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Our Heritage Journal ISSN 0474-9030 is a multidisciplinary journal for research publication. Urgent Notice to authors: Note: Removed from UGC-CARE List on 27th Feb 2020. Title of the document

Victim Has A Right To Assist The Court In A Trial Before The Magistrate

It is most refreshing to note that in a latest, landmark and laudable judgment titled Amir Hamza Shaikh & Ors Vs State of Maharashtra & Anr in Criminal Appeal No. 1217 of 2019 (Arising out of SLP (Criminal) No. 3202 of 2019) delivered most recently on August 7, 2019 has minced no words in laying down unequivocally the time tested legal position that though the Magistrate is not bound to grant permission to a victim to conduct prosecution at the mere asking but the victim has a right to assist the Court in a trial before the Magistrate. Very rightly so! How can a victim be denied this basic legal right?

To start with, this noteworthy judgment authored by Justice Hemant Gupta for himself and Justice L Nageswara Rao of the Supreme Court sets the ball rolling after granting leave in para 1 by observing in para 2 that, “The challenge in the present appeal is to an order passed by the High Court of judicature at Bombay on November 27, 2018 whereby an order passed by the Magistrate declining permission to respondent No. 2 to prosecute the appellants-accused for the offences punishable under Sections 498A, 406 read with Section 34 of Indian Penal Code, 1860 (for short, ‘IPC’), was allowed.”

As things stood, it is then unfolded in para 3 that, “The respondent No. 2 had sought permission to conduct prosecution in terms of Section 302 of the Code of Criminal Procedure, 1973 (for short, ‘Code’) for the aforesaid offences. The learned Magistrate declined permission without giving any reason but the High Court considered the judgments on the subject and granted permission to conduct prosecution only for the reason that the application has been made by an aggrieved party.”

To say the least, para 4 then states that, “Learned counsel for the appellants argued that the High Court is not required to give permission to prosecute mechanically only for the reason that such permission is sought by an aggrieved party. It is contended that the prosecution is to be conducted by a Public Prosecutor who is an officer of the Court and required to assist the Court to do justice rather than to be vindictive and take side with any of the parties. If the party is allowed to proceed to take over the investigation, the avowed object of fairness in the criminal justice dispensation system shall be shaken.”

More significantly, it is then very rightly pointed out in para 11 that, “In Mallikarjun Kodagali (Dead) represented through LRs v. State of Karnataka & Ors. (2019) 2 SCC 752, three Judge Bench of this Court considered the victim’s right to file an appeal in terms of proviso to Section 372 inserted by Central Act No. 5 of 2009 w.e.f. December 31, 2009. This Court considered 154th Report of the Law Commission of India submitted on August 14, 1996; the Report of the Committee on Reforms of Criminal Justice System commonly known as the Report of the Justice Malimath Committee; Draft National Policy on Criminal Justice of July 2007 known as the Professor Madhava Menon Committee and 221st Report of the Law Commission of India, April, 2009, and observed as under:

‘5. Parliament also has been proactive in recognizing the rights of victims of an offence. One such recognition is through the provisions of Chapter XXI-A CrPC which deals with plea bargaining. Parliament has recognised the rights of a victim to participate in a mutually satisfactory disposition of the case. This is a great leap forward in the recognition of the right of a victim to participate in the proceedings of a non-compoundable case. Similarly, Parliament has amended CrPC introducing the right of appeal to the victim of an offence, in certain circumstances. The present appeals deal with this right incorporated in the proviso to Section 372 CrPC.

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8. The rights of victims, and indeed victimology, is an evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than stand still or worse, take a step backward. A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard.’”

Equally significant is what is then pointed out in para 12 which envisages that, “The Court dealt with Justice Malimath Committee in the following manner:

‘16. Thereafter, in the substantive Chapter on Justice to Victims, it is noted that victims of crime, in many jurisdictions, have the right to participate in the proceedings and to receive compensation for injury suffered. It was noted as follows:

‘6.3. Basically two types of rights are recognised in many jurisdictions, particularly in continental countries in respect of victims of crime. They are, firstly, the victims’s right to participate in criminal proceedings (right to be impleaded, right to know, right to be heard and right to assist the court in the pursuit of truth) and secondly, the right to seek and receive compensation from the criminal court for injuries suffered as well as appropriate interim reliefs in the course of proceedings’.’”

What’s more, it is then postulated in para 13 that, “In J.K. International, it has been held that if the cause of justice would be better served by granting such permission, the Magistrate’s court would generally grant such permission. An aggrieved private person is not altogether eclipsed from the scenario when the criminal court take cognizance of the offences based on the report submitted by the police.”

Furthermore, it is then illustrated in para 14 that, “In Mallikarjun Kodagali, this Court approved the Justice Malimath Committee, wherein the victim’s right to participate in the criminal proceedings which includes right to be impleaded, right to know, right to be heard and right to assist the court in the pursuit of truth had been recognised.”

In essence, it is then pointed out most importantly in para 15 that, “In view of such principles laid down, we find that though the Magistrate is not bound to grant permission at the mere asking but the victim has a right to assist the Court in a trial before the Magistrate. The Magistrate may consider as to whether the victim is in a position to assist the Court and as to whether such complexities which cannot be handled by the victim. On satisfaction of such facts, the Magistrate would be well within its jurisdiction to grant permission to the victim to take over the inquiry of the pendency before the Magistrate.”

Finally and perhaps most crucially, it is then held in the last para 16 that, “We find that the High Court has granted permission to the complainant to prosecute the trial without examining the parameters laid down hereinabove. Therefore, we set aside the order passed by the High Court and that of the Magistrate. The matter is remitted to the Magistrate to consider as to whether the complainant should be granted permission to prosecute the offences under Sections 498-A, 406 read with Section 34 IPC. The appeal is allowed.”

On a concluding note, it may well be said that the Supreme Court Bench comprising of Justice Hemant Gupta and Justice L Nageswara Rao have laid down most unambiguously, unanimously and uprightly that the victim has the right to assist the Court in a trial before the Magistrate. It has very aptly cited the relevant case laws also along with the various reports of the Law Commission of India along with report of other Committee headed by eminent experts in legal field like Justice Malimath and Professor Madhava Menon! Now no doubt remains on this!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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