"Though it is the responsibility of the state to bring the accused to law but in such process the actual sufferer of crime cannot be permitted to stay outside the law and to watch the proceedings from hindsight. It will be travesty of justice if the victims of such heinous crime are denied right to address their grievances before the courts of law."

Yes, this is exactly what the Division Bench of Madhya Pradesh High Court has held right at the very outset while delivering its landmark judgment on July 18, 2018 in the landmark case of Mahesh Pahade vs State of MP in Criminal Appeal No. 933/2014 (Order on 1A No. 6367/2017) and very rightly so! While holding this in no uncertain terms it relied upon Declaration of "Basic Principles of Justice of Victim for Crime and Abuse of Power" which was adopted in the 96th plenary meeting of the General Assembly on 29th November 1985. This is truly laudable!

Needless to say, a Bench of Madhya Pradesh High Court comprising of Chief Justice Hemant Gupta and Justice Vijay Kumar Shukla held thus while considering the maintainability of an application seeking cancellation of an order of suspension of sentence filed by the victim in the criminal appeal preferred by the convict. The accused, who was convicted by the trial court for sexually exploiting his niece, had preferred appeal before the high court. The application filed by the accused seeking suspension of sentence was allowed by the high court.

Going forward, the victim, then approached the high court contending that he was granted bail on the basis of additional document, which could not have been taken into consideration at the stage of consideration of the application for suspension of sentence and that too without giving any opportunity to the victim to controvert the allegation, which was pertaining to the age of the prosecutrix. The counsel for the accused-appellant questioned the very maintainability of such an application by the prosecutrix contending that even if a victim has been given right to file an appeal against an order of acquittal in terms of proviso to Section 372 of the Code, she does not become entitled to seek cancellation of bail. To buttress its stand, a recent judgment by the Apex Court in The High Court of Judicature of Hyderabad For The State of Telangana And the State of Andhra Pradesh vs Mahabunisa Begum & Others was also cited in support of its arguments. It was also contended that only the public prosecutor can file an application for cancellation of bail.

To be sure, Chief Justice Hemant Gupta notes at the outset that, "The application (I.A. No. 6367/2017) is for cancellation of bail granted to the appellant on 09.12.2016 under Section 389 of the Code of Criminal Procedure, 1973 (for short "the Code") on behalf of the prosecutrix. Further, in para 2, it is observed that, "The present appeal arises out of a judgment passed by the learned Sessions Judge, Mandla on 10.02.2014 convicting the appellant for an offence punishable under Section 376(2)(n) of the Indian Penal Code, 1860 (for short "the IPC") and Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced him to suffer imprisonment for life for an offence under Section 376(2)(n) of the IPC and fine of Rs 20,000/- in default of payment of fine, to further undergo rigorous imprisonment for two years."

Moving ahead, in para 3 it is pointed out that, "The allegation against the appellant is that he exploited the prosecutrix of 14 ½ years of age from October, 2010 to 10th February, 2013. The appellant is related to the prosecutrix being his uncle. The accused was a visitor to the father of the prosecutrix at their house and used fiduciary relationship to sexually exploit her. The learned Trial Court convicted the appellant for the offences charged and sentenced the appellant in the manner indicated hereinabove." Also, it is brought out in para 4 that, "While considering the third application for suspension of sentence, this Court passed an order on 09.12.2016 admitting the appellant to bail. The appellant had relied upon additional document obtained under the Right to Information Act, 2005 that the date of birth as mentioned in Ex P-10 as 24.10.1998 does not belong to the prosecutrix and in fact, belongs to another person Dharamraj. In reply on behalf of the respondent, the stand of the appellant was denied, but, the Court found that certificate issued by the Authorities makes the document of age submitted by the prosecution as doubtful. It was observed that the prosecutrix being less than 18 years of age may not be correct if the benefit of three years on either side is considered. Thus the age arrived at by the learned trial Court on the basis of an ossification test conducted on 01.03.2013 in which she was found to be 13 ½ to 14 ½ years of age may not be justified."

Simply put, para 5 brings out that, "In an application for cancellation of bail, it is pointed out that the registration number has been wrongly mentioned in the certificate (Ex P-10). The correct Serial No. is 1757 and actually she was born in village Ikalbihari and contents of Ex P-10 are correct. It is pointed out that the certificate cannot be said to be a forged document only on the basis of wrong registration number. It is also pointed out that even if the benefit of three years of age is given to the prosecutrix, still she does not attain the age of 18 years as the maximum age would be 17 ½ years. Thus, it is pointed out that the appellant has been granted bail on the basis of additional document, which could not have been taken into consideration at the stage of consideration of the application for suspension of sentence and that too without giving any opportunity to the victim to controvert the allegation, which was pertaining to the age of the prosecutrix."

As it turned out, in para 6, it was observed that, "Learned counsel for the appellant vehemently resisted the application for cancellation of bail and argued that such application is not maintainable, as in terms of Section 389 of the Code, it is only the Public Prosecutor who can file an application for cancellation of bail. Even if a victim has been given right to file an appeal against an order of acquittal in terms of proviso to Section 372 of the Code, she does not become entitled to seek cancellation of bail. Learned counsel for the appellant relies upon a judgment of the Supreme Court reported as (2015) 15 SCC 613 (Satya Pal Singh vs State of Madhya Pradesh and others) wherein it has been held that right to prefer an appeal to the High Court in terms of proviso to Section 372 of the Code can be exercised only after obtaining leave of Court as required under Sub-section (3) of Section 378 of the Code. It is, therefore, contended that the rights of the prosecutrix are not larger than that of a Public Prosecutor. The Public Prosecutor alone has been conferred right to seek cancellation of bail, therefore, the application for cancellation of bail at the instance of prosecutrix is not maintainable."

Not stopping here, para 7 goes on to say that, "Learned counsel for the appellant also refers to a judgment of the Supreme Court reported as (2016) 10 SCC 378 (Dhariwal Industries Limited vs Kishore Wadhwani and others) to argue that the prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by such person is required to act under the directions of the Public Prosecutor."

Now coming to para 8, it says that, "Learned counsel for the appellant also relies upon an order passed by the Supreme Court in Special Leave to Appeal (Criminal) No. 2240/2018 (The High Court of Judicature of Hyderabad for the State of Telanagana and the State of Andhra Pradesh vs Mahabunisa Begum & others) on 14.05.2018, wherein, an order of High Court for the State of Telangana and Andhra Pradesh rendered in Criminal Petition No. 7108/2017 (Smt Mahabunnisa Begum vs State of Telanagana and 2 others) was set aside in the light of the decisions reported as (1999) 7 SCC 467 (Shiv Kumar vs Hukam Chand & Anr.) and Dhariwal Industries Ltd. (supra). It may be stated that before the High Court in Criminal Petition No. 7108/2017 (supra), the complainant sought permission to prosecute a criminal case registered on her complaint through a private Advocate. The petition was allowed and the complainant/victim was permitted to engage a private advocate and conduct prosecution by further examination of any witness in addition to the public prosecutor."

Having said this, it would be apposite to now have a glimpse at what para 10 of this landmark judgment says. It points out that, "On the other hand, learned counsel for the prosecutrix invited our attention to the decisions of the Supreme Court reported as (1979) 4 SCC 719 (Rattan Singh vs State of Punjab); a Constitutional Bench decision reported as (1980) 3 SCC 141 (P.S.R. Sadhanantham vs Arunachalam and another); and (2000) 2 SCC 391 (R. Rathinam vs State by DSP). Learned counsel has placed a heavy reliance upon a decision reported as (2001) 6 SCC 338 (Puran etc. vs Rambilas and another etc.) and a recent decision of the Supreme Court reported as (2016) 6 SCC 699 (Amanullah and Another vs. State of Bihar and others). Learned counsel also relies upon the Declaration of "Basic Principles of Justice of Victim for Crime and Abuse of Power" adopted in 96th plenary meeting of the General Assembly on 29th November 1985. The declaration laid down the following for access to justice and fair treatment to the victims: -

"4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm they have suffered.

5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the deposition of their cases especially where serious crimes are involved and where they have requested such information;

(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system.

(c) Providing proper assistance to victims throughout the legal process;

(d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims."

Truth be told, para 12 states explicitly that, "The judgment referred to by the learned counsel for the appellant deals with the right of a victim to assist the public prosecutor during trial or the right of appeal under Section 372 of the Code but present is a situation where the prosecutrix is not seeking her right to engage an Advocate for prosecution of the accused or for filing an appeal. The accused stands convicted and is in appeal. The grievance of the prosecutrix is that the appellant has sought suspension of sentence on the facts, which were not on record and also by misrepresenting the factual situation. However, as mentioned above, we are not examining the merits of the prayer for cancellation of bail but only for the purposes of locus standi, this fact is mentioned."

Be it noted, para 13 further while pointing out deficiencies in our criminal law states that, "In Rattan Singh (supra), the Supreme Court held that it is a weakness of our jurisprudence that the victims of the crime and the distress of the dependents of the prisoner do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law and this is a deficiency in the system which must be rectified by the legislature."

Truly speaking, para 21 which is the next most relevant para points out explicitly that, "The declaration of basic principles of justice for victims of crime issued by General Assembly of United Nations provides for victim to obtain redress through formal and informal procedures that are expeditious, fair, inexpensive and accessible. Such declaration contemplates that responsiveness of judicial and administrative processes to the needs of victims should be facilitated by informing the victims of their role and the scope, timing and progress of the proceedings including allowing the views and concerns of the victims to be presented and considered at the appropriate stages of the proceedings where their personal interests are involved. Therefore, though it is the responsibility of the State to bring the accused to law but in such process the actual sufferer of crime cannot be permitted to stay outside the law and to watch the proceedings from hindsight. It will be travesty of justice if the victims of such heinous crime are denied right to address their grievances before the courts of law."

It cannot be lost on us that para 22 further brings out that, "The judgment in Puran's case (supra) arises out of an order passed by the High Court cancelling bail granted by Additional Sessions Judge. The Court has drawn distinction when conditions of bail are being infringed such as interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner or when the cancellation of bail is sought when bail is granted by ignoring material evidence on record or a perverse order granting bail is passed in a heinous crime. Such an order was said to be against the principles of law. That was a case of an offence under Section 498 and 304-B of IPC. The Court noticed that such offences are on the rise and have a very serious impact on the society. The Court held that concept of setting aside unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts require such cancellation. The Court considered an argument that a third party cannot move a petition for cancellation of bail as the prosecution has not moved for cancellation. The Court held that an application for cancellation of bail is not by a total stranger but by the father of the deceased. Therefore, it was held that powers so vested in the High Court can be invoked either by the State or by an aggrieved party. The said power could also be exercised suo motu by the High Court. In view of the aforesaid judgment, which pertains to era prior to amendment in Section 372 of the Code giving right to a victim to file an appeal against the order of conviction, clearly gives right to the prosecutrix, a victim of heinous crime on her person to approach this Court for cancellation of bail."

Now coming to the concluding part, the Bench in para 23 clearly enunciates that, "Once right of appeal has been given to a victim, it shall include all ancillary rights which are attached with the right to appeal. Such right to appeal will include right to seek cancellation of bail if the victim is aggrieved against such an order." Finally and most importantly, the Bench of Madhya Pradesh High Court comprising of Chief Justice Hemant Gupta and Justice Vijay Kumar Shukla comes to the logical and quite palpable conclusion as they concluded by observing categorically that, "In view of the above, we find that the victim has a right to seek cancellation of an order of suspension of sentence, as it is her rights and honour, which is in issue apart from the crime against humanity protected by the State." Absolutely right! There can be no denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.