CIVIL, Criminal

Rights of the Victim in Prosecution

SUPREME COURT
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Criminal Procedure Code under Amendment of 2009 ( W.E.F 31.12.2009) recognized the place of Victim and Victim’s role in prosecution and appeal.

Definition of Victim

U/S 2 [wa]- “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;  [ POSITION CHANGED]

Prosecution 

24(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

[Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-Section.]  [ POSITION CHANGED]

301. Appearance by Public Prosecutors. – (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor,

and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

302. Permission to conduct prosecution – (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission :

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.

APPEAL BY VICTIM

372. No appeal to lie unless otherwise provided. – No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.

[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.]  [ POSITION CHANGED]

REVISION BY VICTIM

397. Calling for records to exercise powers of revision. – (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation. – All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

399. Sessions Judge’s powers of revision. – (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.


 

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so.

But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Quote of Justice Sutherland, Berger v. United States,
295 U.S. 88 (1935)

 

1. In M/S Jk International vs State, Govt Of NCT Of Delhi And Ors … DECIDED on 23 February, 2001 the Apex Court shifted it`s position adopted in  Shiv Kumar vs Hukam Chand And Anr [ SC 1988 AUGUST]

BACK GROUND OF SIVA KUMAR : “That was a case where the complainant engaged his counsel and wanted to conduct the chief examination when he was to be examined as a witness for the prosecution. The said prayer of the complainant was objected to on behalf of the accused on the premise that a private counsel cannot conduct prosecution in a session’s trial. Though the trial Court allowed an application to be filed on behalf of the complainant, which was also endorsed by the public prosecutor, the revision filed by the accused was allowed and the order of the trial Court was set aside”. [Sister Mina Lalitha Baruwa vs State Of Orissa & Ors on 5 December, 2013

2.The Apex Court, in the case of Ramakant Rai vs. Madan Rai and Others, reported in (2003) 12 SCC 395, recognized the right of a private person to file an appeal against order of acquittal passed by a High Court. In case of Masurddin Mushni vs Md. Siraj & Ors, reported in (2008) 8 SCC 434, the Supreme Court held that a First Information Report cannot bequashed by Court at the instance of accused without giving notice to informant.

3. In  A.I.R. 1987 Supreme Court 117, (Chandavarkar Sita Ratna Rao v. Ashalata S. Guram), observed that the golden rule is that the words of a statute must prima facie give their ordinary meaning and the aforesaid principle should not be departed unless it can be shown that the legal context in which the words are used requires different meaning. A bare perusal of definition of „victim‟ manifests that the term has not been used in a restrictive sense and would include both the complainant and the informant so long it satisfies qualifying condition in the proviso that he must have suffered loss or injury by act of omission or commission of the accused.

4. In Subhash Chandra vs State (Delhi Administration), reported in (2013) 2 SCC 17, that there is no distinction between a Complaint Case filed by a private person and a public servant and, as such, the appeal against acquittal, in every single complaint case, would lie under Section 378(4) after seeking Special Leave of the High Court.