Thursday, July 8, 2010

Victims should be allowed to take part in prosecution: HC

Victims should be allowed to take part in prosecution: HC

CHENNAI: In an effort to sustain public confidence in the criminal justice delivery system, the Madras high court has ruled that victims too had every right to take part in the prosecution, and that trial courts should not deny them the constitutional right' and the human right'.

Justice M M Sundresh, passing orders on a criminal petition filed by Sathyavani Ponrani on Wednesday, said: "After all it is he (victim) who sets the criminal law in motion and it is he (victim) who is the affected party. This court is of the opinion that an advocate engaged by a victim will have to be permitted to take part in criminal proceedings, thereby performing his role as an advocate representing the victim."

Sathyavani's daughter, married in July 2009, committed suicide a few months later. He lodged a complaint against her in-laws alleging harassment for dowry and cruelty. One of the accused -- Samuel Raj -- sought anticipatory bail in the sessions court in Madurai. When Sathyavani sought to be included in the case as intervener to oppose grant of anticipatory bail, the sessions court dismissed his claim, on the ground that there was prohibition under Section 301 (appearance for public prosecutor) of the Code of Criminal Procedure.

Justice Sundresh, disapproving of the denial of the right, reiterated the need to ensure the active participation of victims too in bail and other criminal trial proceedings, and said the advocate engaged by the victims should assist the prosecution, prosecutor and the court. "It is the sole prerogative of the public prosecutor to pick, choose and examine a prosecution witness. However, if he fails in the duty, either accidentally or designly, in the opinion of the court, then in such a circumstance, it can permit a victim's lawyer even to examine a witness. Such a power can be exercised by the court for the purpose of conducting a free and fair trial in the interest of justice."

Reiterating that there cannot be any prohibition for a victim to engage a lawyer and permit him to conduct the case by way of assisting the prosecution, Justice Sundresh said, "As the victim seeks to assist the prosecution there cannot be any prejudice since what is sought to be made is only to assist the prosecution and not to replace the prosecution. Moreover, in view of the huge inflow and pendency of cases, at times it may not be possible for a public prosecutor to concentrate fully on a single case."
Defining the term victim,' Justice Sundresh said it could mean not only the victim but anyone who assisted the victim or who sets the criminal law in motion or even a third party with public interest. "In a case where the victim is no more, it cannot be said no application can be filed by anybody. When a victim is not capable of prosecuting a case, then he has to be represented by another person."

Justice Sundresh, noting that a victim is very much a part of a criminal justice, said that it is unfair to disallow a victim to conduct the prosecution along with the public prosecutor when he had the right to be heard in litigations to quash or transfer the proceedings.

Describing the state's constitutional obligation to ensure free and fair investigation and trial as constitutional and fundamental right, the judge said, "such a right cannot be confined only to the accused. It should be available to the victim also, depending upon the facts of the case."

Justice Sundresh, however, made it very clear that courts should not allow any plea contrary to the case of the prosecution and which lacks bonafides. Courts must consider bonafides, legitimacy and genuineness of the victim while allowing his request to assist the prosecution.

In the end, he directed the subordinate courts to permit the petitioner to intervene and oppose the anticipatory bail pleas of the accused, if and when such a petition is filed.

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