The victims’ movement, denouncing the lack of a participatory approach in the criminal justice system, spread like wildfire around the world in the last century. The movement that began in the United States has stood the test of time and is credited with establishing the current discourse on improving the position of the victim as a stakeholder in the administration of criminal justice .
Crime, which is essentially a wrong against the state, triggers the intervention of the entire state apparatus (police, judiciary) to repair the wrong and punish the wrongdoer. The cog that sets the wheel in motion acts as a mere spectator in the whole battle fought between the prosecutor and the accused. However, the recent Supreme Court decision in Jagjeet Singh and Ors. against Ashish Mishra and Anr. (Case of violence in Lakhimpur Kheri) has created a glimmer of hope in the case law relating to victims. In this judgement, the court set aside bail granted to the defendant by the High Court for denying a fair and efficient hearing of the victim in the bail proceedings. This requires an inquiry into the role of the victim in an adversarial criminal justice system such as ours. As former US President Ronald Reagan said, “For too long, victims of crime have been the outcasts of our criminal justice system.”
A milestone in the recognition of victims in the criminal justice process was the Statement of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985. Victim participation features prominently in various jurisdictions around the world and can be observed at different stages of a criminal trial, including the production of evidence and the questioning of witnesses. It includes the right to know the progress of the investigation, to ask the court for further instructions, to be heard in the granting or cancellation of bail and to present arguments after the presentation of arguments. of the prosecutor. Unfortunately, in India, the victim is relegated to the shadows and often hides in the background of a criminal trial, and even the protection of their interests depends entirely on the readiness of the prosecutors, already overburdened by the immensity of the Indian judicial system. .
Courts’ convenient wielding of the magic wand to grant bail is supported by statistics from India’s prisons (NCRB, 2020), which show that 39.3% of convicts and 95.4% of prisoners on trial of trials were extended to bail in 2020, thus affirming the canon that “bail is the rule, jail the exception”. The ever-evolving case law on bail is primarily addressed by the Code of Criminal Procedure 1973 and supplemented by court precedents. The granting of bail in non-dischargeable cases is at the discretion of the court or the officer, depending on many factors such as the nature and seriousness of the charge, the severity of the sentence the conviction will carry , the danger of flight of the accused, the falsification of evidence, recidivism and the interest of society. It is pertinent to note here that bail is an imprescriptible right of the accused in bail cases; the scope of the discretion applies only to non-dischargeable cases.
Victim participation in bail cases is provided for in the limited circumstances of non-bailable cases or where the accused is to be released on bail on a suspended sentence pending an appeal, where the prescribed penalty is more than seven years’ imprisonment, and in cancellation of bail. The possibility of being heard here is conferred on the public prosecutor, representing the victim. The High Court, in the exercise of its inherent power, may allow the plaintiff or victim to intervene and oppose bail, pending appeal.
In contrast, special statutes such as the SC/ST (Prevention of Atrocity) Act and the POCSO Act expressly recognize the victim’s right to reasonable, accurate, and timely notice of any legal proceedings, including bail proceedings. on bail, and to be informed by a special public body. prosecutor about it. This right extends to the right to be heard in any proceedings under the law – bail, release, conviction, sentence, etc.
The VS Malimath Committee (2003) and the 268th Report of the Law Commission of India (2017) have defended the right of the victim to participate in the granting or cancellation of bail and have suggested “Victim Impact Assessment” reports in bail cases, respectively. The concerns of the victim, as well as information about the physical, mental and social impact of the crime and bail, should be given due consideration.
The right of victims to be heard at every stage of the proceedings under the SC/ST Act was found to be impregnable by the Supreme Court in Hariram Bhambhi v. Satyanarayan (2021), where failure to issue notice to victims for bail proceedings was found to be incurable. However, the victim’s right to be heard is completely ignored in ICC offenses as evidenced by the supreme court’s frown in Rasiklal v. Kishore (2009) when canceling bail (non-releasable case) on the grounds that the plaintiff was not heard. .
The ripples created by the Supreme Court’s decision strengthening a victim’s right to be heard on bail in non-release cases is one of the first steps in the long journey of reshaping India’s criminal justice system. to make it more victim-inclusive at every stage. The application for bail in non-releasable cases should be decided after weighing the relevant considerations and giving victims an adequate opportunity for a hearing.
This column first appeared in the print edition of April 29, 2022, under the title “Make room for the victim”. Gautam is Assistant Professor and Das is PhD Researcher at USLLS, GGSIP University, Dwarka