While dealing with a bail application filed under section 438 Cr. P.C, the single-headed bench of the Rajasthan High Court raised a point about whether the victim should mandatorily be impleaded as a party respondent or not.

The said matter was heard before Justice Anil Kumar Upman

Case Brief -

In the said matter, the petitioners were apprehending arrest in connection with an FIR filed at Police Station Masuda District Ajmer, for offences under sections 323, 341, 354, and 504 IPC.

The counsel for the petitioners submitted that all the petitioners were female and had nothing to do with the alleged case. He further stated that all of them were wrongly implicated in the ongoing case. The counsel also stated that cross-cases have been registered between the parties and that the petitioners are also ready to take part in the investigation process.

The court ordered that the petitioners shall not be arrested in connection with the FIR lodged and also directed the learned public prosecutor to inform the victim/injured about the bail application.

However, the learned public prosecutor brought to the court's attention a standing order dated 15.09.23 whereby the court stated that it was enjoined upon all the concerned that in the future, in all matters, arising out of a criminal act committed against the victim as defined under Section 2(wa) of Cr.P.C. the victim be necessarily impleaded as party respondent.

The abovementioned order dated 08.08.2023 was passed in relation to a bail application, Nitoo Singh @ nitu Singh Vs. State of Rajasthan, where it was stated that the victim is a necessary party in all the bail matters arising out of criminal acts committed against the victim.

The concerned observation was made while the learned coordinate bench relied upon the Hon'ble Supreme Court judgment, Jagjeet Singh & Ors. Vs. Ashish Mishra @ Monu & Anr. reported in (2022). The court in the case gave emphasis on the victim's right to be heard at every step post the occurrence of an offence.

Justice Upman stated that “In agreement with the observation of learned Coordinate Bench that right of a victim to be heard at every stage of the criminal proceedings, including at the time of grant or cancellation of bail whether it be under Sections 437 or 438 or 439 Cr.P.C. is of utmost importance. The victim must be heard by the Court on his/her appearance either personally or through counsel.

Free legal assistance may also be provided to the victim/complainant if desired by them.   The assistance or the submissions offered by a victim would always be considered while dealing with a criminal case. He is the best person who can assist/brief the State Counsel so as to unveil the actual truth and, in no way this right of the victim can be taken away.”

He, however, stated his disagreement with the above observation and stated that there is a difference between important and necessary. While expressing his disagreement he referred to the Hon'ble Supreme Court judgment in U.P. Gram Panchayat Adhikari Sangh vs. Daya Ram Saroj reported in (2007) where it was observed that “Judicial Discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by the judicial fraternity.”

He further expressed his disagreement and went on to mention that “I am of the considered view that the first informant/complainant/victim in proceedings seeking grant of bail under Sections 437, 438 or 439 Cr.P.C. neither can be considered as a necessary party nor a proper party. The victims are required to be impleaded as necessary parties in the cases where it is mandated by the provisions of the Statute. There is no provision in the Criminal Procedure Code that enables a third party to get himself impleaded in the proceedings before the Criminal Court. Only Section 301 Cr.P.C. enables private persons to assist the prosecution and to submit written arguments with the leave of the Court. In all prosecutions, the State is the prosecutor and a proceeding is always treated as a proceeding between the State and the accused. Once the offence is committed, it is not against the individual but against the entire society. This Court cannot lose sight of the practical aspect of this issue. In a case where there are many victims, who are to be served in pursuance of the standing order, there would be great difficulty for the State Machinery to get the services affected upon them. The possibility cannot be ruled out that to cause a delay in deciding the bail application, the victim may avoid service of the notices.”

Therefore, he stated in the order that this issue of necessary impleadment of complainant/victim as party respondent in all the bail applications whether it be under Section 437, 438, or 439 Cr.P.C., should be decided by a Division Bench or by a Larger Bench.

The order further directed the Registrar (Judicial), Rajasthan High Court, Jaipur Bench to place the matter before Hon'ble the Chief Justice for constituting an appropriate Bench to decide the following question: -

"Whether in all the bail applications under Sections 437, 438 or 439 Cr.P.C., the complainant/first informant/victim defined under Section 2(wa) of the Cr.P.C. is necessary party and necessarily be impleaded as party respondent?”

Case: Pooja Gurjar and Ors Vs State of Rajasthan, S.B. Criminal Miscellaneous Bail Application No. 11910/2023a