Pooja Gurjar D/o Nandaram Gurjar vs State of Rajasthan

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Raj) 1394

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
ARUN BHANSALI, PANKAJ BHANDARI, JJ.
Pooja Gurjar D/o Nandaram Gurjar – Petitioner
Versus
State of Rajasthan – Respondent
D.B. Criminal Reference No. 1 of 2023
Decided On : 19-12-2023

Advocates:
Advocate Appeared:
For the Petitioners: Biri Singh Sinsinwar, Harendra Singh Sinsinwar, Dhruv Atrey, N.N. Meena, A.K. Gupta, Rinesh Gupta, Gaurav Sharma, Anoop Meena, Saurabh Pratap Singh, V.R. Bajwa, Savita Nathawal, Rajeev Surana, Sankalp Sogani, Muskan Verma, Umang Jain, Pankaj Gupta, Naman Yadav, Saurabh Yadav, Hemang Singh Sinsinwar, Yogendra Singh, Sanjay Mehla, Sunita Mehla, Nagendra Sharma, Rajesh Sharma, Kapil Gupta, Adarsh Singhal, Ajay Gadwal, Manish Gupta, Kapil Prakash Mathur, Sudesh Saini, Mohd. Zuber, Nikhil Sharma, S.S. Hora, Hemant Nahta, Shyam Bihari Gautam, Anshuman Saxena, Pankaj Agarwal, Mohit Sharma, N.P. Meena, Jitesh Jain, Timan Singh, Abhilash Sharma, Ashwani Chobisa, Sandeep Pathak, Dushyant Singh Naruka, Mritunjya Sharma, Anurag Mathur, Saurabh Jain, Rishu Jain, Pallav Jhalani, B.R. Rana, B.R. Choudhary, Pratush Choudhary, Shubham Khunteta, Harsh Joshi, Akshay Shekhawat, Abhishek B. Sharma, Dhananjay Singh Gokhar, Aziz Ahmed, Farooq Ahmed, Parmeshwar Pilania, D.V. Tholla, Himanshu Tholla, Rohitash Kr. Saini, Naman Yadav, Tapish Saraswat, Nitin Jain, Manish Kumar Sharma, P.C. Devanda, Mahendra Saini, Prashant Deora, Anish Badala, Anuraj Pareek, Vimal Kumar Jain, Naman Maheshwari.
For the Respondents: G.S. Rathore, Atul Sharma, Kirtivardhan Singh Rathore, Tayyab Ali, Prashant Sharma.

Headnote:
IMPLEADMENT - Victim as Party-Respondent - Sections 437, 438, 439 of Cr.P.C. - Summary
Fact of the Case:

The court considered whether the victim defined under Section 2(wa) of the Cr.P.C. is a necessary party and necessarily be impleaded as a party-respondent in bail applications under Sections 437, 438 or 439 of Cr.P.C.
Finding of the Court:

The court found that the victim is not a necessary party and is not required to be impleaded as a party-respondent in bail applications under Sections 437, 438 or 439 of Cr.P.C.
Issues: The main issue was whether the victim defined under Section 2(wa) of the Cr.P.C. is a necessary party and necessarily be impleaded as a party-respondent in bail applications under Sections 437, 438 or 439 of Cr.P.C.
Ratio Decidendi: The court's decision was based on the interpretation of the relevant provisions of the Cr.P.C., the observations made in previous judgments, and the principle of fair trial. The court emphasized that the victim's right to be heard does not include the obligation to be impleaded as a party-respondent in criminal proceedings.
Final Decision: The court answered the reference in the negative, concluding that the victim is not a necessary party and is not required to be impleaded as party-respondent in bail applications under Sections 437, 438 or 439 of Cr.P.C.

JUDGMENT :

PANKAJ BHANDARI, J.

1. In the present Criminal Reference the following question has been referred:

“Whether in all the bail applications under Sections 437, 438 or 439 Cr.P.C. the complainant/first informant/victim defined under Section 2(wa) of the Cr.P.C. is necessary party and necessarily be impleaded as party respondent?”

2. A Standing Order No. 32/S.O./2023 dated 15.09.2023 was issued by the Office of this Court whereby it was enjoined upon all concerned that in future, in all matters, arising out of criminal act committed against victim as defined under Section 2(wa) of Cr.P.C. the victim be necessarily impleaded as party-respondent. The aforesaid Standing Order was passed on the basis of observations made in order dated 08.08.2023 passed by the learned Single Judge in S.B. Criminal Miscellaneous Bail Application No. 9490/2023 titled as Nitoo Singh @ Nitu Singh vs. State of Rajasthan that victim is necessary party in all the bail matters arising out of criminal act committed against the victim. Thereafter, learned Single Judge in order dated 27.09.2023 passed in Pooja Gurjar and Others vs. State of Rajasthan, S.B. Criminal Miscellaneous Bail Application No. 11910/2023 expressed disagreement with decision taken by the learned Single Judge in order dated 08.08.2023 and observed that informant/complainant/victim in the proceedings seeking grant of bail under Sections 437, 438 or 439 of Cr.P.C. neither can be considered as necessary party nor a proper party and accordingly framed a question hereinabove mentioned to be dealt by the Larger Bench by way of reference.

3. Learned Advocates namely Mr. Biri Singh Sinsinwar, Senior Advocate assisted by Mr. Harendra Singh Sinsinwar; Mr. A.K. Gupta, Senior Advocate, assisted by Mr. Rinesh Gupta; Mr. V.R. Bajwa, Senior Advocate, assisted by Ms. Savita Nathawat; Mr. Pankaj Gupta; Mr. Nikhil Sharma, Mr. Manish Gupta; Mr. Mohit Sharma; Mr. Pankaj Agarwal; Mr. Naman Maheshwari; Mr. Sagar Sharma; Mr. Hemant Gupta; Mr. Prashant Daga; Mr. Kapil Gupta; Mr. Anish Bhadala and Mr. Hemant Nahta have submitted their written submissions and have placed reliance on the judgments, namely, Jagjeet Singh and Others vs. Ashish Mishra and Monu, (2022) 9 SCC 321, Saleem vs. State of NCT of Delhi and Another, Bail Application No. 3635/2022, Ganesh Das, CRA No. 228 of 2020, Johirul Islam @ Jaher Ali vs. State of Assam, Criminal Appeal No. 332/2022, Rohit vs. State of Maharashatra, Criminal Appeal (ST) No. 8953/2023, Birbal Kumar Nishad vs. State of Chhattisgarh, SLP (Crl) No. 4540/2021, Rekha Murarka vs. State of West Bengal, (2020) 2 SCC 474, Informant vs. State of Karnataka, 2023 SCC Online Kar 69, Shiv Kumar vs. Hukam Chand and Another, (1999) 7 SCC 467 and Mallikarjun Kodagali (Dead) Represented by Legal Representatives vs. State of Karnataka, (2019) 2 SCC 752.

4. It is contended by learned Advocates that the Apex Court in Jagjeet Singh and Others vs. Ashish Mishra and Monu, (2022) 9 SCC 321 decided on 18.04.2022, no where directs that the victim should be impleaded as a necessary party. Our attention has been drawn towards the judgment of the Apex Court in Jagjeet Singh and Others (supra). It is contended that the judgment of the Apex Court in Jagjeet Singh and Others (supra) was considered by the Delhi High Court in Saleem vs. State of NCT of Delhi ad Another, Bail Application No. 3635/2022 decided on 19.04.2023 wherein the Court held that the victim’s right to be heard does not include the obligation to be impleaded as a party-respondent in criminal proceedings.

5. It is contended that bail is a rule and jail is an exception. It is argued that in the statute, there is no provision providing for impleading victim as a party-respondent and if a victim is to be impleaded as a party-respondent and notices are to be served, the same would unnecessarily delay the process and curtail the right of an accused as it would violate the spirit of Article 21 of the Constitution of India, which states that no pe