Woman/child victim is not a necessary party to a criminal appeal against conviction: Calcutta High Court

The Calcutta High Court has held that a woman or child victim of an offence is not a necessary party to an appeal filed against conviction [Ganesh Das & Anr v. State of West Bengal]..A Division Bench of Chief Justice Thottathil B Radhakrishnan and Justice Aniruddha Roy held that no such appeal would be defective in the absence of impleadment of the victim..The Court also called for strict adherence to the Supreme Court's directions in Nipun Saxena v. Union of India, so that the identity and privacy of woman and child victims are protected..An order was passed to this effect during the hearing of criminal appeals filed against conviction for offences under the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act, 2012. In both the cases, the appeals were rendered defective as the victims were not made parties to the appeal..After perusing a number of apex court judgments and provisions of law, the Court held the following:i) The victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the I.P.C. or POCSO Act or any other penal provision which will apply in relation to offences affecting human body against any “woman” and/or “child”, both those expressions being understood in the context of the respective legislation which deals with such offences.ii) No such appeal would be defective in the absence of impleadment of the victim.iii) In cases where, over and above the assistance of the Public Prosecutor representing the State, the appellate court deems it necessary to provide further assistance to secure the interest of the victim through legal aid, the HCLSC or the DLSA concerned may be required to provide assistance through an empanelled or other advocate as may be decided by the HCLSC or the DLSA concerned. However, even in such cases, it shall be insisted by the Court that the principles relating to protection of dignity and privacy and modality of ensuring those values, as delineated above, are scrupulously adhered to.iv) Appeals by victims would be governed by the directions in Nipun Saxena; however, that there need not be any doubt as to how the victim would be described. It would suffice that the cause-title of such an appeal would show that the appellant is the victim in the criminal case identified by its number, the court below and/or the police station. This will insulate the victim from being subjected to disclosure of identity of that person..Seeing no requirement for impleadment of the victim in such appeals, the Court held,"Trial, conviction and sentence are matters primarily between the accused person and the State. The statutory provisions for institution of the appeal and the hearing thereof do not, in their terms, enjoin impleadment of the victim in these appeals.".The Court also highlighted the importance and objective of the POCSO Act which was brought into force to protect the dignity of such victims..While placing reliance on the decision in Nipun Saxena, the Court noted,"The need is to follow protective governance as far as the privacy of the victims are concerned. That has to be ensured in letter and spirit by cohesive and comprehensive effectuation of the seminal twin doctrines of privacy and dignity which are inexcusable components of the fundamental right to life guaranteed under Article 21 of Constitution of India.".Referring to the Directive Principles of State Policy under Articles 38 and 39 of the Constitution, the Court stated,"Investigation, prosecution and adjudication are carried out through institutions which are essentially institutions of national life. Judiciary is an institution of national life. Therefore, the protective canopy over the children against exploitation and the constitutional vision, value and command to ensure their freedom and dignity, including privacy, are among the principles which ought to guide the judicial institutions as well.".The Court further shone a light on the duty of legal services authorities to render assistance to victims of such offences."While it is definitely the duty of the State and the Public Prosecutor to comprehensively deal with all aspects of a criminal appeal against conviction; in particular cases, on the basis of situation and need, the Legal Services Authority concerned can also represent and protect the interest of the victim even without the impleadment of the victim in the array of parties, thereby synchronizing the 20 opportunity to contest and the need to preserve the privacy.".Advocate Sourav Chatterjee assisted the court as Amicus Curiae, while Advocate Shiv Shankar Banerjee represented the West Bengal State Legal Services Authority. Additional Public Prosecutor Rana Mukherjee appeared for the State, while Senior Advocate Shekhar Basu addressed the Court by way of advisory and assisting intervention..[Read order]