Making room for the victim in the criminal justice system

Context: Victim of a crime should be given his due recognition as a critical stakeholder in the administration of criminal justice. Presently, his role has been reduced to that of a mere spectator in the entire battle fought b/w the prosecution and the accused.

But, a recent decision of the Supreme Court in Jagjeet Singh and Ors. v. Ashish Mishra and Anr. (Lakhimpur Kheri violence case) has ignited a beacon of hope in victim jurisprudence. In this judgment, the court cancelled the bail granted to the accused by the high court over the denial of a fair and effective hearing to the victim in the bail proceedings.

This requires an inquiry into the role of the victim in an adversarial criminal justice system like ours.

How victim participation has been recognised in the criminal justice system?

A milestone in the recognition of victims in the criminal justice process was the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985.

Victim participation is given a prominent position in various jurisdictions throughout the world and can be observed at various stages of a criminal trial, including

– producing evidence and questioning witnesses

– The right to know the status of the investigation

– Petition the court for further direction

– Being heard in the grant or cancellation of bail

– Advance arguments after the submission of the prosecutor’s arguments.

Unfortunately, in India, the victim is left in the background of a criminal trial, and even the protection of her interests is entirely dependent on the public prosecutors who are already overloaded by the Indian court system’s vast pendency.

Role of victim in the criminal justice system in India is examined henceforth in terms of their participation in bail proceedings in non-bailable cases.

What is the victim’s participation in bail matters in India?

The jurisprudence of bail is primarily dealt with by the Code of Criminal Procedure 1973 and supplemented by judicial precedents.

The victim’s participation in bail matters happens in the limited circumstances of non-bailable matters or where the accused is to be released on bail in case of suspension of sentence pending appeal, where the punishment prescribed is more than seven years imprisonment, and in cancellation of bail.

The opportunity of being heard here is conferred on the public prosecutor, representing the victim. The high court, in the exercise of its inherent power, can allow the complainant or the victim to intervene and oppose the bail, pending appeal.

In contrast, special legislation like the SC/ST (Prevention of Atrocities) Act and POCSO Act, expressly recognise the victim’s right to timely notice of any court proceedings, including the bail proceedings and to be informed by a special public prosecutor regarding the same.

• This right extends to the right of being heard at any proceeding under the act — bail, release, conviction, sentence, etc.

The V S Malimath Committee (2003) and 268th Law Commission Report of India, (2017) championed the victim’s right to participate in grant or cancellation of bail and suggested “victim impact assessment” reports in bail matters, respectively.

What is the SC’s view on victim’s right to be notified of bail proceedings?

The victims’ right to be heard at every stage of the proceedings under the SC/ST Act has been held to be inexpungible by the Supreme Court in Hariram Bhambhi v. Satyanarayan (2021), where non-issuance of notice to the victims for the bail proceeding was held to be incurable.

However, the victim’s right to be heard has been completely disregarded in IPC offences.

Way forward

The decision of the Supreme Court reinforcing the right of a victim to be heard in matters of bail in non-bailable cases will make the Indian criminal justice system more victim-inclusive at each stage.

The bail application in non-bailable cases should be decided after weighing the relevant considerations and affording an adequate opportunity of hearing to the victims.

Source: This post is based on the article “Making room for the victim in the criminal justice system” published in The Indian Express on 29th Apr 22.