VICTIM’S RIGHT TO TAKE PART IN CRIMINAL PROCEEDINGS

 

VICTIM’S RIGHT TO TAKE PART IN CRIMINAL PROCEEDINGS

VIJAY VALIA –VS- STATE OF MAHARASTRA

[1987 MAH LJ 49]

The case to be discussed happened in the year of 1984, Vijay Valia is still regarded as benchmark in regards to the discussion of right to be heard and represented by the complainant who basically is the victim. In this particular case the rights of the accused, victim and the powers of the Court and the roles of the prosecution are well established and discussed in detail. The judgement reiterates simple concepts such as the active participation of the court in proceedings and the role of prosecution not be a mere instrument of acquittal but the pursuer of justice and the guardian of the interests of both the complainant and the accused. The case discusses the powers and procedures of Sections 24(8), 25(1), Criminal Procedure Code and the framework of conducting a prosecution unbiased which aims at achieving justice. The judgement also reiterates the importance of the vindication by the victim or the complainant through him the state as whole.

FACTS OF THE CASE

The case is presented before the Hon’ble High Court of Bombay. The parties being petitioner, Vijay Valia. The petitioner questioned the validity of Section 24(8) and 25(1) of the Criminal Procedure Code and whether the same violates the Article 14 of the Indian Constitution. The question of equality before law is raised by the petitioner. The other party being the State of Maharashtra and the office of prosecution. The court also combined several other pending cases with the same issue and question of law for which stay had been granted earlier and vacated the cases by this judgment. The petitioner Vijay Valia, challenged the Validity of Section 24(8) and 25(1) of the Criminal Procedure Code, 1973 contending that there are no guidelines as to when Special Public

Prosecutor/Assistant Public Prosecutor should be appointed and to that extent there was an excessive delegation of power and the power conferred under the said sections was arbitrary and violative of Article 14 of the Constitution. It was further contended that the appointment of a Special Public Prosecutor/Assistant Public Prosecutor at the instance of the complainant and paid for by him was bound to act to the prejudice of the accused because the prosecutor so appointed will be inclined in favour of the complainant and against the accused and will therefore not conduct the prosecution impartially. He may not act impartially under Section 321 of the Code in exercising his power to withdraw the prosecution. The writ petition was taken up by the High Court to answer the said question of law. The court also stringed several other cases which were in stay as they bore the same question.

ISSUES INVOLVED IN THE CASE

I. Whether there exists arbitrariness in the Sections 24(8) and 25(1) of Criminal Procedure Code, with no guidelines which violates Article 14 of the Indian Constitution?

II. Whether the said prosecutor specially appointed bound by the complainant to beprejudiced against the accused?

Plea of the Petitioner

 There is excessive delegation of power for the court to appoint Special Public Prosecutor or Assistant Public Prosecutor as the sections 24(8) and 25(1) of Criminal Procedure Code does not lay down any guidelines for the appointment for the said posts thereby violating the Article 14 of the Indian Constitution.

The Special Public Prosecutor or Assistant Public Prosecutor being paid by the complainant results the post holder to act in prejudice against the accused Because:

1.  The prosecution will be conducted impartially as the prosecutor will be inclined in favour of the complainant.

2.   The prosecution will not act impartially under Section 321 of CrPC in exercising the withdrawal from the case. There also may be conflict of interests in his duty to the State as an officer of the Government and as an advocate for the complainant who engages him.

3.  The prosecutor may not act independently in issuing his/ her certificate under Section 308 of the CrPC.

4.  The Prosecution may not render impartial advice on appealing under Section 378(1) of the CrPC to the State Government.

 LEGAL ASPECTS INVOLVED IN THE CASE

Constitution of India

Article 14 Equality before law. - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Every person, who lives within territory of India, has the equal right before the law.

Code of Criminal Procedure, 1973

Section 24(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. At court’s discretion the victim/complainant may engage the said prosecutor of his/her choice.

Section 25(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

Section 308(1) Where, in regard to a person who has accepted a tender of pardon made under Section 306 or 307, the Public Prosecutor certifies that in his opinion such person has, either

by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect

of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence, with some provisions.

Section 321 of the Criminal Procedure Code enables the Public Prosecutor or the Assistant Public Prosecutor to withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. For doing so, consent of the Court is necessary.

Section 378(1) empowers the State Government to direct the public prosecutor to present an appeal to the High Court from an original or appellate order passed by any Court other than

High Court, or passed by the Court of Session in revision.

Rules of the Conduct of the Legal Affairs of Government, provides for procedural rules about conduction of advocacy inside the State of Maharashtra.

Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, provides for legal services appointed by the state government.

JUDGEMENT

1.   The court ruled that the mere contention of Section 24(8) and 25(1) cannot be raised by the accused. Further it is to vindicate the rights and grievance of the complainant through him the state’s that the prosecution is launched.

2.  It is the duty of the prosecutor to deliver justice and safeguard the interests of both the complainant and accused. Any prosecutor who fails in and neglects this duty is doing disservice to the judicial administration. The court is no silent spectator but active participant of the proceedings and this does not vary from prosecution to prosecution.

3.  There are 3 modes of addition of a prosecutor which are appointed and paid by state; appointed by complainant and paid by state; appointed and paid by complainant; rules of the conduct lay down the procedure for appointment. Any addition to the prosecution party will be in detail viewed such as nature of the case, evidences, circumstances, number of days the hearing is carried, name and fees of the special prosecutor. These procedures laid down nullifies any type of said prejudice brought in by the prosecutor or the arbitrariness claimed by the accused.

4.  As regarding the usage of the power of public prosecutor to withdraw under section 321, i.e., withdrawal from prosecution the court ruled that there is no ‘untrammelled’ power given to prosecution to withdraw. Any such withdrawal first needs the acceptance from home department through district magistrate or commissioner of police whichever the case maybe and further the consent of court is required.

5.  The certificate under section 308(1) which has to be given by the prosecutor procedurally by which tender of pardon weighs on cannot be altered as per the wish of prosecutor as proper justification has to be given for the action took by the prosecutor.

6.   Section 378(1) is strongly substantiated by the procedures laid down in the conduct rules. The decision to file an appeal/revision is not entirely at the discretion of the prosecutor as he has to send this proposal to deputy secretary or district magistrate as per the case.

7.   The court ruled that any of the contentions and circumstances as questioned by the petitioner be a problem in the process of justice as irrespective the appointment of the special prosecutor or the assistant prosecutor the court, the procedure, and the framework hold the system unflawed.

8.  The court disagreed the judgements of Narayanankutty v. State of Kerala and ruled that the conduction of prosecution appointed and paid by the complainant does not change his capacity and ability in performing the role of Public Prosecutor.

9.  The court ruled that Babu v. State of Kerala deals with Section 302 of the code and does not involve the provisions of sections 24(8) and 25(1). Thereby the court refused to agree that an advocate engaged by the private person cannot be a de facto complainant and stressed upon its earlier view of giving the right to represent and right to be heard to the complainant.

10.         The case further cited Ajay Kumar v. State, Delhi High Court which ruled out a similar judgement as this one.

11.          Contention if any can only be raised by the complainant if the court rejects his choice and the accused has no right to choose the prosecutor.

12.         The argument of an unfair trail because of the fact that the prosecution is being done by an advocate appointed by the state/complainant is based on an erroneous concept.