Victim Or Complainant Of Sexual Offences Not Ordinarily Required To Be Impleaded As Respondent: Delhi HC Appoints Amicus To Take ‘Considered View’

The Delhi High Court has appointed Senior Advocate Rebecca John as amicus curiae to decide if the requirement of giving intimation to a victim or complainant of sexual offences under IPC and POCSO Act, also requires impleadment of such person as a party to a bail plea or appeal. 

Section 439(1A) of CrPC states that the “presence of informant or any person authorised by him shall be obligatory at the time of hearing of bail application under sections 376 (3) or 376AB or 376DA or 376DB of Indian Penal Code.”

Justice Anup Jairam Bhambhani sought John’s assistance to take a “considered view” in the matter after observing that maintaining confidentiality and privacy of a victim in sexual offences is a mandate of law and that the victim “is not ordinarily required” to be impleaded in such cases.

The court said that it will be considering the question in light of the recent judgment of the Supreme Court Jagjeet Singh & Ors. v. Ashish Mishra @ Monu & Anr. which held that a victim has the right to participate in every stage of trial, from investigation to the culmination of trial in appeal or revision.

It will also consider as to whether any other judicial verdict or statutory provision requires such impleadment.

“Since maintaining confidentiality and privacy of a victim/prosecutrix in sexual offences is a mandate of the law inter-alia under section 228A IPC and section 23 POCSO Act; and a victim/complainant is not ordinarily required to be impleaded in such cases, in order to take a considered view on this aspect, this court appoints Ms. Rebecca Mammen John, learned senior counsel as Amicus Curiae to assist the court,” the court said.

The court was dealing with a bail plea moved by an accused who is in custody in an FIR registered under Section 376 of IPC and Section 4 of the POCSO Act.

Justice Bhambhani last month had asked its Registry to clarify whether there is any judgment or practice directions requiring impleadment of victim or prosecutrix in such cases.

On January 16, the Registrar referred to section 439(1A) of Cr.P.C. and practice directions of the court issued on September 24, 2019 requiring impleadment of the victim or complainant in memo of parties as respondent after hiding the identity.

Reference was also made to an order of coordinate bench dated February 21, 2022 in Rakesh Bhatnagar v. State (Govt) of the NCT of Delhi wherein the court permitted impleadment of the complainant as respondent in a similar case.

The counsel appearing for the accused submitted that the victim was impleaded as respondent in the matter since the Registry had so required.

On the other hand, State submitted that the Registry was insisting on the requirement only in view of section 439(1A) of Cr.P.C. and the 2019 practice directions.

Reliance was made on decision of a coordinate bench in Reena Jha & Anr v. Union of India & Ors wherein application of section 439(1A) Cr.P.C. was extended to cases under POCSO Act instead of restricting the same only to the specified sexual offences under IPC.

“Let a copy of this order be sent to Ms. John within 03 days. She is requested to assist the court in the matter on the next date,” the court said while listing the matter on January 31.

Title: SALEEM v. THE STATE OF NCT OF DELHI AND ANR.

Click Here To Read Order