Are we still arguing this?

Wasn’t this decided already?

Well, the answer is Yes AND No.

Taking a step back for a moment and frankly speaking – apart from this specific problem, we have indeed come a long way; from the days when a Victim was relegated to being a mere footnote in a criminal case file, a mere spectator who could, at best, assist the prosecution. A prosecution who did not – at times – want to be assisted. Things are – now, broadly, much better.

The progressive march of law….

To summarise the march of law in this regard, a victim is now entitled to:

1. Be heard at the time of Bail or Anticipatory Bail.  
2. Be heard at the time of decision of a petition u/s 482 CrPC filed by the Accused.
3. Be heard if a closure report is filed by the police and the Victim is given an opportunity to file a ‘protest petition’
4. Be heard if a further investigation order (173(8) CrPC) is passed in Victim’s favour and the same is challenged in Revision by an accused.
5. Can seek a further investigation order herself.
6. Assist the prosecution during the trial. 
7. Be heard if a challenge is made to a summoning order in a revision petition by the Accused.  
8. File a revision petition against a discharge order herself.
9. In fact, file a revision against order excluding from exhibition in evidence a document important to victim (Honnaiah T.H v. State of Karnataka – SC – 2022)
10. File appeal against acquittal.
11. Compensation both final and interim; and last and the most importantly :
12. “Legally vested right to be heard at every step post the occurrence of an offence” and “Unbridled Participatory rights” at every stage right from the FIR to Appeal/Revision. (Basis the latest judgment in Jagjeet Singh v. Ashish Mishra & Anr, 2022 SC. Hereinafter “Jagjeet”)

This is a fairly comprehensive roster of rights with the last one being the most important articulation.

Landmark ruling in Jagjeet Singh

Para 24 of Jagjeet reads as follows:

The meaning and import of ‘unbridled participatory rights’ would, of course, find meaning in subsequent cases but this is as wide and as important articulation of rights as possible. On a side note : It is quite possible that the Courts find that the Victim cannot, unless with the permission of the Court and without making out a special case, conduct the prosecution herself and cross examine witnesses, etc. That may still be out of bounds and – arguably – for good reasons.

What is the concern now?

In this background, what compels me to write this column is a judgment on the issue of : Right of the Victim to be heard in a Revision petition filed by the Accused. This judgment holds that a Victim may not be entitled to audience in a revision petition filed by the Accused (in a state case).

The High Court in Vipul Gupta v. State (Delhi High Court – DoD : 06.08.2021)(hereinafter “DHC judgment in Vipul”) reads S.401(2) CrPC to be exhaustive on the issue of : who is to be heard and who is not to be heard in a criminal revision petition. It first notes the language of Section 401(2) CrPC which reads as under:

No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

Section 401(2) CrPC

This when read with S. 397/401 CrPC (which are substantive provisions providing for a right to file a revision) has been read to mean that only the accused or someone in the shoes of or akin to an accused (like a proposed or prospective accused) can be heard in a revision petition, and this term does not include the victim or the complainant.

Para 14 of DHC judgment in Vipul holds:

In doing so, The DHC judgment in Vipul, in my humble opinion, ignores a long line of decisions interpreting the phrase ‘other person’ to include a Complainant/Victim.

For instance, the Bombay HC in Prakash D.Sheth v. State of Maharashtra, 2021 (2) Bom CR (Cri) 315, interpreting the same provision holds:

The Court further observes:

This finding is progressive and also consistent with a long line of decisions recognising the Victim’s right to be heard in any proceeding which may have the effect of terminating the proceedings and exonerating the Accused.

Vast precedent on the ‘Victim’s right to be heard’ in challenges to proceedings by the Accused.

Some of these key decisions and brief factual context is as follows :

1. Kalyani v. The State of Maharashtra and Ors., 2012 Bom Cr (Cri) 738 (Revision against charge by the Accused. Victim found entitled to be heard.) (para 1 and 2, 8-10);
2. Vijay Tiwari v. Neeraj Bediya & Ors, CRR 627/2015 (Revision against charge. Victim heard.) (Internal page 9 of the judgment);
3. Sachin Lad v. Poonam Maheshwari & Ors., M. Cr. C. No. 4435/2017  (Case of summoning order being set aside in a revision. Held : Can’t be done until victim is heard)  (Para 1, 3, 5, 9-10, 12);
4. Md. Murtuza v. The State of Bihar and Ors., Criminal Revision No. 1099 of 2013 (same as above, Case of summoning order being challenged in a revision. Victim must be heard before any orders are passed) (Internal page 2 and 3);
5. Ravi Chaudhary v. State of Uttaranchal and Ors., 2010 (1) N.C.C. 55 (Same as above) (Para 1, 4, 5, 6);  
6. Jagbandhu Nandi and Ors. v. State of Bihar and Ors., Criminal Revision No. 268 of 1998, II (2004) DMC 531, (Para 2 and 3);
7. Giriza Devi v. State of U.P., 2014 (87) ACC 400 (Context : Police filed a Closure Report. Complainant filed protest petition. Protest allowed and orders of further investigation passed. Set aside in revision without hearing the victim. Held : bad) (Para 13-17);
8. Uma Nath Pandey and Ors. v. State of U.P and Ors. , (2009) 12 SCC 40 (5-10, 17, 19, 20) (General principles of Natural Justice reaffirmed in the context of criminal proceedings);
9. Sriram Nagodrhar Mahajan & Ors. v. State of Maharashtra and Ors., 2006 CriLj 2216 – (Para 7, 10, 11, 15, 16, 18, 19);
10. Madan Mohan v. State of Rajasthan, (2018) 12 SCC 30 – (Para 14) (Context : Victim filed a S.193 Application post filing of CS, seeking summoning of additional accused. Accused summoned. They challenged in revision. Held : Such a petition can’t be decided without hearing the victim.);
11. George Renato Bader v. State of Uttarakhand and others, Criminal Misc. Application No. 517 of 2008 (In a revision against charge – victim not heard. Order set aside);
12. JK International v. State, Govt. NCT of Delhi and Ors. , (2001) 3 SCC 462 (3 Judge Bench) (In a petition u/s 482 filed by the Accused seeking quashing of the case, the victim must be heard even though the language of S. 482, on the face of it, does not mandate that)(Paras 8, 13, 14, 15, 16);
13. Mosiruddin Munshi v. Md. Siraj and Ors., (2008) 8 SCC 434 (Without victim being heard case quashed. Held bad.) (Para 3 and 4);
14. Bhagwant Singh v. Commissioner of Police and Ors., (1985) 2 SCC 537 (Before accepting closure report, the informant should be heard) (Para 1, 4).  

Therefore, in view of this long line of decisions and the clear shift in jurisprudence in the last two decades, DHC judgment in Vipul, with great respect, does not appear to be laying down the correct legal proposition and is – arguably – per incuriam.

There is another aspect of the matter.

The unforeseen and – arguably – unintended anomalous consequences

Holding that a victim/complainant doesn’t have the right of audience in a revision filed by the Accused leads to an anomalous result. As the following judgments would reveal, a victim has the right to herself file a revision against an order of discharge by the trial court. In fact, Revisional powers can be exercised by the Court suo motu as well. If that is the case, there is no reason as to why a complainant who’s had the misfortune of the trial court having framed charges against the accused, shouldn’t be heard in a revision, if the accused were to challenge the order of charge.

In other words, a complainant/victim in a state case is far worse off if the trial court does indeed frame charges, because – then – in the revision filed by the Accused, she won’t be heard. She is much better off, counter-intuitively – if the Trial Court discharges the accused, because -then – she would atleast be heard at the revisional level and can file a revision herself.

This anomalous and unjust result may also open the section to a challenge on the anvil of right to equality as it discriminates arbitrarily and unreasonably between victims filing a revision and victims defending a revision. While it gives right of audience to the former, it denies similar right to be heard to the latter. Further, it discriminates between victims/complainants in a 482 petition vis-a-vis Victims in cases where the trial has commenced and the trial court has framed charges and accused has challenged the same.

(Though one may argue that this is only an unintended and unseen consequence, if at all, of DHC judgment in Vipul as Revision in the said case was not against an order of framing of charge but some orders which are not as momentous as framing of charges.)

Further, the interpretation of “other person” in S. 401 (2) CrPC to include only those persons who are akin to an accused also goes against the grain and spirit of other decisions such as :

1. Otam Taggu v. Tageng Pado and Ors., 2017 CriLJ 4100 (where the Victim’s right to file a revision against discharge was recognised)  (Para 14 and 15 and 19) 
2. Maninder Kaur v. State and Ors., 1999 (50) DRJ 31 ( on Victim’s right to file a revision) (Para 1, 5) 
3. K Pandurang and Ors. v. S.S.R. Velusamy and Ors., (2003 CriLJ 4964 (Context: Revision at the instance of the Complainant in a state case. (Power of revision can be exercised suo motu also) (Para 6) 
4. Durga Devi v. Vinod Kumar and Ors., 121 (2005) DLT 484 : 2005 (81) DRJ 496 (Victim can file a revision) (para 4);
5. And recently (Honnaiah T.H v. State of Karnataka – SC – 2022) where Victim’s right to file a revision was recognised in case where the trial court fails to exhibit an important document in evidence at the time of recording of evidence.

A few other decisions which hold that a victim is entitled to be heard in State cases at various stages further reinforce the importance of hearing the victim.

1. Pandharinath Tukaram Raut v. Manohar Sadashiv Thorve, Criminal Revision Application No. 479 of 2013 (Bombay High Court) (Victim to be heard in a state case) (Para 7) 
2. Niranjan Lal and Another v. Attar Singh And Others, 1990 (Supp) SCC 57 (Context : Hearing on sentence – Victim should have been heard. (Revision against sentence) (Para 2);

These decisions and the arguments above, it appears, were not considered by the DHC judgment in Vipul.

Another reason why DHC judgment in Vipul may not be good law is because it draws sustenance from the two judges decision by the Supreme Court in AK Subiah. However, it fails to note that the judgment in AK Subiah is distinguishable as – in that case – the complainants were parties in the revisional proceedings, and the original victims, did not want to be made parties to the case.

Even otherwise, AK Subiah, in the author’s respectful submission, did not lay down – as an indubitable proposition of law – that a victim/complainant should not be heard in a revision filed by the accused in a state case 

Even assuming that AK Subiah said what DHC judgment in Vipul says it says, even then, the legal position stands completely and comprehensively changed now.

This is by virtue of the Supreme Court ruling in Jagjeet which – as we’ve seen above- inter-alia, held:

The terminology used is critical :

These are words of the widest amplitude and very definitive declaration of the law. Even if the immediate issue before the Court in Jagjeet was a bail application (and the right to be heard at the time of the bail decision), the law declared by the 3 Judges bench is binding on all courts across the country, even if it was not immediately applicable in the immediate case at hand.

It is now well settled that in case of a definitive declaration of law on an issue considered by the Supreme Court Court, the question as to whether the same is an obiter or a ratio pales into insignificance. Both are binding.

Hence the adage : even the obiter of Supreme Court is binding.

How does one say so? Let’s see:

In this regard, Article 141 of the Constitution is important. It reads:

This is reinforced by the following rulings:

The ruling of the Allahabad HC in Ram Manohar Lohia & Ors. v. State of UP & Ors, 1967 SCC Online All 31, which, in Para 16, notes:

It further notes:

And the concurring judgment also notes:

In this regard the observations of the Bombay High Court in Kamlesh Kumar and Supreme Court in Peerless General Finance are also instructive.

In Kamlesh Kumar, the Bombay High Court said:

The Supreme Court in Peerless Finance (Para 14) said:

This should set to rest any doubts one may have about the wide sweep of the SC decision in Jagjeet.

Further, since Jagjeet is subsequent to DHC judgment in Vipul, it can also be said to have impliedly overruled the latter. For this, we may also profitably refer to the judgment in State of Punjab v. Devans Modern Breweries Ltd. & Ors. (2004) 11 SCC 26 (5 Judges Bench), where the Bench held:

This should set to rest any doubts.

Even the general contemporaneous understanding of Jagjeet (as is clear from a number of HC decisions post Jagjeet) is that it also extends to revision petitions filed in state cases and the complainant/victim is entitled to be heard in those proceedings.

Another aspect of the matter is that S.401(2) of the CrPC is not a disabling provision but an enabling provision.

To recapitulate, Section 401(2) reads as follows:

No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

Section 401(2) CrPC

I believe the intent of the provision was never to exclude the victim or the complainant but to ensure that the accused is heard, because – normally – the accused’s rights are the most gravely affected. Expression of one, in this context, cannot mean exclusion of the other. In other words, merely because the accused is to be heard, does not mean the Victim/Complainant should not be heard.

Also, there appears to be no compelling reason as to why the phrase “other person” should be confined to someone in the nature of, or akin to, an accused. If the legislature intended that, it could and would have expressed that.

Also, the concept of Ejusdem Generis seems inapplicable. Ejusdem generis is the rule:

In the present case, the general words “other person” are not preceded by an enumeration of two or more things. This omission is critical and quite telling. They are just preceded by the word “accused”. There is, therefore, no class or genus readily identifiable in the prior words. 

Therefore, there is no reason to let the word “accused” qualify the widest expression possible “other person” and allow a right to be heard only to accused persons or someone akin to an accused.

This could not have been the legislative intent. 

Especially, when the same is so incredibly out-of-sync with the times and the march of law with regard to victim rights. 

Another anomaly that would result from this interpretation is that, if the word ‘other person’ is to be read only to refer to a prospective accused, then – even in complaint cases, where, for instance, a revision is filed by the Accused (eg : a 138 NI Act case where accused challenges the summoning order), the complainant would not be entitled to a hearing as the complainant is not someone akin to an accused. 

Therefore, given the vast precedent on the subject, the definitive ruling in Jagjeet, the general rules of interpretation and law of precedent, coupled with the contemporaneous understanding of various High Courts of the scope and ambit of Jagjeet’s ruling, all lead to only one conclusion that is : A victim must be heard in a revision petition filed by the accused, even if that were to be in a State case.

And, this is not only a compelling legal case or argument, but also a cause. We must remember that while – notionally – the State takes-over the prosecution of a crime (considering it a ‘crime against society’), it is actually the victim who suffers most intimately and should not be a forgotten entity.

Therefore, the endeavour must be to ensure that the victim is :

The Author wants to thank his stellar team of bright young lawyers Jai Alagh & Maanish Chaudhary for all the great research, thought-provoking discussions and help with this piece.

Also super-helpful was the assistance provided by Ajatshatru, Hamna and Zubia.

Disclosure: The Author has recently argued this legal question at length in a case from the side of the Victim/Complainant.