A victim has unbridled participatory rights from the stage of investigation till the culmination of the proceedings: SC

ON Monday, a Supreme Court bench led by the Chief Justice of India N.V. Ramana and comprising Justices Surya Kant and Hima Kohli, in Jagjeet Singh & Ors. vs. Ashish Mishra @Monu & Ors., held that the 'victim' defined under Section 2(wa) the Code of Criminal Procedure [CrPC] has unbridled participatory rights from the stage of investigation till the culmination of the proceedings and the presence of the state is not tantamount to according a hearing to a victim of the crime.

The court was hearing a Special Leave Petition filed by the victims of the Lakhimpur Kheri violence from last year.

The accused-respondent, Ashish Mishra, had approached the Allahabad High Court to grant him regular bail, which was approved mainly on the ground that an inquest and injury reports of the victims did not reveal any firearm injury and thus, the violence was due to an "accident by hitting the vehicle", on February 10. However, during the course of the online bail proceedings, the victims were disconnected. Their application for re-hearing of the bail application was also rejected by the court.

The Supreme Court's instant judgment observed: "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."

The Supreme Court explained that criminal law had long been viewed on a "dimensional plane" wherein courts were required to adjudicate between the accused and the State. It observed: "The 'victim' — the de facto sufferer of a crime had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator. However, with the recognition that the ethos of criminal justice dispensation to prevent and punish 'crime' had surreptitiously turned its back on the 'victim', the jurisprudence with respect to the rights of victims to be heard and to participate in criminal proceedings began to positively evolve."

The court referred to 154th Report of the Law Commission which made certain radical recommendations on the aspect of compensatory justice to a victim, and the 2003 Report of the Committee on Reforms of Criminal Justice System which recommended that the victims or their legal representatives "be impleaded as a party in every criminal proceedings where the charges punishable within seven years' imprisonment or more." Finally, the Code of Criminal Procedure (Amendment) Act, 2008, inserted the definition of victim under the CrPC, which also ensured various rights of the victim at different stages of trial, the court said, tracing the genesis of the present provision.

The court thus observed in Paragraph 23 of its judgment: "It cannot be gainsaid that the right of a victim under the amended Cr.P.C. are substantive, enforceable, and are another facet of human rights. The victim's right, therefore, cannot be termed or construed restrictively like a brutum fulmen (that is, an ineffective legal judgment). We reiterate that these rights are totally independent, incomparable, and are not accessory or auxiliary to those of the State under the Cr.P.C."

The bench then expressed disappointment in the manner in which the Allahabad High Court had failed to acknowledge the rights of the victim and said, "…in the present case, the 'victims' have been denied a fair and effective hearing at the time of granting bail to the Respondent-Accused"

It further found that the high court failed to take into consideration relevant aspects such as the nature and gravity of offence, severity of punishment in the event of conviction, circumstances which are peculiar to the accused or the victims, the likelihood of the accused fleeing or tampering with the evidence or the witnesses, and the impact that his release may have on the trial and the society at large and thereby, "adopted a myopic view of the evidence on the record" while exercising the discretion in granting bail.

Setting aside the bail granted to Mishra by the high court, the Supreme Court observed: "This Court is tasked with ensuring that neither the right of an accused to seek bail pending trial is expropriated, nor the 'victim' or the State are denuded of their right to oppose such a prayer. In a situation like this, and with a view to balance the competing rights, this Court has been invariably remanding the matter(s) back to the High Court for a fresh consideration." while relying on its judgment in  Union of India vs. K.A. Najeeb (2021).