In BAIL APPLN. 3635/2022-DEL HC- No requirement in law to implead sexual offence victim as party to criminal proceedings, rules Delhi HC while directing Registry to ensure that anonymity of survivor is strictly maintained
Justice Anup Jairam Bhambhani [19-04-2023]

Read Order: SALEEM Vs. THE STATE OF NCT OF DELHI & ANR

Tulip Kanth

New Delhi, April 20, 2023: The Delhi High Court has taken a step towards strengthening the rights of victims of sexual offences by ruling that the victim having unbridled participatory rights need not be made a party-respondent to any criminal proceedings. The Single-Judge Bench of Justice Anup Jairam Bhambhani has also issued various directions on maintaining the confidentiality of the prosecutrix/victim.

Justice Bhambhani relied upon the judgment of the Top Court in Jagjeet Singh & Ors vs. Ashish Mishra alias Monu & Anr and asserted, “It is therefore clear, that victims of crime can no longer be asked to remain mere spectators, and must be accorded, in the words of the Supreme Court, unbridled participatory rights in the legal proceedings initiated in relation to the crime alleged to have been committed against them.”

An effort was made by the Bench to effectuate the legal mandate of keeping the victim’s identity confidential and the unbridled right of a victim to participate in all criminal proceedings relating to the crime.

The matter emanated from a petition filed under section 439 r/w section 482 of the Code of Criminal Procedure, 1973 (CrPC), seeking grant of regular bail in a case registered under section 376 of the Indian Penal Code, 1860 (IPC) and under section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

While issuing notice on the petition on the first date of hearing, it was observed that the victim in the subject FIR had been made party-respondent in the matter, though her name and particulars had been anonymized or redacted. It was submitted from the petitioner’s side that the same was done on the specific directions of the Registry.

In the Registrar’s report, it was mentioned that the petitioner was directed to implead the victim as a party-respondent in purported compliance of section 439(1A) CrPC and Practice Directions dated September 24, 2019 issued by the Delhi High Court. The report also said that the same practice was being followed in all matters being filed in the High Court relating to victims of sexual offences.

Referring to the judgment in Mallikarjun Kodagali (Dead) represented through Legal Representatives vs. State of Karnataka & Ors (2019) whereby the Supreme Court had observed that victims can no longer be sidelined, the Bench noted, “Beginning from the conventional position, where only the State had the prerogative to prosecute the offender, based on the notion that a criminal offence was a crime against the people-at-large, to the view taken in Mallikarjun Kodagali (supra), the Supreme Court has now expanded the role of a victim from one that was penumbral to one that is central to criminal proceedings.”

Insofar as sexual offences are concerned, the Bench opined that it is the unequivocal statutory mandate in section 228-A IPC, sections 23, 33(7) and 37 of the POCSO Act and sections 327(2) and 327(3) of the Cr.P.C. that the identity of a victim must be kept confidential. Reference was also made to the decision in Nipun Saxena vs. Union of India whereby the Supreme Court emphasised the requirement of maintaining confidentiality of a victim of a sexual offence.

“There is no requirement in law to implead the victim, that is to say, to make the victim a party, to any criminal proceedings, whether instituted by the State or by the accused”, the High Court held while enumerating further directions which were restricted to criminal matters relating to or arising from or concerning sexual offences.

In accordance with the mandate of the Supreme Court in Jagjit Singh (supra), a victim now has unbridled participatory rights in all criminal proceedings in relation to which the person is a victim, the Bench affirmed while holding that section 439(1A) CrPC must now be expanded to include the victim’s right to be heard even in petitions where an accused seeks anticipatory bail or a convict seeks suspension of sentence, parole, furlough, or other such interim relief.

Not only this but the High Court also directed that the Registry must carefully scrutinize all filings relating to sexual offences, to ensure that the anonymity and confidentiality of the prosecutrix/victim/survivor is strictly maintained.

The Bench also passed the following directions-

• The name, parentage, address, social media credentials and photographs of the prosecutrix/victim/survivor must not be disclosed in the filings including in the memo of parties and such particulars should not get reflected in the cause-list.
• Files/paper-books/e-portfolio of matters relating to sexual offences filed in the High Court must not be provided to any person other than the parties to the litigation, to the prosecutrix/victim/survivor and their respective counsel, after due verification of the identity credentials.
• All service to be effected upon the prosecutrix/victim/survivor shall only be through the Investigating Officer in accordance with Practice Directions dated September 24, 2019 and not through the process serving agency, though a copy of the petition or application must be served upon the prosecutrix/victim/survivor.
• The Investigating Officer must also inform the prosecutrix/victim/survivor that they have the right to free legal-aid/representation.
• If the parties wish to cite in court any identifying particulars of the prosecutrix/victim/survivor, including photographs or social media communications etc., such party may bring the same to court in ‘sealed cover’ or file the same in ‘sealed cover’ or in a ‘pass-code locked’ electronic folder and share the pass-code only with the concerned Court Master.

The Bench concluded the matter by asking the Registrar General to bring this judgment to the notice of the Chief Justice for framing of appropriate practice directions, notice or notification in-line with the mandate with the directions of Nipun Saxena Case (supra).