1. First informant's right to orally oppose accused's discharge application in criminal proceedings. (Para 2 , 3 , 4 )
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2025 Supreme(Online)(Bom) 351215
HIGH COURT OF BOMBAY
HON'BLE SHRI JUSTICE S. M. MODAK
SANA TALHA KHAN Alias Sana Sirajuddin Mukadam – Appellant
Versus
STATE OF MAHARASHTRA THROUGH PUBLIC PROSECUTOR – Respondent
WPST/13372/2025
Advocates:
For the Appellants/Petitioners: M.A. Khan, H.I. Sirguroh, Mohsina Khan, Aasma Shah, Dipti Mehta
For the Respondents: Sangita E. Phad, Prashant Thombre, Moinuddin Khan
For the Appellants/Petitioners: M.A. Khan, H.I. Sirguroh, Mohsina Khan, Aasma Shah, Dipti Mehta
For the Respondents: Sangita E. Phad, Prashant Thombre, Moinuddin Khan
The court affirmed that the first informant/victim, as a substantive stakeholder in the criminal justice system, has the right to address the court orally when opposing a discharge application, reflecting the enlarged rights of victims under the 2009 amendment and judicial interpretations.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 24, 156(3), 301, 302 and 372 - Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 18, 19, 338, 339, 413 and 442 - Right of the first informant/victim to address the court orally - Whether the first informant has a right to oppose a discharge application by making oral arguments before the trial court - The 2009 amendment enlarged the rights of victims, recognizing them as independent stakeholders in the criminal administration system (Paras 9, 26).
(B) Victim's Rights - The right of a victim to be heard is described as substantive, enforceable, and a facet of human rights, and is not merely accessory or auxiliary to the rights of the State (Para 14).
(C) Role of Private Pleaders - Under the provisions of the Code, while a pleader instructed by a private person typically assists the prosecutor, the broader legislative intent and judicial interpretations recognize the victim's right to participate at various stages of proceedings to ensure a fair trial (Paras 19, 22, 24).
Facts of the case:
A discharge application was filed by the accused in a criminal matter. The first informant sought permission from the trial Magistrate to oppose the discharge application and address the court orally. The learned Magistrate granted this permission. The accused, aggrieved by the said order, filed a writ petition challenging the legality of allowing the first informant to argue orally.
Findings of Court:
The court found that the first informant's right to address the court orally while hearing a discharge application should be recognized. This is particularly relevant where the criminal law was set into motion via directions under Section 156(3) of the Code, indicating the informant's active role in seeking justice after the police initially failed to register an FIR (Para 27).
Issues: The primary issue was whether the first informant/victim possesses the right to address the court orally by opposing a discharge application filed by the accused.
Ratio Decidendi: The court reasoned that although the statute may not explicitly provide for oral arguments by the victim during discharge hearings, the 2009 amendment and subsequent judicial precedents have elevated the victim to a substantive stakeholder in the criminal justice system. Such rights are independent of the State's prosecution. Given the circumstances where the informant had to approach the court to initiate the FIR, recognizing the right to be heard orally ensures the integrity of the criminal administration (Paras 24, 26 and 27).
Result: Writ Petition is dismissed.
Legal Category Hierarchy
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practice and procedure
- criminal procedure
- crime and sentencing
Table of Contents
2. Petitioner argued no right to oral argument existed; respondent argued victim's rights were enlarged by 2009 amendment. (Para 5 , 6 , 7 , 8 , 9 , 10 )
3. Court held victim's rights are substantive and enforceable, but statutory provisions limit private pleader to assisting prosecution. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 )
4. First informant has right to address court orally during hearing of discharge application, given victim's recognized role. (Para 25 , 26 )
5. Writ petition dismissed; impugned order permitting first informant to argue orally confirmed. (Para 27 , 28 )
6. Does a first informant have a right to orally argue against an accused's discharge application?
Yes, the court recognized the first informant's right to address the court orally during the hearing of a discharge application, given the victim's enlarged statutory rights. (Para 25 , 26 , 27 , 28 )
7. What is the scope of a victim's right to participate in criminal proceedings under Sections 301 and 302, CrPC?
Under Section 301, a private pleader can only assist the prosecutor and file written arguments. Under Section 302, a private person can conduct the entire prosecution before a Magistrate. (Para 19 , 20 , 21 )
8. How does the 2009 amendment expand a victim's rights in criminal procedure?
The 2009 amendment inserted a proviso to Section 24(8) allowing a victim to engage an advocate to assist the prosecution, and gave the victim an independent right to appeal. (Para 9 , 10 , 22 )
9. Is the victim's right to be heard recognized at the stage of a discharge application or only at trial?
The right is recognized at the stage of a discharge application, as the court held the victim is a key stakeholder and need not wait for trial. (Para 14 , 24 , 25 )
ORAL JUDGMENT :
Heard learned Advocate for the Petitioner-Accused No.1 and learned Advocate for the Respondent No.2-first informant and learned APP.
2. The issue involved in this petition is “about right of the first informant to address the Court orally by opposing the discharge application filed by the Petitioner”. The FIR came to be registered with Byculla Police Station in pursuance to directions given under Section 156 (3) of Cr.P.C.. The charge-sheet came to be filed against the present Petitioner and others. There is an objection taken about respecting the process of law by the Petitioner. That is to say she has not complied with the conditions of anticipatory bail. This is a contentious issue. This needs to be addressed by the trial Court.
3. There is discharge application filed by the Petitioner. The first informant is already permitted by the trial Court to intervene in the proceedings. The first informant wants enlargement of such right and that is why he applied before the trial Magistrate and seeks liberty to oppose the discharge application.
4. The learned Magistrate as per the order dated 22nd January 2025 allowed that application and granted audience to the first informant. The Petitioner being aggrieved by the said order filed this writ petition.
5. The learned Advocate for the Petitioner invited my attention to the observations in the impugned order and according to him the learned Judge has committed an error while applying the correct ratio laid down by the Hon'ble Supreme Court in the case of Rekha Murarka v/s. State of West Bengal , (Criminal Appeal No.1727 of 2019). He has read the observations for my perusal.
6. In addition to that he relied upon the following two judgments:
(i) State of Goa v/s. Rosario Ferrao , (Criminal Appeal No.5 of 2015 dt.22/10/2021)
(ii) Kishore Wadhwani v/s. State of Maharashtra , (Criminal Writ Petition No.3438 of 2010)
7. Whereas according to learned Advocate for Respondent No.1, no interference is warranted and he relied upon the following two judgments:-
(i) Jagjeet Singh & ors. v/s. Ashish Mishra @ Monu & anr., (Criminal Appeal No.632/2022)
(ii) Prakash Sheth v/s. The State of Maharashtra & anr., (Criminal Revision Application No.60/2022 dt. 6/12/2022)
8. According to him as per the 2009 amendment the scope on ‘rights to victim’ is widened and he intends to address the trial Court on certain aspects. Whereas, according to learned Advocate for the Petitioner the judgment in case of Jagjeet Singh is on the point of right of audience at the time of hearing of bail application and according to him the observations in Rekha Murarka are not considered in that case.
9. It is true as per old Section 24 of Cr.P.C., 1973 and new Section 18 of B.N.S.S., 2023 there is a provision for appointment of a Public Prosecutor at High Court level, at the District level and the appointment of the Assistant Public Prosecutor is governed as per the provisions of old Section 25 of Cr.P.C., 1973 and new Section 19 of B.N.S.S., 2023 . There should be qualification for appointment for 7 years practice as contemplated under old sub-section 7 of Section 24 of Cr.P.C. and new sub-section 7 of Section 18 of B.N.S.S., 2023 . Whereas there is also provision for appointment of Special Public Prosecutor as per old sub-section 8 to Section 24 of Cr.P.C. and new sub-section 8 to Section 18 of B.N.S.S., 2023 . By way of 2009 amendment proviso to sub-section 8 is inserted in Section 24. The victim is given right to engage an Advocate to assist the prosecution. It is no doubt true that as per 2009 amendment the rights of the victims are enlarged. Even the victim is given independent right to prefer an appeal as per the provisions of old Section 372 proviso of Cr.P.C. and new Section 413 proviso of B.N.S.S., 2023 . There is a meaning of the victim given in old Section 2 (wa) of the Cr.P.C. and new 2(1)(y) of B.N.S.S., 2023 . The test is ‘one who has suffered any loss or injury.’ In this case the first i
