Is Victim 'Necessary Party' To Be Impleaded In Accused's Applications For Regular/ Anticipatory Bail: Rajasthan High Court To Decide

The Rajasthan High Court will soon decide whether a victim in a criminal case is a "necessary party" and must necessarily be impleaded in applications filed by accused for regular or anticipatory bail under Sections 437, 438 and 439 CrPC.

The issue was referred to a larger bench on Wednesday by Justice Anil Kumar Upman sitting at Jaipur.

The Judge expressed his disagreement with the Standing Order dated September 15, 2023 issued by the office of Rajasthan High Court on the basis of observations made by a coordinate bench in Nitoo Singh @ Nitu Singh v. State of Rajasthan whereby it was enjoined upon all the concerned that in future, in all matters arising out of criminal act committed against victim as defined under Section 2(wa) of CrPC, that the victim be necessarily impleaded as party respondent.

Nitoo Singh (supra) cited Jagjeet Singh & Ors. Vs. Ashish Mishra @ Monu & Anr. (2022) wherein the Apex Court had given emphasis on the victim’s right to be heard at every step post the occurrence of an offence, including the stage of adjudication of bail application of the accused.

“Expressing my disagreement with the view taken by the learned Coordinate Bench, 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 necessary party nor a proper party. The victims are required to be impleaded as necessary party in the cases where it is mandated by the provisions of Statute. There is no provision in the Criminal Procedure Code which enables a third party to get himself impleaded in the proceedings before the Criminal Court,” Justice Upman said.

The Court was hearing a bail application filed by petitioners having apprehension of their arrest in connection with FIR registered in Ajmer for offences under Sections 323, 341, 354 and 504 IPC.

It agreed with the coordinate bench insofar as right of a victim to be heard at every stage of the criminal proceedings is concerned. "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,” it observed.

However, the Court expressed its disagreement with the observation of the Coordinate Bench that the victim is a "necessary party" to be added in all the bail matters.

“In all prosecutions, the State is the prosecutor and a proceeding is always treated as proceeding between the State and the accused. Once the offence is committed, it is not against the individual but is 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 delay in deciding the bail application, the victim may avoid service of the notices,” the bench said.

Thus, the Court noted that the issue of necessarily impleadment of complainant/victim as party respondent in all the bail applications whether it be under Section 437, 438 or 439 CrPC, should be decided by a division bench or by a larger bench. It directed the the Registrar (Judicial) to place the matter before the Chief Justice for constituting an appropriate Bench.

Meanwhile, it directed the Public Prosecutor to procure the latest factual report of the investigation and to intimate the injured/victim about the present bail application. The Court directed that till further orders, the petitioners shall not be arrested in connection with the said FIR.

Case Title: Pooja Gurjar & Ors. v. State of Rajasthan

Case no.: S.B. Criminal Miscellaneous Bail Application No. 15143/2010

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