Tuesday, February 7, 2023

Victim cannot be party to revision petition before Session’s Court: Delhi HC

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The Delhi High Court has held that a victim cannot be a party to the revision petition before the Session’s Court, while setting aside the Revisional Court order, which had directed the accused to implead the complainant defacto as respondent no 2 in his criminal revision. 

A Single-Judge Bench of Justice Yogesh Khanna said, “Section 401(2) of CrPC does not give any right to the complainant to be heard in revision before the Session’s Court. Hence, the order suffers from illegality.” 

The Court also denied the argument put forward by the respondent/complainant that the “power of revision, admittedly, is a suo motu power of correction and supervision over the subordinate courts; to call for records and to correct orders. One can say it is the discretion of the revisional court to hear any one whom it needs to hear.”

The Court said, “No doubt, when this Court has to deal with the revision under Section 482 CrPC, the victim can, of course, join the proceedings, but this position of law is different in revision before the Session’s Court, viz in a State case because of bar under Section 401(2) CrPC.”

According to Section 401(2) and 403 CrPC, “No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. Save as otherwise expressly provided by this Code, no party has any right to be heard either personally or by pleader before any Court exercising its powers of revision; but the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader.”

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Justice Khanna said, “A bare perusal of Section 401(2) CrPC would show other person must be akin to an accused who can participate in the proceedings. The phrase in his own defence in clause 2 of Section 401 CrPC strengthens this belief. The complainant is never heard in his defence and hence the word ‘other person’ referred to in Section 401 CrPC is a person akin or similarly placed to an accused. Section 403 CrPC is also to be read in consonance with Section 401 CrPC as it starts with the word otherwise expressly provided by this Code.

“Other person does not include a complainant in revision. This is a State prosecution and at the highest the complainant can be a witness to the proceedings and can participate through learned APP for the State, but cannot be a party to the revision petition. The judgements relied upon by the respondents did not consider A. K. Subhaiah’s. I agree with the petitioner if we allow the complainant to participate before the Session’s it shall change the entire nature of the proceedings from criminal to civil and hence shall hamper independence of prosecution. The complainant can at best assist the prosecution, though prosecution in such a case has to make an independent call.”

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“The power under Section 482 CrPC is quite different than the one under Section 401 CrPC as nothing limits such power of the Court under Section 482 CrPC and it is far wider than under Section 401(2) CrPC, but the Session’s Court does not have such parallel power and it cannot implead anyone, except those mentioned under Section 401(2) CrPC,” the Court noted in its order. 

It set aside the order passed by the Revisional Court. However, it said that this shall not disentitle the complainant to appear before the Revisional Court in the pending revision petitions and to assist the APP for the State and/or plead their case through the APP.

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