encouraged.
Judicial Evolution of Victim Jurisprudence in India
The Apex Court placed reliance on the case of Shiv Kumar v. Hukam Chand and J.K. International, holding that under Section 301(2), in sessions trial, the role of victim/pleader is to assist the public prosecutor and to submit written submission subject to the liberty of the Court. However, in Section 302 which deals with magistrate trial, a private person can conduct the trial through his pleader by making an appropriate application to the concerned court. This distinction between the role of victim in a Sessions trial and a Magistrate trial is neither intended nor appreciable considering the change in jurisprudence of the victims’ role in criminal proceedings.
Punjab and Haryana High Court in the case of Kuldip Singh v. State of Haryana[i]while dealing with the question of an application made under Section 301(2) to the Additional Sessions Judge, the High Court allowed the victim to make written submission to the trial court after the conclusion of evidence. This view is also consistent with the objective of the Criminal Procedure Amendment 2009 where the emphasis was to ensure effective and active participation of the victim in criminal proceedings.
However, the right of victim/third party to join criminal proceedings as a defacto complainant is still left to the discretion of the Courts. The Apex Court in a five judge Bench decision of P.S.R. Sadhanantham v. Arunachalam and Ors[ii], held that third-party intervention can even be allowed in suitable cases and not necessarily only the de facto victim, but also their relatives can be allowed.
This view was reiterated again by the apex court in Amanullah and Anr. v. State of Bihar[iii]. However, in the case of third-party intervention the courts have exercised caution and thus, in a suitable case a third party can intervene too. This assumes significance in cases of huge financial frauds/scams where the victims are in thousands and the investigation is initiated suo-moto by the investigation agency where victims are not complainants. Thus, in a suitable case even a third-party intervention can be allowed by the courts.
The apex court in Mallikarjun Kodagali (Dead) v. State of Karnataka[iv] affirmed the right of the victim to file an appeal under Section 372 of Cr.P.C when the trial has concluded in acquittal of the accused. This judgement gave an umbrella right to challenge the order of acquittal by the victim, irrespective whether prosecution wishes to make an appeal or not. This is a landmark judgement considering the victim is not at the mercy of the prosecution to pursue the appeal against the order of acquittal. The judgement also further approved the considerations drawn by the Justice Malimath Committee, wherein the rights of the victim to participate, to implead, to know, to be heard and to assist the court were recognised.
The Andhra Pradesh High Court in the case of Delta Car Private Limited v. Sanjiv Shah[v]were to decide upon the question whether in an anticipatory bail proceeding, the requited victim should be heard or not. The Court, read section 24(8) Cr.P.C with section 482 of Cr.P.C and held that the victim can be heard while deciding upon the anticipatory bail plea of the accused. It is also pertinent to mention that the proviso under Section 24(8) was not present originally, was however added by the Criminal Procedure Amendment Act 2009, which provides that the Court may permit the victim to engage an advocate of their choice.
The Honorable Apex Court in Jagjeet Singh & Ors. v. Ashish Mishra and Anr. (“Ashish Mishra”) based its reasoning on the Mallikarjun Kodagali (Dead) v. State of Karnataka, and observed as follows:
“24. A ‘victim’ within the meaning of Cr.P.C. cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/she has a legally vested right to be heard at every step post the occurrence of an offence. Such a ‘victim’ has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that ‘victim’ and ‘complainant/informant’ are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a ‘victim’, for even a stranger to the act of crime can be an ‘informant’, and similarly, a ‘victim’ need not be the complainant or informant of a felony”.
The above observation of the apex court recognises the rights of the victim as absolute and independent from the rights of the State, further clarifying that the rights of the victim are not subservient to that of State.
However, this judgement creates a conundrum for the rights of the victim during the trial due to the presence of Section 301(2) and Section 302 Cr.P.C and supporting judgements which restricts the right of victim as mere assistance to the public prosecutor in a sessions trial and as that of an active participation in case of magistrate trial. Now, the position that emerges from the analysis of the above precedents is, in criminal trial the role of a victim can be active or passive depending upon the category of trial instead of being an absolute right in itself.
Creating a Legal Conundrum: The Standing in Dhariwal Industries Judgement
The Apex Court missed a huge opportunity in the Case of Dhariwal Industries Limited v. Kishore Wadhwani and Ors, (“Dhariwal Industries”) where a division bench of the Apex Court, while deciding the Scope of Section 301 (2) and Section 302, instead of giving primacy to the role of victim in criminal trial ended up giving primacy to the State and the prosecutor. The Court held that the right of a private individual to participate in the prosecution remains restricted and subject to the authority of the public prosecutor. The judgement further cemented the legal position in the conflict of addressing the bearing of a victim in the prosecution, by holding that under 302 Cr.P.C confers the power on a magistrate to grant permission to the complainant to conduct prosecution independently. For grant of which the complainant needs to file a written application to the magistrate so they can exercise jurisdiction and form the requisite opinion.
The Supreme Court created a legal conundrum by delivering the Ashish Mishra judgement per incuriam. In Hyder Consulting (UK) Ltd. v. State of Orissa, the Apex Court clarified the position on per incuriam judgements by holding if the Court has acted in ignorance of a previous decision of its own, the Court cannot be said to have ‘declared the law’ on the appropriate subject matter if a relevant position has not been duly considered by the Court in delivering the judgement.
Applying the legal doctrine of per incuriam, the position in the Ashish Mishra judgement ideally presents a position of conflict that needs to be resolved by the Supreme Court by amending the position set in Dhariwal Industries.
The granting rights to a victim to participate in a criminal proceeding is already a sensitive development, and precedential discord will only put the victim in hot water for their participation. The role of victim in trial is more important than any other proceedings due to the near finality of evidence. The presence witnesses who are more likely to be relied upon, rarely to be overturned, except on limited grounds such as unreliable material, non- reliance on statement of material witness etc. makes the presence of a victim’s perspective of the crime in the concluding case more critical.
While the judgement is precedented as a landmark development in the evolution of victim jurisprudence in India, the Apex Court could have used this opportunity to clarify the role of victims in criminal trial. A close analysis of the lacuna created by the judgement in terms of unsettling a previously secured position and not addressing the statutory limitation in describing the scope of victim participation in a trial present in 301 and 302 reveals that there is still a need to re-evaluate the disposition. There is a need to award victim absolute and uncontested primacy over the prosecution in criminal trial irrespective of its nature, due to the criticality of their perspective and suffering. Their participatory rights should not be subject to a precedential disregard or a statutory distinction as is the present legal standing.
Thus, we hold the Dhariwal Industries judgement must be reviewed by a larger bench of the Apex Court, specifically in the of the conflicting judgements in the Mallikarjun Kodagali case and the recent Ashish Mishra case.
* The article has been written by Adv. Mitul Jain, who is a practicing advocate, and a member at Mumbai Center for International Arbitration Advocate at Rajasthan High Court and Supreme Court India, assisted by Tanishq Gupta, Junior Editor at CCV, RGNUL*