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Madhya Pradesh High Court · body

2013 DIGILAW 1535 (MP)

Uday Bhan v. State of M. P.

2013-12-06

SHEEL NAGU, SUJOY PAUL

body2013
ORDER Nagu, J. 1. This petition under section 482 of the Criminal Procedure Code has been filed invoking inherent powers of this Court to recall the final order dated 19.12.2012 passed in M Cr C No.9261/2012, whereby this Court while exercising powers under section 407 r/w S. 482, Cr.P.C. (“Code” for brevity) transferred the Sessions Trial No.05/2011 pending before the Court of Third Additional Judge to the Court of Sessions Judge, Guna to Sessions Judge, Shivpuri after finding that the police force was present in the Court premises and the witnesses were taken in custody and, therefore conduction of trial against the petitioner and other co-accused persons at Guna is adversely affected by the prosecution agency thereby holding that fair trial is jeopardized. 2. Sole ground for seeking recalling of the abovesaid order dated 19.12.2012 is that the same has been passed without hearing the petitioner, who is the victim (complainant) in ST No.05/2011. 3. Learned counsel for petitioner has further submitted that the inherent powers of this Court under section 482, Cr P C can be exercised for recalling of order passed without affording opportunity to the party aggrieved. In this respect, reliance is placed on the decision of the Single Bench of this Court Parmeshwardin Patel v. Snehlata reported in 2004 (2) JLJ 91 . 4. Thus, the core question which falls for consideration herein is as to whether while exercising the power of transfer under section 407, Cr P C, the victim is required to be heard, and in case order of transfer is passed without hearing the victim, the same gets initiated in law or not ? 5. Before 31.12.2009, the concept of “victim” was foreign to the Code of Criminal Procedure. By the Code of Criminal Procedure (Amendment) Act, 2009, widespread amendments were made not only introducing the definition of victim as section 2 (wa) w.e.f. 31.12.2009 but various other provisions were inducted in the Code for benefit of victim. Thereby recognizing the importance and relevance of a “victim” in the process of investigation, enquiry, trial, appeal, revision, etc. 6. The term “victim” has been defined in newly introduced section of 2 (wa), Cr P C The relevance of victim has further been recognized in other parts of the Code, which is evident from the following newly introduced amended provisions by way of Code of Criminal Procedure (Amendment) Act, 2008. 6. The term “victim” has been defined in newly introduced section of 2 (wa), Cr P C The relevance of victim has further been recognized in other parts of the Code, which is evident from the following newly introduced amended provisions by way of Code of Criminal Procedure (Amendment) Act, 2008. The said Amendment Act of 2008 was introduced based upon the statement of objects and reasons which are reproduced below along with only those newly introduced amendments which pertain to victim :- “Statement of objects and reasons. -- The need to amend the Code of Criminal Procedure,1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission has undertaken comprehensive review of the Code of Criminal Procedure in its 154th report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant-cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial of persons of unsound mind. Also, as per the Law Commission’s 177th report relating to arrest, it has been found necessary to revise the law to maintain a balance between the liberty of the citizens and the society’s interest in maintenance of peace as well as law and order. 2. The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential , rich and powerful. At present, the victims are the worst sufferers in a crime and they do not have much role in the Court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system. The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimise the risk of escape of the remand prisoners during transit and also facilitate utilisation of police personnel for other duties. There is an urgent need to provide relief to women, particularly victims of sexual offences, and provide fair-trial to persons of unsound mind who are not able to defend themselves. To expedite the trial of minor offences, definition of warrant-case and summons-case are to be changed so that more cases can be disposed of in a summary manner. Amendment of section 2. To expedite the trial of minor offences, definition of warrant-case and summons-case are to be changed so that more cases can be disposed of in a summary manner. Amendment of section 2. - In section 2 of the Code of Criminal Procedure , 1973 (2 of 1974) (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:- ‘(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:’ Amendment of section 24.- In section 24 of the principal Act, in sub-section (8), the following proviso shall be inserted , namely :- “Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.” Insertion of new section 357A.- After section 357 of the principal Act, the following section shall be inserted, namely :- “357A. Victim compensation scheme.- (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or is dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. (2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1). (3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation. (4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation. (5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months. (5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months. (6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer-in-charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.” Amendment of section 372. - In section 372 of the principal Act, the following proviso shall be inserted, namely :- “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.” 7. In view of the above, it is evident that “victim”, who is the ultimate sufferer in the commission of a crime, has been given recognition as an aggrieved party by introducing the abovesaid amendment in Cr P C. There is no manner of doubt that right from the occurrence of the incident till the decision of trial, appeal or revision, till the highest Court of law, the “victim” is as much interested in the decision as is the accused or the State. In fact, the “victim” on account of being the injured person and the sufferer, deserves to be recognized as the most aggrieved party in a crime. It is a happy state of affairs that the stand of the victim are now vindicated in shape of amendment in the Cr P C. 8. This Court has, thus, no hesitation to hold that the victim is an aggrieved person not only in a crime, but also in an investigation, enquiry, trial, appeal, revision, review and also the proceedings by which the inherent powers of this Court under section 482, Cr P C are invoked. 9. This Court has, thus, no hesitation to hold that the victim is an aggrieved person not only in a crime, but also in an investigation, enquiry, trial, appeal, revision, review and also the proceedings by which the inherent powers of this Court under section 482, Cr P C are invoked. 9. The apex Court in various decisions has accepted the importance of hearing of the complainant before an order in favour of the accused is passed, which is evident from the decision of the apex Court in the case of Kurukshetra University v. State of Haryana reported in (1977) 4 SCC 451 , whereby while setting aside the judgment of the High Court quashing an FIR filed by the University, the apex Court observed inter alia that the informant (University) was required to be heard by the High Court before quashing the FIR. In another case J. K. International v. State : (2001) 3 SCC 462 , it was held that the victim or the person, on whose behest, the criminal prosecution is launched by the Police should be heard before quashing of such prosecution. While laying down this law, the apex Court added a rider by making the said finding subject to the complainant seeking an opportunity of being heard. Pertinently, the said decisions of the apex Court were rendered much prior to coming into effect of the Amended Code of Criminal Procedure in 2008 and, therefore when in the era of absence of statutory recognition granted to the victim, the apex Court laid down the abovesaid law, it goes without saying that in the post amendment era, the victim has become nearly as indispensable as the accused or the investigating agency in a criminal trial. 10. From the above discussion, it is crystal clear that the law now recognizes importance of victim in a crime and also in all the subsequent proceedings contemplated by Cr P C, which take place right from lodging of an FIR till decision in appeal or revision. 11. The transfer of the sessions trial in question from Guna to Shivpuri was admittedly made without hearing the victim, which is evident from reading of the order which is sought to be recalled. 11. The transfer of the sessions trial in question from Guna to Shivpuri was admittedly made without hearing the victim, which is evident from reading of the order which is sought to be recalled. The transfer certainly causes prejudice to the victim as he has a right not only to know the venue of conduction of trial, but also to oppose on cogent grounds an attempt of transfer of trial made on any ones behest out of territorial jurisdiction of the competent Court within whose purviews the crime was committed. 12. In view of the above, we have no hesitation to hold that the order sought to be recalled herein has been passed without hearing the victim and, therefore is vitiated. 13. Accordingly, the order dated 19.12.2012 passed in M Cr C No.9261/2012 is recalled. The M Cr C No.9261/2012 is restored to its original number.