Bail matters can be decided without hearing victim or complainant except in rape cases: Rajasthan High Court

The Rajasthan High Court recently ruled that a victim of a crime is not a necessary party to bail applications and such petitions can be decided without hearing the victim or complainant except in certain types of rape cases where the statute specifically makes presence of the informant mandatory [Pooja Gurjar & Others v. State of Rajasthan, Through Public Prosecutor]. .A division bench of Justice Arun Bhansali and Justice Pankaj Bhandari passed the decision while ruling on a criminal reference on whether the complainant or the first informant is a necessary party in bail applications under Sections 437, 438 and 439 (provisions for bail including pre-arrest bail) of Code of Criminal Procedure (CrPC). The High Court had issued a Standing Order on September 15 for directions to implead the victim as a party-respondent. The administrative direction was passed on the basis of observations made by a Single Judge in Nitoo Singh @ Nitu Singh Versus State of Rajasthan on August 8. Disagreeing with the decision, another single-judge had referred the matter for decision by a larger bench. Before the division bench, the lawyers representing the accused as well as the State said impleadment of the victim was not a requirement.Considering the contentions, the Court said a bare perusal of the provisions of bail under CrPC revealed that there is no requirement for impleading the victim as a party-respondent in bail applications. .However, the Court also noted that the statute provides for giving opportunity of hearing to victim in cases relating to some of Sections pertaining to offence of rape.“However, Section 439(1A) of Cr.P.C. was inserted by Act 22 of 2018 with effect from April 21, 2018, which makes presence of the informant or any person authorised by him obligatory at the time of hearing of the application for bail to the person under sub- section (3) of Section 376AB or Section 376DA or Section 376DB of the Indian Penal Code,” it added.The Court concluded that the effect of the Standing Order is that the accused persons shall be bound to remain in custody awaiting service of notices upon the victims, which is in direct conflict with their right to personal liberty guaranteed under Article 21 of the Constitution of India.It also noted that the definition of victim under the CrPC is sufficiently wide enough to include every person of the family of the victim. “It would be humongous task for the accused to serve notices upon all the victims and much greater task would be the determination of victims in a criminal case. Equally, troublesome would be the service on the victim without having their proper addresses,” the bench said..On the Supreme Court’s ruling in Jagjeet Singh & Ors. Versus Ashish Mishra & Monu & Anr where the top court said the victim has unbridled participatory rights in criminal proceedings, the High Court said it does not mean that the victim must replace or substitute the State as the prosecuting agency.It added that top court's ruling also means that the victim must be impleaded as a party to the proceedings so as to make the victim answerable in all aspects.The Court further opined that had there been an intention of the legislature, it would have been mentioned in unequivocal terms that impleadment of the victim was a necessary party in all the cases.It also observed the provision where Magistrate has been authorised to release persons under the age of 16 years or woman or sick or infirm, would become redundant and the court would have to wait for impleadment of victim as a party and then hear them.“In many non-bailable offences, accused, who is in custody is not knowing the name of the victim and in such cases, his bail application would be delayed, which would be violative of Article 21 of the Constitution of India as his custody would be dehors the provisions of the statute,” the Court added..The Court also took into account the provisions under which the State is under an obligation to prosecute the offenders and for this purpose, various public prosecutors are appointed. It is important to note that the above provisions recognize the State’s responsibility to uphold public order and ensure access to justice for all, especially in situations where the victim’s voice might otherwise go unheard, the Court remarked.Taking note that none of the members have supported the view taken by the single-judge whose observations led to issuance of the Standing Order, the bench said,“We are of the clear view that neither the statute directs impleadment of victim as a party-respondent nor the judgment of Jagjeet Singh & Ors. Versus Ashish Mishra & Monu & Anr. (supra) directs impleadment of victim as a necessary party. Jagjeet Singh & Ors. case only provides that the victim has a vested right to be heard at every stage of proceedings.”In this backdrop, the Court answered the reference in negative..[Read Judgment]