STAMP NUMBER (APPLICATION) NO. 2386 OF 2019.

10th July 2019

Petitioner Counsel: Mr. V. Amonkar
Respondent Counsel: Mr. S. R. Rivankar
Act Name: Indian Penal Code, 1860 Code of Criminal Procedure, 1973

HeadLine : Criminal P. C. (1973), S. 138 – Intervention of victim in anticipatory bail application is permissible only to extent of hearing victim in order to assist prosecution.

Section :
Section 143 Indian Penal Code, 1860 Section 147 Indian Penal Code, 1860 Section 341 Indian Penal Code, 1860 Section 326 Indian Penal Code, 1860 Section 307 Indian Penal Code, 1860 Section 149 Indian Penal Code, 1860 Section 302 Indian Penal Code, 1860 Section 41 Code of Criminal Procedure, 1973 Section 156 Code of Criminal Procedure, 1973 Section 157 Code of Criminal Procedure, 1973 Section 167 Code of Criminal Procedure, 1973 Section 357-A Code of Criminal Procedure, 1973 Section 372 Code of Criminal Procedure, 1973

Cases Cited :
Paras 5, 14: Sundeep Kumar Bafna Vs. State of Maharashtra and anr., {(2014) 16 SCC 623}
Para 8: Gajanan Babanrao Jadhav Vs. The State of Maharashtra & ors., Criminal Application No. 4820 and 4556 of 2013
Para 8: State of Bihar Vs. Ram Pandey, MANU/SC/0034/1957: AIR 1957 SC 389
Para 8: Vijay Vs. State of Maharashtra, MANU/MH/0034/1986 : 1988 (1) Bom.C.R. 77
Para 8: Tukaram Vs. State of Bihar, MANU/SC/0094/1965 : AIR 1966 SC 911
Para 8: State Vs. S.N. Bhaskaran, AIR 1993 SC 44
Para 8: Sasi Thomas Vs. State, (2000) 12 SCC 421
Para 9: Kashinath Jairan Shetye Vs. Ramakant Mahadev Sawant & Ors., 2013 ALL M.R. (Cri.) 861
Para 9: Ravindra Vs. State another, 2007 (1) Crimes 222
Para 9: Kashinath Jairan Shetye Vs. Ramakant Mahadev Sawant & Ors., MANU/MH/2353/2012; 2013 ALL M.R. (Cri.) 861
Para 10: Kashinath Jairan Shetye Vs. Ramakant Mahadev Sawant & ors., 2013 ALL M.R. (Cri). 861
Para 12, 14: Malikarjun Kodagali Vs. State of Karnataka and ors., (2019) 2 SCC 752
Para 13: Lalita Kumari Vs. State of UP, (2014) 2 SCC 1

JUDGEMENT

These five applications seeking intervention in application for anticipatory bail are filed by the victim in order to assist the prosecution in this case with relevant facts, before this Court.

2. The applicants herein have been booked under Sections 143, 147, 341, 326, 307 read with Section 149 of I.P.C. by Fatorda police station on 20.05.2019 at 15.50 hrs. at Borda, Margao, Goa.

3. Earlier, the anticipatory bail applications filed by the applicants before the Sessions court were withdrawn. The applicants thereafter preferred second applications for anticipatory bail filed before the Sessions Court, which were rejected.

4. Heard Mr. V. Amonkar, learned Counsel for the applicants and Mr. Arun Braz de Sa, learned Counsel for the intervenor.

5. Mr. Amonkar drew my attention to a judgment of the Hon'ble Apex Court in the case of Sundeep Kumar Bafna Vs. State of Maharashtra and anr., {(2014) 16 SCC 623}. My attention is drawn to para 32 of the judgment which reads thus:
“32. The upshot of this analysis is that no vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is given to him but he must always bear in mind that while the prosecution must remain being robust and comprehensive and effective it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all time remain in control of the prosecution and a counsel of a private party can only assist the Public Prosecutor in discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the trial so that his interests in the prosecution are not prejudiced or jeopardised. It seems to us that constant or even frequent interference in the prosecution should not be encouraged as it will have a deleterious impact on its impartiality. If the Magistrate or Sessions Judge harbours the opinion that the prosecution is likely to fail, prudence would prompt that the complainant or informant or aggrieved party be given an informal hearing. Reverting to the case in hand, we are of the opinion that the complainant or informant or aggrieved party who is himself an accomplished criminal lawyer and who has been represented before us by the erudite Senior Counsel, was not possessed of any vested right of being heard as it is manifestly evident that the Court has not formed any opinion adverse to the prosecution. Whether the accused is to be granted bail is a matter which can adequately be argued by the State Counsel. We have, however, granted a full hearing to Mr. Gopal Subramanium, Senior Advocate and have perused detailed written submissions since we are alive to the impact that our opinion would have on a multitude of criminal trials.”

6. The Hon'ble Supreme Court thus, observed that there is no vested right granted to the complainant or informant or aggrieved party to directly conduct the prosecution as it is the Public Prosecutor whose duty is to be in control of the prosecution and the private party can only assist the Public Prosecutor in discharge of its responsibility.

7. It is not a case where there is total bar to assist the prosecution even at the stage of conducting trial by private party. As a matter of fact, the learned Counsel has not drawn my attention to any part of the judgment by which the Hon'ble Supreme Court has mandated that even at the stage of hearing an application for anticipatory bail, the private party or complainant or even the victim is restrained from assisting the prosecution.

8. The learned Counsel has also placed reliance on a judgment of the Single Judge of this Court in the case of Gajanan Babanrao Jadhav Vs. The State of Maharashtra & ors., Criminal Application No. 4820 and 4556 of 2013. Para 17 to 20 of the said judgment reads thus:
“17. The aforesaid provisions also show that before appointment of Public Prosecutor, Additional Public Prosecutor or Assistant Public Prosecutor, scrutiny is expected by the authority and after the scrutiny, panel of counsels, who can be appointed as prosecutors for the State is required to be prepared. Minimum experience which a counsel needs to have for getting his name entered in the panel is also mentioned in the provision. These provisions cannot be given go-bye. If other person is allowed to conduct the prosecution on behalf of State, it will be giving go-bye to these provisions. Only exception is made and that can be found in section 302 of Cr.P.C. already quoted and for that also, the Court of Magistrate is expected to give reasons.
18. The role of Special Prosecutor/Public Prosecutor is to safeguard interest of both, complainant and accused. He represents both the State and the complainant. In discharged of duties, he is bound by law and professional ethics. He is officer of the Court and he is expected to employ only such means as are fair and legitimate. He is expected to apply mind independently. Such fairness cannot be expected from the counsel appointed by the private party. (referred case reported as MANU/SC/0034/1957: AIR 1957 SC 389 [State of Bihar Vs. Ram Pandey] and MANU/MH/0034/1986 : 1988 (1) Bom.C.R. 77 [Vijay Vs. State of Maharashtra].)
19. Criminal law is not to be used as an instrument of wrecking private vengeance by aggrieved party against a person who, according to private party, had caused injury to him. Barring few exceptions in criminal matters, the party who is treated as aggrieved, is the State, which is the custodian of social interests of community at large. From this angle also, no intervention is allowed. (referred the case reported as MANU/SC/0094/1965 : AIR 1966 SC 911 (Tukaram Vs. State of Bihar].)
20. The investigating agency is expected to be fair to both accused and complainant and it is the duty of the investigating agency to find out the truth. It has statutory duty/power to investigate. Even the Courts are to expected to interfere in these statutory powers. The Court is expected to presume that the investigating agency is acting fairly. Allowing intervention is one way allowing influencing investigating agency by private party/complainant. From this angle also, intervention cannot be allowed. (referred the provisions of sections 41, 156, 157 and 167 of Cr.P.C. and the cases reported as AIR 1993 SC 44 [State Vs. S.N. Bhaskaran) and (2000) 12 SCC 421 [Sasi Thomas Vs. State].)”

9. The learned Single Judge has also referred to a Division Bench Judgment of this Court in para 2 of the judgment in the case of Kashinath Jairan Shetye Vs. Ramakant Mahadev Sawant & Ors., 2013 ALL M.R. (Cri.) 861, which reads thus:-
“2. In the past, in another case reported as 2007 (1) Crimes 222 (Ravindra Vs. State) another Hon'ble Single Judge of this Court had observed that the intervention needs to be allowed and that can be done even in application filed for relief of bail. In the case reported as MANU/MH/2353/2012; 2013 ALL M.R. (Cri.) 861 [Kashinath Jairan Shetye Vs. Ramakant Mahadev Sawant & Ors.] the Division Bench of Panaji Bench of this Court has referred Poddar's case cited supra. The Division Bench was considering the application filed for cancellation of anticipatory bail. The Division Bench has made following observations:-
21. In the course of hearing, Mr. Pangam submitted that at times the disposal of anticipatory bail applications are delayed on account of prolix and/or irrelevant lengthy submissions made by the first informant/complainant appearing in person who is not well versed with the legal provisions, which also ultimately delay disposal of such applications. In our view, although the complainant/first informant is entitled to be heard in an anticipatory bail application filed by the accused his rights are not unfettered and cannot be construed as giving him liberty to make submissions for any length of time. In our view, the interest of justice would be served if the complainant/first informant is called upon to file his say, in writing containing facts and legal submissions pointing out as to why the anticipatory bail should not be granted to the accused. If such a course is adopted, the same would save valuable time of the Court. No doubt, the complainant/first informant is entitled to make oral submissions, but in the event the complainant/first informant files his say pointing out the material available with him against the accused/the applicant seeking relief, the Sessions Judge would be in a position to restrict the oral hearing to be given to the applicant/intervenor, having regard to the material placed by the investigating agency against the accused. Moreover, the accused would also be in a position to meet the case set up by the complainant/first informant. Therefore, although we are in respectful agreement with the view taken by the learned Single Judge in the case of Vina Poddar (supra), that the complainant/first informant is entitled to be heard in an application for anticipatory bail filed by the accused, the same has to be understood in the light of the observations made above, so that the disposal of the anticipatory bail application is not delayed, thereby causing no prejudice either to the applicant or to the investigating agency.”

10. The Division Bench of this Court in the case of Kashinath Jairan Shetye Vs. Ramakant Mahadev Sawant & ors., {2013 ALL M.R. (Cri). 861} has, inter alia, observed that the complainant/first informant is entitled to be heard in the application for anticipatory bail filed by the accused. The same has to be understood in the light of the observations made so that the disposal of the anticipatory bail is not delayed thereby causing no prejudice either to the applicant or investigating agency.

11. The learned Single Judge, has made a reference to the Larger Bench.

12. Be that as it may. On the other hand, the learned Counsel for the intervenor has pressed into service a latest judgment of the Hon'ble Supreme Court in the case of Malikarjun Kodagali Vs. State of Karnataka and ors., reported in (2019) 2 SCC 752. While discussing the rights of the victims of crimes, the Supreme Court in para 14 of its judgment observed thus:
“14. in recent times four reports have dealt with the rights of victims of crime and the remedies available to them. The first report in this sequence is the 154th Report of the Law Commission of India of August 1996. While this Report did not specifically deal with the right of a victim of crime to file an appeal, it did discuss issues of victims of crime, compensation to be paid to the victim and rehabilitation of the victim including the establishment of a victim Assistance Fund.”

13. It would be apposite to refer to para 2 to 8 of the said judgment which would be relevant where the Hon'ble Supreme Court has discussed the aspect of victimology by taking various judgments including that of Lalita Kumari Vs. State of UP, {( 2014) 2 SCC 1.
“2. The travails and tribulations of victims of crime begin with the trauma of the crime itself and, unfortunately, continue with the difficulties they face in something as simple as the registration of a first information report (FIR). The difficulties in registering an FIR have been noticed by a Constitution Bench of this Court in Lalita Kumari V. State of U.P. The ordeal continues, quite frequently, in the investigation that may not necessarily be unbiased, particularly in respect of crimes against women and children. Access to justice in terms of affordability, effective legal aid and advice as well as adequate and equal representation are also problems that the victim has to contend with and which impact on society, the rule of law and justice delivery.
3. What follows in a trial is often secondary victimisation through repeated appearances in court in a hostile or a semi-hostile environment in the courtroom. Till sometime back, secondary victimisation was in the form of aggressive and intimidating cross-examination, but a more humane interpretation of the provisions of the Evidence act, 1872 has made the trial a little less uncomfortable for the victim of an offence, particularly the victim of a sexual crime. In this regard, the judiciary has been proactive in ensuring that the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both. The courts have provided solace to the victim with monetary compensation, but that is not enough. There are victim compensation schemes in force due to the mandate of Section 357-A of the Code of Criminal Procedure, 1973 (CrPC) but even that is not enough, though they are being implemented in several parts of the country. We are of the view that the judiciary is obliged to go and has gone beyond merely awarding compensation and has taken into consideration the larger picture from the perspective of the victim of an offence, relating to infrastructure in court buildings and has recommended and implemented some recommendations such as the construction of child friendly courts and courts that address the concerns of vulnerable witnesses. The courts have done and are continuing to do their best for the victims of crime.
4. In Sakshi V. Union of India this Court passed significant directions for holding in-camera proceedings, providing for a screen between the accused and the victim and placed restrictions, in a sense, on the cross-examination of witnesses. It is true that these directions have been passed in a case relating to sexual offences but the trend of this Court has been to show concern for the rights of victims of an offence and to address them.
5. Parliament also has been proactive in recognising the rights of victims of an offence. One such recognition is through the provisions of Chapter XXIA CrPC which deals with plea bargaining. Parliament has recognised the rights of a victim to participate in a mutually satisfactory disposition of the case. This is a great leap forward in the recognition of the right of a victim to participate in the proceedings of a noncompoundable case. Similarly, Parliament has amended CrPC introducing the right of appeal to the victim of an offence, in certain circumstances. The present appeals deal with this right incorporated in the proviso to Section 372 CrPC.
6. In other words, a considerable amount has been achieved in giving life to the rights of victims of crime, despite the absence of a cohesive policy. But, as mentioned above, a lot more still needs to be done.
7. Among the steps that need to be taken to provide meaningful rights to the victims of an offence, it is necessary to seriously consider giving a hearing to the victim while awarding the sentence to a convict. A victim impact statement or a victim impact assessment must be given due recognition so that an appropriate punishment is awarded to the convict. In addition, the need for a psychosocial support and counselling to a victim may also become necessary, depending upon the nature of the offence. It is possible that in a given case the husband of a young married woman gets killed in a fight or a violent dispute. How is the young widow expected to look after herself in such circumstances, which could be even more traumatic if she had a young child? It is true that a victim impact statement or assessment might result in an appropriate sentence being awarded to the convict, but that would not necessarily result in “justice” to the young widow – perhaps rehabilitation is more important to her than merely ensuring that the criminal is awarded a life sentence. There is now a need, therefore, to discuss these issues in the context of a social justice and take them forward in the direction suggested by some significant reports that we have had occasion to look into and the direction given by parliament and judicial pronouncements.
8. The rights of victims, and indeed victimology, is an evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than stand still or worse, take a step backward. A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that is it clearly heard.”

14. Having considered the aforesaid ratio laid down by the Hon'ble Supreme Court in the case of Mallikarjun Kodagali (supra) as well as the observation in the case of Sundeep Kumar (supra), I am of the view that the intervention needs to be allowed only to the extent of hearing the victim in order to assist the prosecution.

15. The applications are granted and are disposed off accordingly.

Order accordingly.