The bench of Justices AS Bopanna and Hima Kohli recently held that during the hearing of bail application the court shall hear the prosecutrix when an application for intervention is filed, else it would create a miscarriage of justice.

The Division bench held in the decision that, "when a similar application for intervention40 was moved by the appellant/prosecutrix before the High Court in the anticipatory bail application moved by the respondent No.2/accused, it appears that heed was not paid to the pleas taken by her though her counsel’s presence does find mention in the order sheet. We are constrained to note that such an approach tantamounts to failure to recognize the right of the prosecutrix to participate in the criminal proceedings that would include a right to oppose the application for anticipatory bail moved by the accused. The appellant/prosecutrix having been denied a meaningful hearing when the first impugned order of anticipatory bail granted in favour of the respondent No. 2/accused was confirmed by the second impugned order, is an additional factor that has prevailed with this Court to interfere in the impugned orders."

While setting aside the order of the High Court which granted anticipatory bail to the accused, the Supreme Court held "that It must be remembered that in the present case, the machinery of criminal justice has been set into motion by none other than the appellant/prosecutrix herself."

The Supreme Court while relying on the judgment of Jagjeet Singh And Others v. Ashish Mishra Alias Monu and Another reported in (2022) 9 SCC 321 wherein speaking for the Bench, Justice Suryakant made the following pertinent observations relating to the victim’s right to be heard and alluding to the recommendations made by the Law Commission of India in its 154th Report that highlighted “the right of the victim or his/her legal representative to be impleaded as a party in every criminal proceedings where the charges are punishable with 7 years’ imprisonment or more”

The Court also emphasized on the fact that the identity of the prosecutrix is required to be hidden at any cost and passed the following direction to the Registry:-

"Having regard to the sensitivity of the allegations levelled in the matter and the nature of the offence complained of, it is imperative to protect the identity of the appellant/prosecutrix. She has been identified as “Ms. X” in these proceedings. In the instant case, the Registry is directed to take immediate steps to redact the name of the appellant/prosecutrix from the records. Henceforth, the Registry shall ensure that in sensitive matters like the present one, if the name of the prosecutrix is revealed in the petition, the same is returned to the learned counsel for redacting the name before the matter is cleared for being placed before the Court for appropriate orders."

Case Details:-

CRIMINAL APPEALS NO. 822-823 OF 2023
MS. X ….. APPELLANT
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER ….. RESPONDENTS

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