Law & Policy
The Victim in the Proviso: What the BNSS Gives a Person It Never Makes a Party
11 September 2026 · 18 min read
A criminal case carries two names. The State prosecutes; the accused defends. The person the case is actually about enters the record as a witness — a source of evidence, examined and cross-examined, whose interest in the outcome is not something the procedure has to attend to separately, because the State is taken to have absorbed that interest already.
That account has been under revision for some time. The Code of Criminal Procedure (Amendment) Act, 2008 — Act 5 of 2009 — whose relevant provisions were brought into force on 31 December 2009, inserted a definition of "victim" at Section 2(wa), a proviso to Section 24(8) permitting the victim to engage an advocate to assist the prosecution, a victim compensation scheme at Section 357A, and a proviso to Section 372 giving the victim a right of appeal. The Bharatiya Nagarik Suraksha Sanhita, 2023 carries all four forward and adds to them: a copy of the first information report, information about the progress of the investigation, the case papers, and a hearing before the prosecution can be withdrawn.
The additions are usually discussed as a question of sufficiency — whether they go far enough. That is not the question here. Read the provisions for their placement rather than their content and a consistent pattern appears, and the placement settles things the content does not.
Where the word appears
Across the Sanhita the word "victim" does operative work in fifteen of its sections.
It is defined in Section 2(1)(y). It appears in the proviso to Section 18(8), which permits the Court to allow the victim to engage an advocate to assist the prosecution. It appears in Section 173(2), which requires a copy of the first information report to be given free of cost "to the informant or the victim". It appears in the second proviso to Section 176(1), on where and by whom the statement of a victim of rape is to be recorded, and in Section 184, on her medical examination. It appears in Section 193(3)(ii), which requires the police officer to inform the progress of the investigation within ninety days. It appears twice in Section 230, on the supply of copies of the police report and the documents accompanying it. It appears in the second proviso to Section 232, which requires an application filed before the Magistrate by the accused or the victim to be forwarded to the Court of Session with the committal. It appears in Sections 290, 291 and 293, in plea bargaining. It appears in the second proviso to Section 360, on withdrawal from prosecution. It has Sections 396 and 397 to itself — the compensation scheme, and the duty of hospitals to treat. And it appears in the proviso to Section 413, which is the right of appeal.
Three sections carry the word in their own marginal headings: "Medical examination of victim of rape", "Victim compensation scheme", and "Treatment of victims". All three are about the body and the money.
Everywhere else — the papers, the information, the advocate, the hearing, the appeal, everything that bears on how the case is conducted — the victim appears in a definition, a clause, or a proviso, inside a section whose subject is a police officer, a Magistrate, a Prosecutor or a Court. Not one of those has a section of its own, and not one is announced in a marginal heading.
A definition that confers nothing
Section 2(1)(y) reads: "'victim' means a person who has suffered any loss or injury caused by reason of the act or omission of the accused person and includes the guardian or legal heir of such victim".
Section 2(wa) of the Code had defined the same word as a person who had suffered loss or injury "caused by reason of the act or omission for which the accused person has been charged". The change is the deletion of the reference to the charge, and it is not a small one. Under the old definition the class was constituted by an act of the prosecuting authority: a person became a victim in law when somebody else was charged, and the question who the victim of an uncharged offence might be did not arise. Under the new one the class is constituted by what happened. A person who has suffered loss or injury by reason of the act or omission of the accused is a victim whether or not a charge has been framed — and, since Section 396(4) expressly contemplates compensation where the offender is never traced and no trial takes place, whether or not there is an accused before any court at all.
That is a real widening, and it does the work it was evidently meant to do at the compensation end. What it does not do is confer a position in the proceeding. Section 2 is a dictionary. It fixes the meaning of a word wherever the Sanhita uses it; it does not, and by its nature cannot, say what the person so described may do. The victim's capacity to act is exhausted by the specific provisions that name him. The Sanhita contains no general provision from which a right of audience at an unlisted stage could be drawn. Whether such a right can be derived from Article 21, or from a court's inherent power over its own procedure, is a separate question, and not one the text answers.
The definition also raises a question it does not answer. It includes "the guardian or legal heir of such victim" — not the guardian, and not a legal heir, but both nouns in the alternative, with no rule of priority and no provision for the case where two legal heirs take different views of whether the prosecution should be withdrawn or the acquittal appealed. Where a statute vests a right in a class it usually says how the class exercises it. Here the class is described and the question is left open.
The nouns are not one noun
The Sanhita does not use a single word for the person on the other side of the offence. It uses four different descriptions, and they are not defined to be coextensive.
Section 173(2) requires the copy of the first information report to be given "to the informant or the victim". Section 193(3)(ii) requires the progress of the investigation to be communicated "to the informant or the victim". The clause immediately following, Section 193(3)(iii), requires the action taken to be communicated to "the person, if any, by whom the information relating to the commission of the offence was first given" — a third formula, inside the same sub-section as the second. Section 290(4)(a), in plea bargaining, speaks of "the Public Prosecutor or the complainant of the case". And Section 483(2) provides that the presence of "the informant or any person authorised by him" shall be obligatory at the hearing of a bail application in respect of two specified offences under the Bharatiya Nyaya Sanhita, 2023.
Of those descriptions only "victim" is defined. Section 2(1)(h) defines "complaint"; it does not define "complainant", and "informant" is not defined anywhere. The result is that an entitlement attaches to a differently described person depending on which provision contains it. The person entitled to the first information report is the informant or the victim. The person whose presence is obligatory at a bail hearing is the informant. Where the first information was recorded on a police officer's own information, or on the report of somebody who happened to be present, those are not the same person.
This is not a slip that can be cured by reading "victim" wherever the Sanhita says "informant". The two words are used disjunctively in the same sentence in two places, which is intelligible only if they were understood to describe different people.
An entitlement that has to be bought
Section 230 requires the Magistrate, in a case instituted on a police report, to furnish "to the accused and the victim (if represented by an advocate) free of cost" a copy of the police report, the first information report, the statements under Section 180(3) of the persons the prosecution proposes to examine, the confessions and statements recorded under Section 183, and the other documents forwarded with the report. It fixes an outer limit: without delay, and in no case beyond fourteen days from the production or appearance of the accused.
The accused's entitlement is unconditional. The victim's is conditional on his being represented by an advocate. The parenthesis is repeated in the second proviso, so it is not an oversight in one place.
What makes the condition worth noticing is the provision that governs the advocate. The proviso to Section 18(8) reads: "Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section." The advocate is therefore not something the victim simply has. Engaging him requires the Court's permission, which is discretionary; the function permitted is described as assisting the prosecution, which is not the same as representing the victim; and the sub-section into which the proviso is inserted is about the appointment of Special Public Prosecutors by the Central or State Government, so the permitted advocate is placed, textually, alongside a State appointee rather than alongside the advocate for the accused.
Put the two provisions in sequence and the right to the case papers runs through a private engagement that the Court may or may not permit, and that the Sanhita describes as assistance rendered to somebody else. A victim without means does not reach the first step. The papers on which the prosecution will be conducted are, for him, not available at all — while the same papers go to the accused as of right, free of cost, and within fourteen days.
One smaller point about Section 230 deserves a line. Its marginal heading still reads "Supply to accused of copy of police report and other documents". The victim is in the operative text twice and in the heading not at all. A marginal heading is not the law, but it is what a practitioner scanning a contents page reads, and an entitlement invisible in the heading of the only section that contains it is an entitlement that will be missed.
Duties on officers, not rights in the victim
The grammar of these provisions is consistent, and it is not the grammar of rights.
Section 193(3)(ii): "the police officer shall, within a period of ninety days, inform the progress of the investigation". Section 230: "the Magistrate shall without delay, and in no case beyond fourteen days ... furnish to the accused and the victim". The second proviso to Section 360: "no Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case." The second proviso to Section 232: an application filed by the accused or the victim, or by any person authorised by either, "shall be forwarded to the Court of Session with the committal of the case". Section 397: "All hospitals ... shall immediately, provide the first-aid or medical treatment, free of cost".
Each of these is a command addressed to an officer or an institution. The victim is the person in relation to whom the duty is to be performed. He is the object of the sentence, not its subject.
There are two exceptions, and they are instructive. Section 396(4) provides that where the offender is not traced but the victim is identified and no trial takes place, "the victim or his dependents may make an application" for compensation. And the proviso to Section 413 provides that "the victim shall have a right to prefer an appeal". Those are the only two places in the Sanhita where the victim is given something he can do rather than something that is to be done for him — and both lie outside the trial: one where there is no trial at all, the other after it has ended.
The distinction is not academic. Where a statute casts a duty on an officer and says nothing about the consequence of breach, the person for whose benefit the duty exists has no evident means of pressing it within the proceeding. Section 193 specifies no consequence for a police officer who lets the ninety days pass without informing anyone of the progress of the investigation.
Section 230 is the exception that shows what the difference is worth. Section 232(a) directs the Magistrate to "commit, after complying with the provisions of section 230 or section 231, the case to the Court of Session". Compliance with Section 230 is therefore a textual precondition of the committal, not a parallel obligation — and Section 230 is the provision that requires the papers to be furnished to the victim's advocate as well as to the accused. A committal made without that compliance is a committal made without the step the Sanhita requires to precede it. That is the one duty in the set which the text itself attaches to an identifiable consequence, and it got there not because the victim was given a right but because the duty happened to be wired into a section about something else.
The stages that are left out
Read the entitlements as a list and they look like a movement towards participation. Read them against the stages of a criminal case and what stands out is which stages are not on the list.
The victim is heard before the prosecution may be withdrawn, under the second proviso to Section 360. He is not heard on bail — except that for offences under Section 65 or sub-section (2) of Section 70 of the Bharatiya Nyaya Sanhita, Section 483(2) makes the presence of the informant obligatory. He is not heard on an application for discharge under Section 250, nor at the framing of charge under Section 251, nor on the quantum of sentence.
The exception is plea bargaining, and it runs the other way. Section 291 requires the Court, in a case instituted on a police report, to issue notice to the Public Prosecutor, the investigating officer, the accused and the victim to participate in the meeting at which a mutually satisfactory disposition is worked out; in a complaint case, notice goes to the accused and the victim alone. Section 291(b) permits the victim, if he so desires, to participate with his advocate engaged in the case. Section 292 requires the report of the disposition to be signed by the presiding officer and by all the other persons who participated. A signature on the document that disposes of the case is the strongest form of participation the Sanhita gives the victim anywhere — and it is confined to the one chapter in which the accused has applied to plead guilty. Even there the drafting is not quite settled: Section 290(4)(a) describes the time as being given to "the Public Prosecutor or the complainant of the case and the accused" to work out the disposition, and does not name the victim among them, while Section 291 requires him to be noticed to the meeting at which they do it.
The omission that can be stated most precisely is at the appeal stage. The proviso to Section 413 gives the victim a right of appeal against an order "acquitting the accused or convicting for a lesser offence or imposing inadequate compensation". Inadequacy of sentence is not in the list. An appeal against a sentence on the ground of its inadequacy is dealt with separately, in Section 418, and it belongs to the State Government — or, where the offence was investigated under a Central Act, the Central Government — which may direct the Public Prosecutor to present it. A victim who accepts that the accused was convicted of the right offence but considers the sentence far too light has nothing under the proviso. The inadequacy of his compensation, which is in the list, he may appeal; the inadequacy of the punishment, which is not, is the State's business.
That combination is a decision about what the victim's interest is taken to consist of. Compensation is his. Punishment is not.
What the proviso did not say, and still does not
The proviso to Section 413 is a word-for-word re-enactment of the proviso inserted into Section 372 of the Code in 2009. It says who may appeal, against what, and to which court. It says nothing about how.
In Mallikarjun Kodagali (Dead) through Legal Representatives v. State of Karnataka, decided on 12 October 2018, a two-Judge Bench of the Supreme Court differed on one consequence of that silence. The question was whether a victim appealing to the High Court against an acquittal under the proviso to Section 372 must first obtain leave to appeal under Section 378(3), the provision requiring leave for an appeal against acquittal presented at the State's instance. Lokur J. answered that question in the negative, observing that the proviso lays down no procedure as to how, in what manner or within what time the appeal is to be filed. Deepak Gupta J. took the contrary view, holding that a victim appealing against an acquittal in the High Court has to seek leave under Section 378(3). The appeals were allowed and the matter was remitted to the High Court for hearing on merits.
Both of the provisions that produced the division survive in the Sanhita unchanged in substance. The proviso is now the proviso to Section 413. The leave requirement is now Section 419(3). And Section 419(4), like Section 378(4) before it, retains the older route by which a private person could challenge an acquittal — special leave to appeal, available to the complainant in a case instituted upon complaint, on an application which Section 419(5) requires to be made within sixty days, or six months where the complainant is a public servant.
So the Sanhita now contains two routes by which a person who is not the State may appeal against an acquittal. One is open to the complainant in a complaint case, requires special leave, and carries an express outer limit. The other is open to the victim in any case, and the text states neither a leave requirement nor a period of limitation. Whether the first conditions the second is the question on which the Bench divided in 2018, and the 2023 enactment reproduces both provisions without addressing it.
What the shape decides
Take the placement seriously and the Sanhita's position turns out to be reasonably coherent. The victim is not a party. He is the beneficiary of duties which the Sanhita casts on the officers who conduct the case, together with two rights exercisable outside the trial and a seat at the table in the one procedure where the accused has admitted the offence.
There is a respectable argument for building it that way. A public prosecutor exists so that the injured party does not have to prosecute — so that the outcome of a criminal case does not turn on the means, the persistence or the survival of the person injured, and so that the accused faces one adversary rather than two. A victim admitted as a party would have to be given the powers of a party, and those powers would then be distributed among victims according to what each could afford. Keeping the victim outside the party structure and loading duties instead onto the State's own officers is a defensible way of protecting the interest without privatising the prosecution.
But the Sanhita does not hold that line. The two entitlements that matter most while the case is still open — the papers and an advocate — are the two that depend on the victim's means, because Section 230 supplies the papers only to a victim who is represented and the proviso to Section 18(8) makes the representation a matter of the Court's permission. Those two provisions reintroduce exactly the inequality that the public prosecutor was there to remove, and they do it at the only stage where anything can still be affected.
For a file, the working consequence is narrow and worth stating plainly. There is no general standing to invoke. An application made on behalf of a victim has to be anchored to a named provision and to the duty it casts on a named officer — the copy under Section 173(2), the progress report under Section 193(3)(ii), the documents under Section 230, the hearing under the second proviso to Section 360, the forwarding under the second proviso to Section 232 — because there is nothing behind those provisions to fall back on if the one relied upon does not fit. And where what is relied upon is one of the duties rather than one of the two rights, the application has to say what the Court is being asked to do about the breach. On that, the Sanhita is silent everywhere except Section 232(a).
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.