Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Cal) 216

IN THE HIGH COURT OF CALCUTTA
Thottathil B. Radhakrishnan, Aniruddha Roy, JJ.
Ganesh Das - Appellant
Versus
Rabiul Sk - Respondent
C.R.A. No. 228 of 2020, 26 of 2021
Decided On : 06-04-2021

Advocates Appeared:
Avik Ghatak, Advocate, Saibal Krishna Dasgupta, Advocate, Kushal Kumar Mukherjee, Advocate, Rajnandini Das, Advocate, Rana Mukherjee, Advocate, Shiv Shankar Banerjee, Advocate, Sanchita Barman Roy, Advocate, Sourav Chatterjee, Advocate

The victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the IPC or POCSO Act. No such appeal would be defective in the absence of impleadment of the victim.

Headnote:
victim - Criminal Appeal - Section 376(3) of IPC, Section 6 of POCSO Act, Section 357 of Cr.P.C., Section 374 of Cr.P.C. - The court 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 IPC or POCSO Act. No such appeal would be defective in the absence of impleadment of the victim. The procedure to be adopted in all such appeals would be to deal with those appeals without insisting on the impleadment of the victim. However, even in such cases, it shall be insisted by the Court that the principles relating to protection of dignity and privacy and modality of ensuring those values are scrupulously adhered to. The appeals by victims would be governed by the directions in Nipun Saxena (supra); however, that there need not be any doubt as to how the victim would be described. It would suffice that the cause title of such an appeal would show that the appellant is the victim in the criminal case identified by its number, the court below and/or the police station. This will insulate the victim from being subjected to disclosure of identity of that person.
Fact of the Case:

The appellant was held guilty and convicted for offences punishable under Section 376(3) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The appeals were against conviction and sentence. The department noted that one appeal was defective as the victim had not been made a party in the application.
Finding of the Court:

The victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the IPC or POCSO Act. No such appeal would be defective in the absence of impleadment of the victim. The procedure to be adopted in all such appeals would be to deal with those appeals without insisting on the impleadment of the victim.
Issues: Whether the victim is a necessary party to an appeal from conviction? Whether such an appeal would be defective in the absence of impleadment of the victim?
Ratio Decidendi: The victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the IPC or POCSO Act. No such appeal would be defective in the absence of impleadment of the victim.
Final Decision: The appeals by victims would be governed by the directions in Nipun Saxena (supra); however, that there need not be any doubt as to how the victim would be described. It would suffice that the cause title of such an appeal would show that the appellant is the victim in the criminal case identified by its number, the court below and/or the police station. This will insulate the victim from being subjected to disclosure of identity of that person.

JUDGMENT

Thottathil B. Radhakrishnan, C.J. - Is the victim a necessary party to an appeal, under Section 374 of Cr.P.C., from conviction? Would such an appeal be defective in the absence of impleadment of the victim? If the answers to these two questions are in the negative, what is the procedure to be adopted?

2. Cra No. 228 of 2020 is an appeal against conviction and sentence. The appellant was held guilty and convicted for offence punishable under Section 376(3) of the Indian Penal Code; hereinafter referred to as "I.P.C."; and Section 6 of the Protection of Children from Sexual Offences Act, 2012; for short, "POCSO Act". He was sentenced to undergo rigorous imprisonment for 20 years and to pay fine of Rs. 10,000/- and in default to undergo rigorous imprisonment for one year for the offence punishable under Section 376(3) of I.P.C. It was directed that the victim is entitled to get the said fine amount of Rs. 10,000/- if realized, in view of the second proviso to Section 357 of the Code of Criminal Procedure; for short, "Cr.P.C.". The department has noted that this appeal is defective as the victim has not been made party in this application (appeal).

3. Cra No. 26 of 2021 is also an appeal against conviction and sentence. The appellant was held guilty and convicted for offence punishable under Section 6 of the POCSO Act and was sentenced to undergo imprisonment for 10 years and to pay fine of Rs. 1 lac and in default to undergo simple imprisonment for 1 year. The Court below had directed that if the fine is realized, the said amount be paid to the victim in terms of Section 357 of Cr.P.C. In this appeal, the appellant has arrayed, among the respondents, a person described by name and disclosing that person s identity as the victim. On 08.03.2021, this Court recorded an order, inter alia, "One private person is impleaded as respondent no. 2. We are of the view that the impleadment of such person as respondent needs to be considered, on the point, whether it is to be permitted".

4. We heard the learned Advocates for the appellants in the two appeals, Advocate Sourav Chatterjee who assisted this Court as Amicus Curiae, Advocate Shiv Shankar Banerjee assisting from the West Bengal State Legal Services Authority and the learned Additional Public Prosecutor Mr. Rana Mukherjee. We also had the privilege to hear learned Senior Advocate Shekhar Basu, by way of advisory and assisting intervention.

5. We keep aside the provision made in the impugned judgment in CRA 228 of 2020 for payment of compensation under Section 357A of Cr.P.C. since payment of compensation under the Victim Compensation Scheme cannot be subjected to an appeal by the accused, be that person a convict or not.

6. Advocate Sourav Chatterjee referred to the provisions of Section 23, 24(5) and 33(7) of the POCSO Act to point out that there is an overwhelming legislative thrust to ensure protection of the victims. He also referred to the decision of the Hon ble Supreme Court of India in Nipun Saxena & Anr. Vs. Union of India & Ors, (2019) 2 SCC 703 ; in particular, paragraph 50.4 and 50.6. thereof; and to the decision of the Apex Court reported as ( In Re:-Alarming Rise in the number of Reported Child Rape Incidents, (2020) 7 SCC 142 ). Reference was also made to the decisions of the Hon ble Supreme Court in Bhupinder Sharma Vs. State of Himachal Pradesh, (2003) 8 SCC 551 , State of Punjab Vs. Ramdev Singh, (2004) 1 SCC 421 , Lalit Yadav Vs. State of Chattisgarh, (2018) 7 SCC 499 , Ravishankar Vs. State of Madhya Pradesh, (2019) 9 SCC 689 , Sangitaben Shaileshbhai Datanta Vs. State of Gujarat, (2019) 14 SCC 522 and the decision of this Court in Bijoy Vs. State of West Bengal,2017 SCCOnline(Cal) 417 . We will deal with those precedents as we proceed.

7. The decision of the Apex Court in Vishaka Vs. State of Rajasthan, (1997) 6 SCC 241 and in National Legal Services Authority Vs. Union of India, (2014) 5 SCC 438 were cited by Advocate Sourav Chatterjee to state that the