Jagmohan Yadu vs State Of Chhattisgarh
2022 Latest Caselaw 2097 Chatt

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                                                             WA No. 48 of 2022


                                                                       AFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

  (Arising out of order dated 15.12.2021 passed by learned Single Judge in
                             WPCR No.836/2021)

                          WA No. 48 of 2022

    Jagmohan Yadu S/o Gulal Yadu Aged About 50 Years R/o
     Khorpa, Police Station Patan, District Durg, Chhattisgarh

                                                            ---- Appellant

                                 Versus

   1. State Of Chhattisgarh Through Station House Officer, Police
      Station Patan, District Durg, Chhattisgarh.

   2. Bhagawat Yadav S/o Ramanuj Yadav Aged About 31 Years
      Village Khorpa, Police Station Patan, District Durg,
      Chhattisgarh.

   3. Rupesh Yadav S/o Ramanuj Yadav Aged About 28 Years
      Village Khorpa, Police Station Patan, District Durg,
      Chhattisgarh.

                                                      ---- Respondents



For Appellant               :-     Mr. Umesh Verma, Advocate with
                                   Mr. Shantam Awasthi, Advocate
For Respondent-State        :-     Mr. Gagan Tiwari, Dy.G.A.


             Hon'ble Shri Justice Goutam Bhaduri
            Hon'ble Shri Justice N.K. Chandravanshi
                     Judgment on Board



Per Goutam Bhaduri, J.

WA No. 48 of 2022

4/4/2022

1. Challenge in this appeal is to the order dated 15.12.2021

passed by the learned Single Judge in WPCR No.836/2021.

[For the sake of convenience, the parties hereinafter would

be referred as per their description in WPCR].

2. The brief facts of this case are that the respondents No.2

and 3 were convicted in a Sessions trial by the 2 nd Additional

Sessions Judge, Durg on 02.3.2019, along with two other

accused persons. They had filed an appeal before the High

Court and the Division Bench of this High Court in CRA

No.664/2019, initially suspended the sentence and granted

bail to respondent No.2 Bhagwat Yadav on 26.3.2021 and

subsequently, the jail sentence imposed upon respondent

No.3 Rupesh Yadav was suspended on 06.9.2021. It is the

case of the petitioner (victim), who is the brother of the

deceased, that after the respondent No.2 Bhagwat Yadav

was released on bail, he started threatening the family

members of the victim for which the application was moved

by the petitioner before the Police Station - Patan on

29.10.2021, followed by another application dated

19.11.2021. It is contended since no action was taken by

the Police, the Police became dormant as such the writ

petition bearing WPCR No.836/2021 was filed with the

following reliefs:-

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"a. The Hon'ble Court may kindly be pleased to call for the records of the case from the respondents.

b. The Hon'ble Court may kindly be pleased to direct the Respondent No. 01 to take appropriate steps to ensure safety and security of the petitioner and his family members.

c. The Hon'ble Court may kindly be pleased to direct the Respondent No. 01 to take appropriate steps for cancellation of the Bail/Suspension of sentence of the respondents No. 2 & 3.

d. The Hon'ble Court may kindly be pleased to grant any other relief as it deems fit and proper in the facts and circumstances of the case."

3. The learned Single Judge dismissed the writ petition by

observing that the petitioner may file a complaint under

Section 156(3) of Cr.P.C. or Section 200 of the Cr.P.C.

before the concerned Magistrate having jurisdiction and the

Magistrate would decide the case on its own merits.

4. Learned counsel for the petitioner submits that apart from

the complaint which was made to the Police for which, no

action was taken, the writ petition also contained a prayer for

cancellation of bail. The said prayer remained unanswered,

as the petitioner though may have the right to file the

complaint before the competent Judicial Magistrate but

cancellation of bail still remained to be answered. He would

submit that once the bail has been granted and the proviso

to Section 389 Cr.P.C. since only confers power to the public

prosecutor to file application for cancellation cannot be read

in isolation and interpretation is to be harmonized with

Section 372 of the Cr.P.C., which gives power to the victim

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to file an appeal. Therefore, he would submit that ipso facto

power of cancellation of bail would be conferred on the

victim. The victim would be clothed with power to file an

application for cancellation of bail or making a prayer before

any competent Court, therefore, the order requires to be

modified accordingly.

5. Per contra, learned State counsel would submit that proviso

clause to Section 389 Cr.PC. gives power to the public

prosecutor to file an application for cancellation of bail and in

the instant case, since the victim has come forward before

the Court as such the victim may file an application under

Section 482 Cr.P.C. before the concerned Division Bench

which has granted bail to the respondents No.2 and 3. He

would submit that the learned Single Bench of the Court

may not entertain the application for cancellation of bail

granted by the Division Bench. He would further submit that

the High Court of Madhya Pradesh in the matter of Mahesh

Pahade Vs State of Madhya Pradesh, (CRA No.933 of

2014 decided on 18.7.2018) has taken into account the right

of the victim for filing an application for cancellation of bail.

He would also place reliance upon the decision of the

Supreme Court in the matter of Pampapathy Vs. State of

Mysore reported in AIR 1967 SC 286.

6. We have heard the learned counsel for the parties and

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perused the record.

7. The facts which emerges out that respondents No.2 and 3,

who were convicted in a trial under Section 302 of the IPC

filed an appeal before the High Court. The Division Bench

of this High Court in CRA No.664/2019, initially suspended

the jail sentence of respondent No.2 Bhagwat Yadav on

26.3.2021 and subsequently, the jail sentence of respondent

No.3 Rupesh Yadav was suspended on 06.9.2021. As a

result of that both the accused came out of the jail. The

petitioner contends that subsequently to their release from

the jail they started threatening and intimidating the victim

and his family members.

8. The learned Single Bench observed that petitioner may file a

complaint under Section 156(3) or Section 200 of Cr.P.C. in

case the Police has not taken cognizance of the report. The

writ petition filed would show that it contained a prayer for

cancellation of bail too, which is a major relief. The learned

Single Bench, though had not deliberated on this issue,

however considering the nature of relief claimed in facts of

the case this requires adjudication.

9. The question which looms large as to which forum, the

petitioner can approach for cancellation of bail as under

Section 389 of the Cr.P.C., the proviso clause confers the

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power only on the public prosecutor to file the application for

cancellation of bail.

10. For the sake of brevity, relevant part of Section 389 of

Cr.P.C. is reproduced herein below:-

"389. Suspension of sentence pending the appeal;

release of appellant on bail.- (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

[Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.]"

XXX XXX XXX

11.The Supreme Court in the like matter of the issue drawing

the analogy in Pampapathy (supra) observed that in cases

when the accused comes out of jail then after he may

criminally intimidate the prosecution or witness or their

counsel in act of violence and revenge, therefore, it cannot

be presumed that the victim would not have any right to

complaint or he do not have any forum to complaint. The

Supreme Court further observed that in such situation the

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inherent power of the Court will come into play and the

victim would be within his rights to claim for cancellation of

bail. At para 7 of its judgment, the Supreme Court observed

as under:-

"7..... The argument is that once an order of suspension of sentence is made under Section 426 by the appellate court and the appellant is ordered to be released on bail, the subsequent conduct of the appellant, howsoever reprehensible it may be, cannot justify the appellate court in revoking the order of bail and ordering the re-arrest of the appellant. The appellant may commit further acts of violence; he may perpetrate once again the very same offences for which he has been convicted he may even threaten and criminally intimidate the prosecution counsel who may be in charge of the case in the appellate court; he may attempt to abscond to a foreign country to escape the trial; or he may commit acts of violence in revenge against the police and prosecution witnesses who have deposed against him in the trial Court, but the appellate court will have no power to cancel the suspension of sentence and the order of bail made under Section 426, Criminal Procedure Code. Such a situation could not have been in the contemplation of the legislature and, in our opinion, the omission to make an express provision in that behalf is manifestly due to oversight or inadvertence. In a situation of this description the High Court is not helpless and in a proper case it may take recourse to the inherent power conferred upon it under Section 561-A of the Criminal Procedure Code."

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12. The legislature in its wisdom brought an amendment in

Criminal Procedure Code with effect from 31.12.2009 under

Section 372 of the Cr.P.C. wherein right to file an appeal to

victim was conferred. For the sake of brevity the Section

372 along with the proviso clause is reproduced herein

under :-

"372. No appeal to lie unless otherwise provided.- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.]"

13. The object to bring the amendment was to confer the victim

such rights which puts the victim into a higher pedestal than

the prosecution agency. It gives an unqualified right to the

victim to prefer an appeal in its terms as against the

enabling provision under Sections 377 and 378 of the

Cr.P.C. which only gives liberty to the District Magistrate to

file appeal. Reading of Sections would prima facie reflect

that no limitation is also provided and the same yardstick is

provided as contained in Section 378 of the Cr.P.C. The

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yardstick laid down by the Judicial pronouncement for

consideration of appeal under Section 378 of the Cr.P.C.

would also apply to the appeal filed by the victim under the

proviso, therefore, it would have an accrual of the right of

the victim to file an appeal in all cases in which the victim

thinks it proper that his right is being defeated. Accordingly,

the analogy which comes out would show the victim has

been given substantial right by the amendment in the Cr.P.C

to file an appeal after trial.

14. Consequently, in a case where the conviction has been

made and in an appeal the accused has been bailed out, it

cannot be presumed that the victim will not have any right to

file an application for cancellation of bail. The legislature on

one part has given power to the victim to challenge the

acquittal itself to file an appeal then simultaneously, it cannot

be culled out that the victim would be remedy-less and no

forum is available to him to make a complaint in a case for

cancellation of bail/suspension of jail sentence in appeal. In

a case, if the accused after coming out of the jail, during the

bail, commits any offence or criminally intimidate the victim

or the prosecution, the victim will have a right to apply for

cancellation of bail. The Division Bench of the Madhya

Pradesh in the matter of Mahesh Pahade (supra) has laid

down the law to hold that once the right of the appeal is

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given to the victim, it shall include the ancillary power which

have attached to the right to appeal and as a natural

corollary the claim for cancellation of bail shall also followed.

The law laid down by the Madhya Pradesh High Court is

reproduced as in herein under :-

 "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. -

Relied upon - Declaration of "Basic Principles of Justice of Victim for Crime and Abuse of Power" adopted in 96th plenary meeting of the General Assembly on 29 th November 1985.

 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, as it is her rights and honour, which is in issue apart from the crime against humanity protected by the State."

15. Therefore, after examination of the records, we are of the

considered view that the victim shall have a right to file an

application for cancellation of bail under inherent power of

the High Court under Section 482 of the Cr.P.C. It would be

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in proprietary to file an application, if so advised, before the

Division Bench which granted the bail / suspended the jail

sentence imposed upon the accused, so that the proper

appreciation of facts can be arrived at. With respect to filing

of separate complaint, the petitioner shall have the right and

liberty as available under the common law of Cr.P.C.

16. With the aforesaid observations, the appeal stands

disposed of.

                SD/-                                   SD/-
         (Goutam Bhaduri)                    (N.K. Chandravanshi)
             Judge                                  Judge




Ayushi/Amar

                                                    WA No. 48 of 2022


                    Head Note


                WA No. 48 of 2022

Victim can seek relief for cancellation of bail granted in criminal appeal invoking the Section 482 of Cr.P.C. before the concerned Bench.

ihfM+r] nkf.डक vihy esa iznRr tekur fujLrhdj.k ds fy,] lacaf/kr ihB ds le{k] n.M izfdz;k lafgrk dh /kkjk 482 ds varxZr jkgr dh ekax dj ldrk gS A