Meghalaya High Court
Shri. Phidalis Lamare vs . The State Of Meghalaya on 11 March, 2025
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 04
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.A. No. 15 of 2023
Date of Order: 11.03.2025
Shri. Phidalis Lamare Vs. The State of Meghalaya
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S. Deb, Adv.
For the Respondent(s) : Mr. K. Khan, P.P with
Mr. S. Sengupta, Addl. P.P
ORDER
1. In course of hearing of this appeal, the same being one against
the order of conviction under Section 376 IPC, the question as to
whether the prosecutrix/victim is required to be arrayed as a party
respondent, the case being one involving crime against a woman, has
been sought to be answered before proceeding further with the hearing.
2. Heard the argument advanced by the learned counsel for the
appellant as well as the learned Public Prosecutor for the State
respondent.
3. The basis for such a query was founded on the authority of the
Supreme Court rendered in the case of Jagjeet Singh & Ors. v. Ashish
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Mishra alias Monu & Anr. reported in (2022) 9 SCC 321, more
particularly at para 23 wherein it was held that:
“23. A “victim” within the meaning of CrPC cannot be asked to
await the commencement of trial for asserting his/her right to
participate in the proceedings. He/She has a legally vested right
to be heard at every step post the occurrence of an offence. Such
a “victim” has unbridled participatory rights from the stage of
investigation till the culmination of the proceedings in an appeal
or revision. We may hasten to clarify that “victim” and
“complainant/informant” are two distinct connotations in
criminal jurisprudence. It is not always necessary that the
complainant/informant is also a “victim”, for even a stranger to
the act of crime can be an “informant”, and similarly, a “victim”
need not be the complainant or informant of a felony.”
4. The key words in the above para being the allowance accorded
to a victim of crime, as understood within the confines of the provisions
of the Code of Criminal Procedure, who is allowed participatory right
to be involved in a criminal proceedings right from the stage of
investigation till the same culminates in an appeal or revision.
5. Before proceeding further, it would be apt to refer to the relevant
provision under the Cr.P.C. which provides for such participation of a
victim in a criminal proceedings, the same being found in Section 439
(1A) which reads as follows:
“439…
[(1A) The presence of the informant or any person authorised
by him shall be obligatory at the time of hearing of the
application for bail to the person under sub-section (3) of
section 376 or section 376AB or section 376DA or section
376DB of the Indian Penal Code (45 of 1860).]”
6. From the above what can be understood is that in proceedings
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where the offence relates to crime against women or children, be it a
case of sexual assault and the like, Section 439 (1A) mandates the
participation of the informant or any person authorised by him if an
application for bail as far as the accused person involved in such offence
is preferred.
7. It would be an understatement to say that the provision referred
to would indicate that in cases of such kind involving sexual assault etc.
the informant or his assign would take over the role and duty of the
prosecutor in such proceedings, when the law provides that a trial in a
criminal case before a court of session is to be conducted by a Public
Prosecutor (See S. 225 Cr.P.C).
8. The purport of the directions in the case of Jagjeet Singh (supra)
is to allow the informant/complainant/victim/survivor to participate in
the proceedings, as mentioned above, particularly in a hearing on a bail
plea only for the reason that such participation may assist the court to
ascertain certain facts regarding any threats or tampering of evidence or
even flight risk as far as the accused is concerned.
9. However, “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;” as has been observed
by the Hon’ble High Court of Delhi in the case of Saleem v. The State
of NCT of Delhi & Anr. vide order dated 19.04.2023 in Bail Appln.
3635/2022.
10. Be that as it may, following the diktat in the case of Jagjeet
Singh (supra) it would be prudent for the court dealing with bail
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applications of like nature, to comply with the provision of Section 439
(1A) and allow the participation of the
informant/complainant/victim/survivor in such proceedings.
11. However, the issue to be decided herein does not involve bail
proceedings but as stated at the outset, the legality of whether a
victim/prosecutrix/survivor must be made a party respondent in a
related and relevant criminal appeal.
12. In a case cited by both sides herein, that is, Rohit v. The State
of Maharashtra, the Hon’ble High Court of Bombay in Criminal Appeal
(ST) No. 8953/2023 vide order dated 10.11.2023 has thrown some light
on the subject wherein while discussing the issue of impleadment of the
victim in an appeal under Section 374 Cr.P.C, reliance was placed on a
decision of the Division Bench of the Hon’ble Calcutta High Court in
Criminal Appeal No. 228/2020 with Criminal Appeal No. 26/2021, para
26 which is quoted herein for clarity:
“26. For the aforesaid reasons, we hold that:
i) The victim is not a necessary party to a Criminal Appeal
from conviction for offences against woman or child,
punishable under provisions of the I.P.C. or POCSO Act or any
other penal provision which will apply in relation to offences
affecting human body against any “woman” and/or “child”,
both those expressions being understood in the context of the
respective legislation which deals with such offences.
ii) No such appeal would be defective in the absence of
impleadment of the victim.
iii) The procedure to be adopted in all such appeals would be
to deal with those appeals without insisting on the impleadment
of the victim. In cases where, over and above the assistance of
the Public Prosecutor representing the State, the appellate court4
deems it necessary to provide further assistance to secure the
interest of the victim through legal aid, the HCLSC or the DLSA
concerned may be required to provide assistance through an
empanelled or other advocate as may be decided by the HCLSC
or the DLSA concerned. However, even in such cases, it shall
be insisted by the Court that the principles relating protection of
dignity and privacy and modality of ensuring those values, as
delineated above, are scrupulously adhered to.
iv) As a necessary corollary, we deem it situationally
appropriate to state that the appeals by victims would be
governed by the directions in Nipun Saxena (supra); however,
that there need not be any doubt as to how the victim would be
described. It would suffice that the cause-title of such an appeal
would show that the appellant is the victim in the criminal case
identified by its number, the court below and/or the police
station. This will insulate the victim from being subjected to
disclosure of identity of that person.”
13. Again, this issue was thoroughly discussed by the Hon’ble
Gauhati High Court in the case of Bormoty Panggeng v. State of
Arunachal Pradesh & Anr. reported in 2021 (1) GLT 833, relevant
portions of which are extracted and reproduced herein, the same being
para 15, 19 and 20:
“15… It is also worth noting that proviso to Section 24(8) and
proviso to Section 372 CrPC were brought in by the same
Amendment Act of 2009. Thus, the distinction between the
aforesaid two provisions incorporated by the same Amendment
Act of 2009, and the fetter imposed on the right of the victim to
be heard in a criminal proceeding initiated at the instance of the
accused or the State makes the purpose and intendment of the
legislature amply clear, that a person, who is affected by the
crime or a victim of the crime cannot, as a matter of right, claim
to be heard in a proceeding initiated at the instance of the
accused or the State or to be impleaded as respondent in an
appeal preferred by the accused against the conviction.
However, if a victim comes forward and wants to be heard or in
the facts and circumstances of the case, the court considers the5
necessity of hearing the informant or the victim in a proceeding
initiated at the instance of the accused, the court may always
exercise its judicial discretion to issue notice and hear the victim
or the informant, as the case may be. Therefore, though a private
person or a victim, who has a locus to be heard or to take part in
a criminal proceeding instituted by the State or initiated at the
instance of the accused, the informant/victim cannot be
considered or held to be entitled to be served with notice or
claimed to be heard as a matter of right. Thus, in view of the
purpose and intendment of the legislature revealed from the
wordings of the provisions of Section 301 (2) CrPC, 302 as well
as the proviso to Section 24(8) of the CrPC, we are of the
considered opinion, that any interpretation, holding, that the
informant shall be mandatorily made party respondent or served
him with notice in a proceeding initiated at the instance of the
accused or for that matter, making it obligatory to serve the
informant/victim with notice before proceeding to hear an
appeal instituted by the accused against conviction, because of
insertion of the proviso to Section 372 CrPC may, neither be
appropriate nor desirable, as it shall not be conducive to the
legislative purpose and intendment.
19. The Full Bench of the Jharkhand High Court was
considering a similar question that “whether the informant and
the victim, who is the ultimate sufferer of a criminal case have
a legal right to appear, in a proceeding initiated at the instance
of the accused, through a private lawyer as per provision
contained under Section 301 (2) of the CrPC as well as the law
laid down in the case of J.K. International (supra). The Hon’ble
Jharkhand High Court having extensively discussed the relevant
provision of the CrPC, as well as in the judgments of the Apex
Court, held in para 28 as under:
“28. Upon survey of the law evolved through the
pronouncements of the Hon’ble Supreme Court, the
legislative Changes which has progressively occurred
towards the recognition of the role and rights of the victim
in a criminal trial, and the discussions made herein above,
it can be said that the victim or a private person has the
locus to appear in a proceeding initiated at the instance of6
the accused in any case before any Court where it is a
affected party, however subject to the discretion conferred
upon the Court, to be exercised in the manner and to the
extent, as may be required in the facts and circumstances
of a particular case. “Locus Standi” has been defined in the
Blacks Law Dictionary as “the right to bring an action or
to be heard in a given forum.” As per the Law Lexicon by
P Ramanatha Aiyar “Locus Standi” signifies a right of
appearance in a Court of Justice or right to be heard or
place of standing. Such a Locus Standi confers on a person
only if he has a interest in the matter. The victim/private
person in that sense does have a interest in the matter since
it is the ultimate sufferer of such crime. However, u/s
301(2) of the code, the legislature has consciously
regulated it in the manner that the Pleader so instructed by
a private person, shall act in any such case under the
directions of the Public Prosecutor only and not as an
absolute legal right of independent appearance before the
Court. The aforesaid provision is therefore in clear
distinction from the specific provision u/s 372 proviso of
the code conferring upon the victim a distinct legal right to
prefer an appeal which was not earlier available to him
under the unamended section 372. The conscious
distinction made by the legislature in the wording of the
two provisions is apparent and with a definite legislative
purpose and intent. If such a view is taken that the
victim/private party or the informant has legal right to
appear in a proceeding initiated at the instance of the
accused under the provisions of Section 301(2) of the
CrPC read with Section 24(8) proviso, it would mean that
the victim/private party is a necessary party in every such
proceeding and as a matter of right, is entitled to notice
before the proceedings are heard and decided. Such a
course of Interpretation would amount to creating a
specific legal right which the legislature never intended to
confer upon the victim/private person. Such interpretation
is neither desirable nor appropriate for a Court of law while
undertaking the task of interpreting the specific language
used in the Statute keeping into mind the Statute as a whole
and the aim and object which it seeks to achieve.”
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20. In view of the discussion and the reasons stated above, we
answer the question in the negative. We further hold, that it is
not obligatory on the part of the accused or the court to implead
the informant as a party or to serve the informant with notice,
before proceeding to hear an appeal filed by the accused against
conviction in a case arising out of a police report. However, the
“victim” may participate, with permission of the court, in the
appeal filed by the accused against conviction and may engage
a counsel of his/her choice, to assist the Public Prosecutor in
charge of the case, and may also submit written argument with
the permission of the court. Therefore, in our opinion, the
direction given in criminal appeal No. 222/2012 by the learned
Single Judge, making impleadment of the informant obligatory
on the part of the appellant in an appeal preferred by the accused
against conviction does not reflect good law. The question is
accordingly answered.”
14. On careful consideration of the issue involved, this Court is in
respectful agreement with the observations made by the Hon’ble
Calcutta High Court (supra) as well as that of the Hon’ble Gauhati High
Court (supra) though participation of the concerned is obligatory at the
stage of consideration of bail, it is not mandatory that the
informant/complainant/victim/survivor be made party respondent in a
criminal appeal. This however, would not prevent the court to allow
such party to participate in the hearing of the appeal, if that is done, on
his or her own volition. Any objection to the prayer of the appellant
must be voiced through the prosecutor who may or may not articulate
the same if not found relevant.
15. In view of the above observation, the related reference is
answered accordingly.
16. Before parting, since this Court has touched on the area of
participation of the informant/complainant/victim/survivor in a
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proceeding for grant of bail concerning cases involving sexual offence,
the mode and manner of how such participation can be affected,
particularly keeping in mind the vulnerability of the victim/survivor
who should not be exposed publicly, this, not being the subject matter
herein will be dealt with in an appropriate proceeding.
17. This matter will now proceed for further hearing. List the same
after 2(two) weeks.
Judge
Meghalaya
11.03.2025
“Tiprilynti-PS”
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