Delhi District Court
Agnesh Mampi D vs State on 29 January, 2024
IN THE COURT OF SH NAVJEET BUDHIRAJA,
ADDITIONAL SESSIONS JUDGE-02, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL REVISION PETITION NO. 269/2023
CNR NO. DLST01-006715-2023
IN THE MATTER OF
Agnesh Mampi D
D/o Mr. Ramesh Dass
Reside of House No.E-96
Devli Apartment, Devli Village
New Delhi
........ Revisionist
Versus
(1) State
(2) Ankit Chaudhary
S/o Sh. Sanjay Chaudhary
R/o H. No. E-92
Devli Apartment, Devli Village,
New Delhi
(3) Sanjay Chaudhary
S/o Ranbir
R/o H. No. E-92
Devli Apartment, Devli Village
New Delhi
........ Respondents
DATE OF INSTITUTION : 17.07.2023
DATE OF RESERVING ORDER : 22.01.2024
DATE OF PRONOUNCEMENT : 29.01.2024
JUDGMENT
Vide this judgment, I shall dispose of the present revision petition filed on behalf of the revisionist Agnesh Mampi D against the impugned Order dated 25.05.2023 pronounced by Ms. Deeksha Madaan, Ld. MM, Mahila Courts, Saket Courts, Pg No. 1 of 8 New Delhi (Ld. MM) in case FIR no.302/2021 PS Neb Sarai State Vs. Ankit Chaudhary and Ors.
2. The present revision petition impugns the order dated 25.05.2023 on the premise that, on that day, the counsel for the revisionist had reached the court sharp at 10.00 AM. However, it was informed that Ld. MM had proceeded on last minute short Leave, which was not even updated till the court timing on the said date. As the court was not sitting, counsel had left for other court with a request that the matter be passed over for post lunch hours and the application of the petitioner for production of the material that had been pending for almost an year may be argued and decided. However, Ld. MM did not deem it fit to grant pass over in the matter and went on to pass observations which was unfortunate and complete misrepresentation of facts. Furthermore, as such, that the revisionist did not appear on 20.04.2023 and 16.01.2023 are also completely untenable. It is further stated that on 16.01.2023, the counsel for the revisionist was suffering from Swine Flu and medical documents of the same from the renowned Fortis Hospital, Gurgaon were also placed on court file much prior to the impugned order. It is further stated that the Ld. MM also made an observation of the limited role of the revisionist's counsel in assisting the Assistant Public Prosecutor (APP) in the said matter, which assertion is also beyond the settled law, as the counsel for the revisionist in the matter related to outraging the modesty of a woman has full Pg No. 2 of 8 right of participation, which right was again curtailed.
3. In reply to the aforesaid petition, on behalf of the respondent, it is stated that the impugned order dated 25.05.2023 has no bearing on the merits of the case and the revision is devoid of any substance.
4. I have heard the rival contentions on behalf of the revisionist by her counsel Sh. Suhail Sehgal and on behalf of the respondent no.1 and 2 by their counsel Sh. Praveen Sarwaria.
5. The present revision petition primarily takes umbrage to the observations made by Ld. MM in the impugned order dated 25.05.2023, the operative part of which is as under:
"The proxy counsel for the complainant is apprised not to unnecessarily seek passovers without even being cognizant of the reason for which he is seeking a passover. It is made clear to the complainant that no party has an indefeasible right upon the time of the court and passover is not a matter of right of any party. The complainant's counsel cannot keep the accused waiting till his appearance, especially when it is not even a complainant's case and it is a State case where the Ld. APP on every date is present, but the complainant's counsel is desirous of a passover and is not appearing on the first call as is also reflected from orders dated 20.04.2023 and 16.01.2023. Proxy Pg No. 3 of 8 counsel has further been apprised that the complainant's counsel is only having a limited role of assisting the Ld. APP in State matters. Despite the same, applications are moved on behalf of the complainant without those being forwarded by Ld. APP for the State and passovers are sought to address arguments upon the same.
Accordingly, the passover stands declined as there is no purpose shown for grant of such passover. The complainant or complainant's counsel is directed to remain present in time on future dates when the matter is called as per the Cause List and not to seek passovers on every date."
6. As such, the aforesaid extract of the order does not decide any application pertaining to the FIR in question, but reflect certain observations touching upon the rights of the victim. However, in my opinion, tone and tenor of the order could have been restrained. Ld. MM has observed that no party has an indefeasible right upon the time of the court and pass over is not a matter of right for any party. However, the courts are expect to remain cognizant of the fact that the advocates may have their matters listed in different courts and certainly they cannot attend to all the matters at the same time and it is inevitable for them to seek pass over in some cases as per the convenience of the courts but there cannot be any blanket ban for the parties/counsels not to seek pass over and, therefore, to that extent, the observation of Ld. MM is not correct, particularly Pg No. 4 of 8 when the impugned order is silent as to the time when the pass over was sought on behalf of the revisionist.
7. The impugned order further reflects that pass over was sought for 02:30pm, to which request, it appears from the order that Ld. MM had not acceded to but again the order is silent as to whether Ld. MM was occupied with some other matter at that time which could have pre-empted her from giving pass over in the said matter.
8. In regard to the other part of the observations made in the impugned order, the revisionist has taken exception to the fact that complainant does not have a limited role in assisting the State but rather can actively participate in the trial. In this regard, Ld. counsel for revisionist has referred to Jagjeet Singh and Ors Vs. Ashish Mishra and Another, MANU/SC/0491/22.
9. The legal position in regard to the victim's right to be heard has been crystallized by the Supreme Court in the aforesaid judgment in following words:
"16. Until recently, criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the Page | 8 accused and the State. The 'victim' -- the de facto sufferer of a crime had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator. However, with the recognition that the ethos of criminal justice dispensation to Pg No. 5 of 8 prevent and punish 'crime' had surreptitiously turned its back on the 'victim', the jurisprudence with respect to the rights of victims to be heard and to participate in criminal proceedings began to positively evolve.
......
19. On the domestic front, recent amendments to the Cr.P.C. have recognised a victim's rights in the Indian criminal justice system. The genesis of such rights lies in the 154 th Report of the Law Commission of India, wherein, radical recommendations on the aspect of compensatory justice to a victim under a compensation scheme were made. Thereafter, a Committee on the Reforms of Criminal Justice System in its Report in 2003, suggested ways and means to develop a cohesive system in which all parts are to work in coordination to achieve the common goal of restoring the lost confidence of the people in the criminal justice system. The Committee recommended the Union, 2011. Page | 10 rights of the victim or his/her legal representative "to be impleaded as a party in every criminal proceeding where the charges punishable with seven years' imprisonment or more".
20. It was further recommended that the victim be armed with a right to be represented by an advocate of his/her choice, and if he/she is not in a position to afford the same, to provide an advocate at the State's expense. The victim's right to participate in criminal trial and his/her right to know the status of investigation, and take Pg No. 6 of 8 necessary steps, or to be heard at every crucial stage of the criminal proceedings, including at the time of grant or cancellation of bail, were also duly recognised by the Committee. Repeated judicial intervention, coupled with the recommendations made from time to time as briefly noticed above, prompted the Parliament to bring into force the Code of Criminal Procedure (Amendment) Act, 2008, which not only inserted the definition of a 'victim' under Section 2 (wa) but also statutorily recognised various rights of such victims at different stages of trial.
.....
23. 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."
10. The golden thread which can be culled out from the afore-mentioned judgment is that the victim falls in the category of a prime stake holder in any criminal trial and has every right to participate, to know the status of the investigation, and take necessary steps, to be heard at every crucial stage of the proceeding etc. It can also be deduced from above that these Pg No. 7 of 8 rights of the victim are not ancillary to those of the state. In the light of this legal position, the observation of Ld. MM in the impugned order that it is not the complainant's case and that the complainant's counsel has only a limited role of assisting the Ld. APP in State matter are not correct and liable to be struck down.
11. In so far as the observation of the application being moved on behalf of the complainant without being forwarded by Ld. APP for the State, the same is a matter of procedure and since the state is at the forefront of any inquiry and trial into the criminal offence as per the statute, in order to eschew the conflict of interest, as a matter of propriety, the application on behalf of the complainant may be required to be moved/forwarded through the state counsel.
12. To the aforesaid extent, the present revision stands allowed and observations made in the impugned order are shot down. Ld. MM is directed to expedite the disposal of the pending application of the revisionist after giving effective hearing to the revisionist and the respondents. Trial court record be sent back to the concerned court before the date fixed. Revision file be consigned to record room. PRONOUNCED IN OPEN COURT ON 29.01.2024 (Navjeet Budhiraja) ASJ-02, South District Saket Courts, New Delhi Pg No. 8 of 8