Survivor of sexual offence should be heard but no obligation in law to make her a party to proceedings: Delhi High Court

The Delhi High Court Wednesday held that though a survivor of sexual offence has the right to be heard in every criminal proceeding, there is no obligation to make such person a party to the criminal proceedings instituted either by the State or the accused..Justice Anup Jairam Bhambhani noted that as per the mandate of the Supreme Court judgment in Jagjeet Singh & Ors vs. Ashish Mishra alias Monu & Anr, a survivor now has unbridled participatory rights in all criminal proceedings in relation to which the person is a victim.This would mean that the survivor has to be heard. However, that is no reason to implead a victim as a party to any such proceedings unless specifically provided in the statute, the Court said."There is no requirement in law to implead the victim, that is to say, to make the victim a party, to any criminal proceedings, whether instituted by the State or by the accused....," the Court said.It further said that considering the Jagjeet Singh decision, Section 439(1A) of the Code of Criminal Procedure must now be expanded to include the survivor’s right to be heard even in petitions where an accused seeks anticipatory bail.But there is no mandate to make the survivor a party to the proceedings, the Court underscored.“Section 439(1A) CrPC 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; In light of the decision of the Supreme Court in Jagjit Singh (supra), section 439(1A) CrPC. 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 Court said..Justice Bhambhani was dealing with a petition seeking regular bail in a case registered under Section 376 (rape) of the Indian Penal Code (IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012.On the first date of hearing, the Court had observed that the victim in the FIR had been made party-respondent in the matter, though her name and particulars had been anonymized or redacted.A report was filed by the Registrar (Filing) which said that the petitioner was directed to implead the victim as party in compliance with Section 439(1A) CrPC and practice directions dated September 24, 2019 issued by the Delhi High Court..After considering the case, the Court concluded that it is not mandatory to implead the victim of sexual offence as a party to the criminal proceedings..While holding so, the Court also passed a series of directions to its registry to ensure the anonymity confidentiality of the prosecutrix/victim/survivor.“The name, parentage, address, social media credentials and photographs of the prosecutrix/victim/survivor must not be disclosed in the filings made in court, including in the memo of parties… The Registry must ensure that such particulars do not get reflected in the cause-list of the court in any manner.”The Court directed that the files/paper-books/e-portfolio of matters relating to sexual offences field must not be provided to any person other than the parties to the litigation..It is further said that all service to be effected upon the prosecutrix/ victim/ survivor shall only be through the investigating officer and not through the process serving agency. In effecting service, the investigating officer must remain in ‘plain clothes’ so as to avoid any unwarranted attention, the court added.“If the parties wish to cite in court any identifying particulars of the prosecutrix/ victim/ survivor, including photographs or social media communications etc., such party may bring the same to court in ‘sealed cover’; or file the same in ‘sealed cover’ or in a ‘pass-code locked’ electronic folder and share the pass-code only with the concerned Court Master.”Finally, the Court said that these directions may be summarised in the form of a note or a notification by the Registrar General and be circulated to the Principal District & Sessions Judges and to the Commissioner of Police..Senior Advocate Rebecca John appeared as Amicus Curiae in the matter. She was assisted by advocates Praavita Kashyap and Anushka Baruah.Advocates Sudarshan Rajan, Hitain Bajaj, Rohit Bhardwaj, Samreen, Md. Qamar Ali, Ramesh Rawat and Mahesh Kuma appeared for the petitioner.Additional Public Prosecutor Tarang Srivastava appeared for the State.Advocates Nitin Saluja, Ankur Sinha and Saahil Mongia appeared for the prosecutrix. .[Read Order]