The Delhi High Court on Wednesday ruled the victim of a sexual offence has “unbridled participatory rights” in all criminal proceedings in the matter but there is no legal requirement to make her a party to the proceedings.
Justice Anup Jairam Bhamabhani stressed on the need of maintaining confidentiality in respect of the identity of the victim and directed the high court registry to “carefully scrutinise” all filings in order to ensure the anonymity of the victim is strictly maintained.
The court also said in light of a Supreme Court decision granting participatory rights to such victims in criminal proceedings, section 439(1A) (right of victim to be heard) of Code of Criminal Procedure must be expanded to include her right to be heard even in petitions where an accused seeks anticipatory bail, a convict seeks suspension of sentence, parole, furlough, or other such interim relief.
The court’s order came while dealing with bail plea by a person accused of rape and aggravated sexual assault on a minor.
The victim had been made a “party-respondent” in the matter while redacting her details.
The court observed that it is the State which is in-charge of prosecuting criminal offences and the “right to be represented and be heard” is different from the “right or the obligation to be a party” to the proceedings.
The court noted there may be times where a victim may not seek a hearing, and making her a party to the proceedings and mandating her to appear and defend may cause her additional hardship and agony.
“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,” said the court in its 20-page order.
“In accordance with the mandate of the Supreme Court.., a victim now has unbridled participatory rights in all criminal proceedings in relation to which the person is a victim, but that in itself is no reason to implead a victim as a party to any such proceedings, unless otherwise specifically so provided in the statute,” it stated.
Making the presence of the informant obligatory at the time of hearing in terms of section 439(1A) CrPC gives the victim the right to be “effectively heard”, whether through the informant or other authorised representative, and her “mere ornamental presence” is not enough, it said.
The court said it was clear that victims of crime can no longer be asked to remain mere spectators and must be accorded unbridled participatory rights in the legal proceedings initiated in relation to the crime alleged to have been committed against them.
Amicus curiae, senior advocate Rebecca John who assisted the court in the matter, argued there was no requirement, statutory or otherwise, that a victim must be made party to criminal proceedings and her right to be heard is already recognised.
The counsel for the complainant, however, argued the victims must be impleaded.
John said, in certain cases, there is no anonymousness in relation to a victim at all, and once a victim has been impleaded as a party respondent, there are high chances of third persons being able to put-together her identity even if anonymity is maintained.
To protect the identity of victims, the court passed a slew of directions and asked that the same may be shared with trial courts and police by the high court Registrar General and be brought to the notice of the high court chief justice for framing appropriate practice directions.
The court said the name, parentage, address, social media credentials and photographs of the prosecutrix/victim/survivor must not be disclosed in the filings made in court and any identifying particulars may be brought to court or filed in a sealed cover or a pass-code locked electronic folder.
The registry must ensure that particulars do not get reflected in the cause-list and the details of the victim’s family members are not disclosed in any manner, the court stated.
“At the stage of scrutiny of the filings, in the event the Registry finds that the identity credentials of a prosecutrix/victim/ survivor are disclosed in the memo of parties or anywhere else in the filings, such filings must be returned to counsel who have filed the same, to undertake requisite redactions, before the filings are accepted,” stated the court.
It since complete redaction from all documents may not be possible, files/paper-books etc relating to sexual offences must not be provided to any person other than the parties to the litigation and all service shall only be effected by the investigating officer who must remain in plain clothes to avoid any unwarranted attention and inform the victim of her right to free legal aid.
The court perused the legal framework under the Indian Penal Code, POCSO and CrPC and said it was a statutory mandate that the identity of a victim must be kept confidential.
