Victim need not be party to a criminal appeal in cases registered under POSCO: High Court of Calcutta

This was decided in the case of Avik Ghatak and Ors. vs. State Legal Services Authority [CRA 26 OF 2021] by Thottathil B. Radhakrishnan and Justice Aniruddha Roy in the High Court of Calcutta.

This judgement has come in a criminal appeal filed by one Ganesh Das, who was convicted for offences punishable under Section 376(3) of IPC and Section 6 of the POCSO Act by the Trial Court, and was sentenced to undergo rigorous imprisonment for 20 years. This appeal was however opposed by the State, after noting that it is defective as the victim has not been made party.

The bench of High Court had thus framed the following issues for consideration

(1) Is the victim a necessary party to an appeal, under Section 374 of CrPC, from conviction?

(2)If the answers to these two questions are in the negative, what is the procedure to be adopted?

(3)Would such an appeal be defective in the absence of impleading

The bench made it clear that the legal rights, eligibility and interest of a victim, in the course of an appeal against conviction, would stand satisfied This approach, the Court said, shall synchronize the opportunity to contest the appeal with victim’s right to privacy and protection of identity. 

It shall be noted that reliance was placed on Nipun Saxena & Anr. v. Union of India & Ors. (2019) 2 SCC 703 wherein it was held that “The victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the I.P.”

The Bench further noted that contents of Section 374 and Section 385 of CrPC taken together will show that issuance of notice of the hearing of the appeal is from a judgment of conviction in a case instituted upon complaint. Trial, conviction and sentence are matters primarily between the accused person and the State. The statutory provisions for institution of the appeal. 

No such appeal would be defective in the absence of pleading of the victim. The procedure to be adopted in all such appeals would be to deal with those appeals without insisting on the pleading by the victim. In cases where over and above the assistance of the Public Prosecutor representing the State, the appellate court deems it necessary to provide further assistance to to secure the interest of the victim through legal aid, the HCLSC or the DLSA concerned may be required to provide assistance through an empanelled or other advocate as may be decided by the HCLSC or the DLSA concerned. However, even in such cases, it shall be insisted by the Court that t principles relating to protection of dignity and privacy and modality of ensuring those values, as delineated above, are scrupulously adhered to.

Accordingly, the Bench has ordered that  the victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the I.P.C. or POCSO Act or any other penal provision which will apply in relation to offences affecting human body against any “woman” and/or “child”, both those expressions being understood in the context of the respective legislation which deals with such offences.

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