Allahabad High Court
Parmanand Sirumal Tahalramani vs State Of U.P., Thru. Addl. Chief Secy. ... on 28 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:49954 AFR Reserved On :- 19.07.2023 Delivered On :- 28.07.2023 Court No. - 28 Case :- APPLICATION U/S 482 No. - 6853 of 2023 Applicant :- Parmanand Sirumal Tahalramani Opposite Party :- State Of U.P., Thru. Addl. Chief Secy. Home, Prin. Secy. Home, Lko. And Others Counsel for Applicant :- Gantavya Counsel for Opposite Party :- G.A. Hon'ble Shree Prakash Singh,J.
1. At the very outset, the learned counsel appearing for the applicant submits that she may be permitted to withdraw the prayer clause 'c' and the same may be permitted to be deleted.
2. The learned counsel appearing for the State has no objection to the contention aforesaid.
3. In view of the aforesaid submissions, the applicant's counsel is permitted to withdraw the prayer clause 'c' with further permission of deleting the same during the course of the day.
4. Heard, Ms. Neha Rashmi and Gantavya, learned counsels for the applicants, Sri Aniruddh Kumar Singh, learned AGA-I for the State and perused the material placed on record.
5. By means of the present application, prayer has been made to set-aside the order dated 26.05.2023 passed by respondent no. 2 in S.T. No. 375 of 2007 (State Vs. Sunit Tehlyan and Others) arising out of Case Crime No. 25 of 2005, under Section 302, 304 B, 201, 498 A r/w Section 34 of IPC and Section 3/4 of Dowry Prohibition Act and Section 30 of Arms Act, P.S. Manak Nagar, District Lucknow and further prayer is made that the applicant nos. 1 to 3 may be treated as the legal heirs of the victim, as applicant no. 1 is real uncle of the deceased and the applicant nos. 2 and 3 are the parents.
6. Brief factual matrix of the case is that on 25.04.2001, the niece of applicant no. 1, namely, Vanshika performed marriage with the respondent no. 3, namely, Sumit Tehilyani and on the demand of the accused persons, the applicants had given lucrative gifts and articles to them at the time of marriage including TV, Jewellery, Motorcycle and the deceased Vanshika was residing in her matrimonial home at Lucknow with the accused persons, i.e., respondent nos. 3 to 9.
7. Shortly, after the marriage, the respondent no. 3 and his family members started committing cruelty with the deceased, whereby, making demands of dowry and the deceased was threatened for dire consequences, if she and the applicant and the family members are failed to satisfy the demand of the accused persons. This was kept on intimating to the applicants but the family members of the deceased always tried to make understand the accused persons that whatsoever was available to them, they have given at the time of the marriage and they are not in a position to provide them whatever is being demanded as dowry and in the meantime, on 11.10.2002, the deceased, Vanshika gave birth to a female child, namely, Monish Tehliani and even after birth of the child there was no change in the behavior of the accused persons and even the deceased Vanshika was deprived from food and water and was kept isolated from her family members. The deceased, Vanshika and her daughter, Monish Tehliani were last seen alive on 06.05.2005, in the matrimonial home at Lucknow as there was the birthday of Vanshika and thus the accused persons permitted the parents to talk for a short while at 12:12 P.M. on landline phone and during the conversation, it was felt that she was feeling terrified and during the course of the conversation, the phone was snatched from her and that was disconnected and thereafter numerous attempts were made to contact the deceased Vanshika and accused persons but that was in vain and ultimately, at 8:45 P.M., respondent no. 3 casually informed that he had killed Vanshika and fatally shot Monish Tehliani and as a result Vanshika died and the daughter of Vanshika, Monish Tehliani succumbed injuries. As the accused are very influential persons of the city and thus under their pressure, the Police was avoiding to lodge the First Information Report of the incident. The investigation was transferred multiple times and thereafter the charge-sheet was filed and the trial proceeded any how.
8. Further, on 02.09.2022, the applicants showing them as victim filed an application to represent themselves through their counsel before the trial Court which was allowed on 14.12.2022 and thereafter on several dates, the counsel of the victims/informants/applicants made submissions on 06.01.2023, 18.01.2023 and 21.01.2023 to 25.01.2023 and on 08.02.2023, and liberty was also given by the Trial Court to the counsel for the applicants/victims to file written submissions and the written submissions were also filed thereof and that was taken on record. On 13.02.2023, once the accused persons have failed to make hindrance regarding the submissions, permitted to be advanced, they filed a frivolous transfer application before the learned District Judge which was rejected after hearing the counsel for the applicants/victims, thereafter on 21.02.2023, the accused persons filed Transfer Petition (Criminal) No. 10 of 2023 before the Hon'ble High Court which was also rejected after hearing the counsel for the victims/applicants and the matter was remanded back to the learned District Judge unequivocally directing that the transfer petition shall be decided after hearing the counsel for the victims/informants and on 28.02.2023, after hearing the parties, the District Judge rejected the transfer petition of the accused-respondents and in between the predecessor Judge was transferred and the matter was required to be re-heard and when on 08.05.2023, the counsel for the victims/informants/applicants appeared and requested for advancement of his arguments, he was orally denied, though learned ADGC (Criminal) verbally expressed that he has no objection if the counsel for the victims/applicants is heard and thus, on the same day an application was also moved by the applicants praying therein that they may be granted opportunity of hearing through their counsels to appear in the final hearing and address the Court, whereafter on 15.05.2023 no objections were filed by the prosecution and the victims/applicants filed written submissions in support of his application dated 08.05.2023 and the objections were again invited and on 23.05.2023, the learned ADGC (Criminal) endorsed no objection for victims/applicants being granted an opportunity of hearing on the application dated 8.05.2023 and thereafter on 26.05.2023, the learned Trial Court passed the order impugned and refused to afford an opportunity of hearing to the applicants/victims in Session Trial No. 375 of 2007 on the premises that the applicants are strangers and have no right of being heard.
9. Contention of the learned counsel for the applicants is that the applicant no.1 is a real uncle and applicant nos. 2 and 3 are the father and mother of the victim, i.e., deceased Vanshika and her female child and they come under the purview of the victim as has been defined under section 2(wa) of Cr.P.C. The applicant no. 1 is also the informant in the matter and he got registered the F.I.R. No. 25 of 2005, after the murder of his niece and daughter of niece. She submits that it has been a settled law that there is ample right to the victim to be heard as the victim is the de facto sufferer of a crime, and as such, the victim cannot be declined to participate in the adjudicatory process, as of now, the jurisprudence with respect to the right of the victim is positively involved in criminal proceeding and it has become a settled law that the victim cannot be denied to be heard. In support of her contention, she has placed reliance on a judgement rendered in 2015 SCC OnLine Del 9802 of High Court of Delhi, in case of Ram Phal Vs. State & Ors and has referred paragraph 52, 53, 54 of the aforesaid judgement, which reads as under:-
"52. As has been discussed above, Section 2(wa), in its definition of "victim", uses the phrase "means x and includes y". While Chattar Singh reasoned that "includes y" extends the ordinary meaning of the "[means] X", to cover things that would not otherwise be covered by an everyday meaning of "X", it interpreted the two parts of CRL.A.1415/2012 Page 34 the definition to include non-overlapping and mutually exclusive categories: "injury" being limited to the most direct and proximate sufferer of physical harm, and "legal heirs" covering the heirs entitled to succeed in personal law. A broader meaning of the word "victim", encompassing sufferers of emotional harm, would have necessitated an overlap between the two categories, since it is possible that a legal heir would also be a "victim", in the sense of having suffered a proximate mental injury as a result of the crime. This Court, therefore, does not agree with the decision in Chattar Singh that a Class II heir can be excluded by a Class I heir, as a Class II heir may well have suffered "injury" that is emotional/mental, thus bringing him/her within the definition of "victim" itself. To permit such a victim to be excluded by a Class I heir would amount to letting those "included" within the definition, exclude those falling within the ordinary and natural meaning of the word defined. The Court therefore cannot agree with the analysis in Chattar Singh that treats the hierarchy of "legal heirs" in personal law as solely determinative of who may qualify as a "victim" simpliciter, in the absence of which, a victim by inclusion. Subject to this, we are in agreement with the submissions of the learned Amicus, and with the judgment of the Punjab & Haryana High Court, that the meaning of "legal heirs" refers to all heirs designated as such by the relevant personal law, irrespective of whether or not they are excluded by the lines of succession at any given time.
53. To summarize, the conclusions from the above discussion are:
(i) "victim" in Section 2(wa), by virtue of being defined as "a person who has suffered any loss or injury" must include a person who has suffered „harm caused to the mind‟, given that Section 2(y) of the Code of Criminal Procedure incorporates the definition of "injury" in Section 44 of the IPC into the Code.
(ii) The "means X and includes Y" clause in Section 2 (wa) cannot be interpreted so as to result in the included meaning Y excluding the actual meaning X of the term being defined; thus "legal heirs" who are included within the definition of the term „victim‟ cannot exclude those who CRL.A.1415/2012 Page 35 actually fall within the definition of „victim‟ by virtue of emotional harm suffered, such as the father or siblings of a deceased victim or other categories of persons (based on proximity) noted previously .
(iii) The laws of inheritance, which decide one‟s "legal heirs", are not intended to be solely determinative of the entitlement to exercise the rights of the victim, in the criminal trial/appeal, on his/her death, application of Heydon‟s mischief rule, given that the object of the 2008 Amendment Act was to ensure the involvement of the victim, who has a presumably personal interest in the fair and efficient prosecution of the trial/appeal. Resultantly, it is impermissible for an appellate court to shut out an appeal by a "legal heir" based only on her/his not being an immediate heir, or being lower down in hierarchy vis-à-vis entitlement to the crime victim‟s estate.
54. As a concluding remark on the specter of uncertainty (of defending multiple appeals) which would possibly hover over, and weigh down those acquitted of offences goes, this Court is in agreement with the view of the Punjab and Haryana High Court that all such „victims‟ or „legal heirs‟ appeals would be heard together, and the issue can be resolved by proper docket management. The court is reminded of the view in Pakala Narayana Swamy v. Emperor AIR 1939 PC 47 that "... in truth when the meaning of words is plain, it is not the duty of the Courts to busy themselves with supposed intentions" - and one may add in the context, imagined difficulties. "
10. Placing reliance on the above said judgement, she submits that it has been very minutely interpreted that who is the victim and whether the legal heirs termed as Class I and Class II heirs, have any difference in the meaning in context to Section 2(wa) of Cr.P.C. It has very categorically been held that there cannot be any difference so far as the victim defined under section 2(wa) of Cr.P.C, with respect to Class I and Class II heirs as there might be more emotional attachment of a Class II heir to the deceased/victim and he or she can suffer injury than a heir of Class I category. If a person who has suffered harm to his mind, that covers definition of 'injury' which has been defined under section 44 of IPC.
11. She has further placed reliance on the judgement reported in (2022) 9 SCC 321, Jagjeet Singh and Others Vs. Ashish Mishra @ Monu and Another and has referred to paragraph 22 and 25 which are read as under :-
"22. It cannot be gainsaid that the right of a victim under the amended Cr.P.C. are substantive, enforceable, and are another facet of human rights. The victim's right, therefore, cannot be termed or construed restrictively like a brutum fulmen. We reiterate that these rights are totally independent, incomparable, and are not accessory or auxiliary to those of the State under the Cr.P.C. The presence of 'State' in the proceedings, therefore, does not tantamount to according a hearing to a 'victim' of the crime.
25. Adverting to the case at hand, we are constrained to express our disappointment with the manner in which the High Court has failed to acknowledge the right of the victims. It is worth mentioning that, the complainant in FIR No. 219 of 2021, as well as the present Appellants, are close relatives of the farmers who have lost their lives in the incident dated 03.10.2021. The specific stance taken by learned Senior Counsel for the Appellants that the Counsel for the 'victims' had got disconnected from the online proceedings and could not make effective submissions before the High Court has not been controverted by the Respondents. Thereafter, an application seeking a rehearing on the ground that the 'victims' could not participate in the proceedings was also moved but it appears that the same was not considered by the High Court while granting bail to the Respondent-Accused."
12. Referring the aforesaid, she submits that the Apex Court has settled the law so far as the right of the legal heirs of the victim is concerned and it has spoken in so many words that the victim including the legal heirs has a legal vested right to be heard at every step, post the occurrence of the offence, and that is the unbridled participatory right from the step of investigation to the culmination of the proceeding in an appeal or revision. It has also been held that even a stranger to the act of a crime can be an informant and similarly the victim need not be the complainant or informant of a felony.
13. Adding her argument, she submits that statutory mandate of section 326 of Cr.P.C clearly provides that the trial Court is under statutory obligation to continue the trial from where it was stopped by his predecessor Judge and therefore once the predecessor Judge allowed the applicants/victims to participate in the proceedings, they cannot be stopped to further participate in the proceedings as the same would be amount to revise/review the orders already passed.
14. Further contending that the findings with respect to the fact that the learned ADGC (Criminal) opposed the application of the applicants, is perverse as it is apparent from the record that learned ADGC (Criminal) has already endorsed 'no objection' to the applicant's counsel for being heard in the matter, which clearly shows the maliciousness and biasness of the Presiding Officer. She submits that refusing the applicants to appear in the trial proceeding is against the law of the land as the Hon'ble Apex Court in a very recent judgement has held that the victim has ample right to be heard in the criminal proceeding started from investigation to the stage of culmination. She further added that the impugned order by which the opportunity of hearing to the applicants have been denied, is not only erroneous but also against the settled proposition of law and is also a judicial indiscipline.
15. She further argued that it is in fact the influence of the private respondents, being an old family of Lucknow, exercises a lot of clout in the city have not only influenced the investigation, but thereafter they are making every endeavor to supress the free and fair adjudication of the matter at every step. This fortifies that while lodging the First Information Report, the applicants faced a lot and after a week, the First Information Report was registered after several efforts made by the applicants.
16. Concluding her arguments, she submits that the impugned order is pedantic, perverse and shocks the conscience of justice and further it is a denial of right of hearing to the applicants which is against the law settled by the Apex Court and therefore the submission is that the impugned order dated 26th May, 2023 passed on the application of the applicant, in Sessions trial number 375 of 2007, may be set-aside.
17. Per contra, learned AGA appearing for the state has vehmently opposed the contentions aforesaid and submits that admittedly, the First Information Report was lodged by the applicant no.1, who is the uncle of the deceased Vanshika. He submits that the victim has a right to participate in the criminal proceedings, which has been defined under section 2(wa) of Cr.P.C and from bare reading of the aforesaid it is apparent that victim includes his or her 'guardian' or 'legal heirs' and as the father and mother, i.e., the applicant no. 2 and 3 of the deceased Vanshika, are still alive but the First Information Report was lodged by the uncle of the deceased and therefore, he did not come under the purview of the definition given under section 2(wa) of Cr.P.C.
18. Adding his argument, he has placed reliance on full bench judgement reported in (2016) 97 ACC 861 (FB), Manoj Kumar Singh Vs. State of U.P. and others and has referred paragraphs 68 and 69 of the judgement, which are quoted hereinunder:-
"68. From the discussions that have been made above, it is clear that the proviso of Section 372 is an exception to the general law and same confers on a victim a right to appeal against acquittal, which is subject to the grant of leave by the Court. The first part of the definition of 'victim' as given under Section 2 (wa) (i.e. "Victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged), is required to be construed in its literal sense and no liberal interpretation is required, Accordingly, only such person would be treated as ''victim', who is the subject-matter of trial being direct sufferer of crime in terms of loss or injury caused to his own body, mind, reputation and property and such loss or injury is one of the ingredient of the offence for which the accused person has been charged and, therefore, any other person cannot be accepted as victim within the first part of Section 2 (wa) for the purposes of maintaining appeal. The second part that is "includes his or her guardian and Legal Heir" would come into play when the actual sufferer is absent or suffers disability.
69. In other words, victim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him /her right to prefer appeal under the proviso of section 372, though, in his or her absence or disability, his "legal heir" or "guardian" would qualify as victim and have a right to appeal. A person who claims himself to be 'guardian' or 'legal heir' of actual victim (direct sufferer), would be able to maintain appeal provided he establishes his claim as such before the court in his application by disclosing his particulars; relationship with the direct sufferer; and the grounds on which such claim of being "legal heir" or "guardian" is based. In the light of the discussion made above, the ratio of Division Bench of this Court in the case of Edal Singh (supra) is in tune with the definition of 'victim' as provided under Section 2 (wa) of the Code of Criminal Procedure. The reference is answered accordingly."
19. Referring to aforesaid, he submits that a full Bench of this Court has very categorically held that no liberal interpretation of the word 'victim' requires as only such person would be treated as victim who is the subject matter of trial being 'direct sufferer of crime' in terms of 'injury' caused to his own body, mind, reputation and property and such loss or injury is one of the ingredients of the offence for which the accused persons have been charged and thus it has been summarized that the victim himself is the actual sufferer of the offence and the guardian or legal heir would come into play when actual sufferer is absent or suffers disability.
20. He further added that since the applicant no.1 is the uncle of the deceased, and the parents are still alive and no cogent reason has been given that why they are not approaching this Court and therefore the uncle has no right to say that he is the legal heir/guardian of the victim.
21. Further argued that once the matter came up before the present Presiding Officer, he considered the application and has rejected the same as he found that this is being done for delay dallying tactics. Whereas the trial is on its final stage and allowing any person without being his or her the guardian or legal heir, can not be justifiable and therefore the learned Trial Court has rightly passed the order dated 26.05.2023 and there is no erroneousness or any perversity and as such the present applicants are not entitled for any relief.
22. Having heard the counsel for the parties and after perusal of the material placed on record, it emerges that the marriage of the deceased Vanshika was solemnized on 25 April 2001 at Lucknow with respondent no.3, namely Sumit Tehliani, and after the marriage, the private respondent started demanding dowry and they tortured the deceased. Thereafter, in case of non-payment of dowry, the torture reached its climax and the deceased Vanshika and her one and half year female child were shot dead, and hardly it was intimated to the family member. It also reveals that the First Information Report was lodged after 8-9 days as the respondents/accused persons were said to be very influential persons, being an old family at Lucknow and after running pillar to post they could succeed to get the First Information Report registered.
23. Further, the fact remains that the predecessor judge allowed the applicants/victims to participate in the trial proceeding and for a long period of time the applicants participated through their counsels and thereafter when another Presiding Officer started trial, the applicants were stopped orally to participate and then an application was moved wherein the ADGC (Criminal) has accorded his no objection and even no objection has also been given on the written submission moved by the applicants, but on 26.05.2023, the applicants were refused to afford opportunity of hearing on the ground that they are the stranger to the crime, and has no right to being heard in the matter.
24. Now culminating the submissions of the parties and going through the facts, three questions are cropped up; Firstly, whether the applicants are the legal heirs as per the definition of victim given under section 2(wa) of CrPC? Secondly, whether the legal heirs/guardians of the victim have right to participate in the trial proceedings? Thirdly, whether the subsequent Presiding Officer had a right to review/revise/revisit the order passed by the Predecessor Judge?
25. So far as the first question is concerned, it would be relevant to go through the definition of 'victim' as envisaged under section 2(wa) of CrPC. Section 2(wa) of CrPC read as under:-
"'victim' means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir."
26. The definition says that victim means a person who has suffered any loss or injury caused by accused person and that includes his or her guardian or legal heirs. So far as the injury is concerned that is defined under section 44 of IPC and the reference of the same can be taken as per the provision of section 2(y) of CrPC. Injury as has been defined in section 44 IPC is read as under:-
"the word "Injury" denotes any harm whatever illegally caused to any person, in body, mind, reputation or property."
27. From perusal of the definition of injury, it's clear that injury denotes any harm, illegally caused to any person, in mind, body, reputation or property. The case in hand is that the death of niece was caused by respondent no.3 and the other co-accused persons by shooting her dead. Niece, Vanshika lived with her uncle for a long period of time at Delhi as the family of the applicants are a joint family. Not only the niece was shot dead but her one and half year female child Monisha was succumbed to injuries after three days of the incident. Naturally, this incident would have caused harm in the mind of the uncle of the deceased and thus this can be termed that the applicant no. 1 is also a victim in terms of the definition given in section 2(wa) of CrPC as it has been said that a person who has suffered loss or injury by accused person, would be a victim and victim includes his or her guardian or legal heirs. In this view, it can be said at first hand that the uncle who is the applicant no. 1, suffered injuries, which harmed his mind and thus being a guardian he is a victim of the incident.
28. It is a trite law that victim has a legal vested right to be heard at every step, post the occurrence of an offence and the victim has participation right from the stage of investigation till the culmination of proceeding in an appeal or revision. As such, it is a binding law on all Courts of this country, and therefore the question no.1 is answered affirmatively, that the victim has every right to participate in a criminal proceeding starting from the stage of investigation till appeal or revision reaches to its finality.
29. The next question is also related to the first question to some extent that whether the applicant number no.1, who is the uncle of the deceased, has a right to participate in the trial proceedings, and if it is looked into in purview of the definition of victim and be examined in the four corners of the definition, it emerges that the deceased is the niece of the applicant no. 1 and she was living with the applicant no.1 at Delhi for considerable period of time. Therefore, there must be some emotional relation in between the applicant no.1 and the deceased namely Vanshika, and it is a natural consequence that if a human is affectionate with some other and something happens with other side, there must be injury in the mind of such person and therefore this cannot be refuted in the present scenario, also as the applicant no. 1 is uncle and the deceased was living with him and once she was shot dead, there would have been mental agony and harm in the mind of the applicant no. 1 and therefore, undoubtedly he must come under the purview of definition of victim as has been envisaged under section 2(wa) of CrPC and thus, the second question is also answered positively.
30. So far as the third question with respect to jurisdiction of a Criminal Court in a criminal proceeding for revising or reviewing the judgement or order is concerned, the law is well settled that such an order or judgement cannot be revised by the same court unless otherwise provided in any law time being in forced or any direction or order passed by the superior courts and in the present matter in absence of any such provisions or directions, the learned Sessions Court had no power to revisit/revise the order passed by the predecessor judge, while accepting the application of the applicant for allowing him to participate in the trial proceedings.
31. In view of the above said submissions and discussions as well as the law laid down by the Apex Court, there is merit in the instant application. Resultantly, the impugned order dated 26.05.2023 passed by Additional Sessions Judge - IV, Lucknow in S.T. No. 375 of 2007 arising out of Case Crime No. 25 of 2005 is here by set-aside.
32. The learned Trial court is directed to act upon as per the earlier order of the predecessor Judge by which the present applicants were allowed to appear through their counsels in the trial proceedings.
33. This court expects that the learned trial Court shall positively allow the applicants through their counsel in the trial proceeding and would try to conclude the trial.
34. Further, the applicants are also directed, not to seek any adjournment and shall cooperate with the trial proceedings, by concluding their arguments at the earliest.
35. With the aforesaid observation and directions, the instant application is here by allowed.
Order Date :- 28.7.2023 Anurag