In a recent legal development, the Rajasthan High Court rendered a significant ruling on the requirement to include victims in bail applications under Sections 437, 438, or 439 of the Criminal Procedure Code (Cr.P.C.). Justices Pankaj Bhandari and Arun Bhansali delivered the judgment on December 19, 2023, settling a contentious matter that has triggered discussions within the legal community. The central issue addressed in the ruling was whether, in all bail applications under Sections 437, 438, or 439 Cr.P.C., the complainant/first informant/victim as defined under Section 2(wa) of the Cr.P.C. is obligatory and must be included as a party respondent.

The court's ruling was influenced by Standing Order No. 32/S.O./2023 issued on September 15, 2023, which mandated the inclusion of victims as party-respondents in criminal cases arising from acts against them as defined in Section 2(wa) of the Cr.P.C. This directive originated from a prior order dated August 8, 2023, in S.B. Criminal Miscellaneous Bail Application No. 9490/2023, titled Nitoo Singh @ Nitu Singh versus State of Rajasthan. However, a subsequent order on September 27, 2023, in Pooja Gurjar & Ors. versus State of Rajasthan: S.B. Criminal Miscellaneous Bail Application, contradicted the earlier decision. The court in this subsequent order noted that the informant/complainant/victim should not be deemed a necessary or proper party in bail proceedings under Sections 437, 438, or 439 of the Cr.P.C.

Numerous esteemed advocates, including Mr. Biri Singh Sinsinwar, Mr. A.K. Gupta, Mr. V.R. Bajwa, and others, submitted their written contentions, referencing pertinent legal precedents such as Jagjeet Singh & Ors. versus Ashish Mishra & Monu & Anr. (2022), Saleem versus the State of NCT of Delhi & Anr.: Bail Application 2022, and others. These advocates contended that the Supreme Court's ruling in Jagjeet Singh (supra) did not expressly require the inclusion of victims as obligatory parties in all instances. They underscored that bail should be considered a general principle, and unnecessary delays resulting from notifying victims would contravene the principles enshrined in Article 21 of the Constitution.

In its comprehensive judgment, the court underscored the absence of any legal provision mandating the inclusion of victims in bail applications. The court particularly highlighted the introduction of Section 439(1A) of the Cr.P.C. in 2018, which necessitates the presence of the informant in specific cases. This amendment was interpreted as indicative of the legislature's intent not to make victims obligatory parties in all circumstances. Quoting the judgment, the Judges remarked, "A careful examination of the aforementioned provisions reveals that there is no stipulation in the statute requiring the victim to be included as a party-respondent in bail applications." The court further stressed the principle of "casus omissus," asserting, "If the Legislature had intended that the victim must be heard as a necessary party and must be included as a party-respondent, such a provision could have been explicitly incorporated into the statute."

The judgment emphasized the State's obligation to prosecute offenders, highlighting the significance of appointing Special Public Prosecutors as a manifestation of the State's active involvement in criminal proceedings. The court stressed the importance of striking a balance between the rights of the victim and the accused, ensuring a fair trial for both parties. In summary, the Rajasthan High Court's decision offers clarity regarding the involvement of victims in bail proceedings, affirming that the inclusion of victims as party-respondents is not a universal requirement.

Case: Pooja Gurjar Vs State Of Rajasthan,

D.B. Criminal Reference No. 1/20.