MANU/MP/0291/2018

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

Criminal Appeal No. 933/2014 (Order on I.A. No. 6367/2017)
Decided On: 18.07.2018
Appellants: Mahesh Pahade
Vs.
Respondent: State of Madhya Pradesh
Hon'ble Judges/Coram:
Hemant Gupta, C.J. and Vijay Kumar Shukla, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Vishal Daniel, Advocate
For Respondents/Defendant: Namrata Agrawal, Government Advocate
ORDER
Hemant Gupta, C.J.
I.A. No. 6367/2017:
1 . 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.
2. 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 sentencing 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.
3 . The allegation against the appellant is that he exploited the prosecutrix of 14 1/2
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.
4. 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

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she was found to be 13 1/2 to 14 1/2 years of age may not be justified.
5 . 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 1/2 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.
6. 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 MANU/SC/1119/2015 : (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.
7 . Learned counsel for the appellant also refers to a judgment of the Supreme Court
reported as MANU/SC/1000/2016 : (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.
8. 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 Telangana 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 Telangana and 2 others) was set aside in the
light of the decisions reported as MANU/SC/0533/1999 : (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.
9. We may state that at this stage, only locus of filing of an application for cancellation
of bail itself is being examined in the present order. We have not heard the learned

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counsel for the parties on the merits of the application for cancellation of bail.
10. On the other hand, learned counsel for the prosecutrix invited our attention to the
decisions of the Supreme Court reported as MANU/SC/0226/1979 : (1979) 4 SCC 719
(Rattan Singh vs. State of Punjab); a Constitutional Bench decision reported as
MANU/SC/0083/1980 : (1980) 3 SCC 141 (P.S.R. Sadhanantham vs. Arunachalam and
another); and MANU/SC/0071/2000 : (2000) 2 SCC 391 (R. Rathinam vs. State by
DSP). Learned counsel has placed a heavy reliance upon a decision reported as
MANU/SC/0326/2001 : (2001) 6 SCC 338 (Puran etc. vs. Rambilas and another etc.)
and a recent decision of the Supreme Court reported as MANU/SC/0403/2016 : (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 that 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 disposition 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."
11. The Code was amended only vide Central Act No. 5 of 2009 whereby the victim was
given permission to engage an Advocate of his choice and also to file an appeal under
Section 372 of the Code. The relevant provisions of the Code, read as under:-
"24. Public Prosecutors. (1) ............

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 *** *** ***
(8) The Central Government or the State Government may appoint, for the
purposes of any case or class of cases, a person who has been in practice as an
advocate for not less than ten years as a Special Public Prosecutor:
Provided that the Court may permit the victim to engage an advocate of
this choice to assist the prosecution under this sub-section.
*** *** ***
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.
*** *** ***
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.
(2) The power conferred by this section on an Appellate Court may be exercised
also by the High Court in the case of an appeal by a convicted person to a Court
subordinate thereto.
*** *** ***
12. 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 procedure to avail 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 stand 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.

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1 3 . 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. The relevant extract of the decision is reproduced as under:-
"6. The victimisation of the family of the convict may well be a reality and is
regrettable. 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! This is a deficiency in the system which must be rectified by the
legislature. We can only draw attention to this matter. Hopefully, the Welfare
State will bestow better thought and action to traffic justice in the light of the
observations we have made......."
14. Arunachalam's case (supra) was a petition decided by the Constitution Bench as the
petitioner was convicted in an appeal by the Supreme Court at the instance of the
victim. The Court has delineated the jurisdiction of the Supreme Court while
entertaining a petition under Article 136 of the Constitution of India. The relevant
extract of the said judgment, reads as under:-
"25. In India also, the criminal law envisages the State as the prosecutor.
Under the Code of Criminal Procedure, the machinery of the State is set in
motion on information received by the police or on a complaint filed by a
private person before a Magistrate. If the case proceeds to trial and the accused
is acquitted, the right to appeal against the acquittal is closely circumscribed.
Under the Code of Criminal Procedure, 1898 (Section 417) the State was
entitled to appeal to the High Court, and the complainant could do so only if
granted special leave to appeal by the High Court. The right of appeal was not
given to other interested persons. Under the Code of Criminal Procedure 1973
(Section 376), the right of appeal vested in the State has now been made
subject to leave being granted to the State by the High Court. The complainant
continues to be subject to the pre-requisite condition that he must obtain
special leave to appeal. The fetters so imposed on the right to appeal are
prompted by the reluctance to expose a person, who has been acquitted by a
competent court of a criminal charge, to the anxiety and tension of a further
examination of the case, even though it is held by a superior court. The Law
Commission of India gave anxious thought to this matter, and while noting that
the Code recognised a few exceptions by way of permitting a person aggrieved
to initiate proceedings in certain cases and permitting the complainant to
appeal against an acquittal with special leave of the High Court, expressed itself
against the general desirability to encourage appeals against acquittal. It
referred to the common law jurisprudence obtaining in England and other
countries where a limited right of appeal against acquittal was vested in the
State and where the emphasis rested on the need to decide a point of law of
general importance in the interests of the general administration and proper
development of the criminal law. But simultaneously the Law Commission also
noted that if the right to appeal against acquittal was retained and extended to
a complainant the law should logically cover also cases not instituted on
complaint. It observed:
"Extreme cases of manifest injustice, where the Government fails to
act, and the party aggrieved has a strong feeling that the matter

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 requires further consideration, should not, in our view, be left to the
mercy of the Government. To inspire and maintain confidence in the
administration of justice, the limited right of appeal with leave given to
a private party should be retained, and should embrace cases initiated
on private complaint or otherwise at the instance of an aggrieved
person."
However, when the Criminal Procedure Code, 1973 was enacted the statute, as
we have seen, confined the right to appeal, in the case of private parties to a
complainant. This is, as it were, a material indication of the policy of the law.
26. .......... We think that the Court should entertain a special leave petition
filed by a private party, other than the complainant, in those cases only where
it is convinced that the public interest justifies an appeal against the acquittal
and that the State has refrained from petition for special leave for reasons
which do not bear on the public interest but are prompted by private influence
want of bona fide and other extraneous considerations..........."
15. In R. Rathinam's case (supra) the accused were granted bail pending trial. Some
Advocates filed a petition for cancellation of bail granted to the accused. The said
petition was not entertained by the Bench. It was held by the High Court that the
correctness of an order passed by the learned Single Bench cannot be doubted before
the Division Bench. The remedy is under Article 136 of the Constitution of India. But, it
was held that in terms of Sub-section (2) of Section 439 of the Code, the bail can be
cancelled. The Court held as under:-
"8. It is not disputed before us that the power so vested in the High Court can
be invoked either by the State or by any aggrieved party. Nor is it disputed that
the said power can be exercised suo motu by the High Court. If so, any member
of the public, whether he belongs to any particular profession or otherwise,
who has a concern in the matter can move the High Court to remind it of the
need to invoke the said power suo motu. There is no barrier either in Section
439 of the Code or in any other law which inhibits a person from moving the
High Court to have such powers exercised suo motu. If the High Court
considers that there is no need to cancel the bail for the reasons stated in such
petition, after making such considerations it is open to the High Court to
dismiss the petition. If that is the position, it is also open to the High Court to
cancel the bail if the High Court feels that the reasons stated in the petition are
sufficient enough for doing so. It is, therefore, improper to refuse to look into
the matter on the premise that such a petition is not maintainable in law."
16. The Supreme Court in Puran's case (supra) upheld the locus standi of father of the
deceased in dowry death case to move the High Court to seek cancellation of bail
granted by the Additional Sessions Judge as he was not a stranger to the case. The
relevant extracts from the decision in Puran's case (supra) are reproduced as under:-
"10. Mr. Lalit next submitted that once bail has been granted it should not be
cancelled unless there is evidence that the conditions of bail are being
infringed. In support of this submission he relied upon the authority in the case
o f Dolat Ram & Ors. State of Haryana, MANU/SC/0547/1995 : (1995) 1 SCC
349. In this case it has been held that rejection of bail in a non-bailable case at
the initial stage and the cancellation of bail already granted have to be
considered and dealt with on different basis. It has been held that very cogent

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and overwhelming circumstances are necessary for an order directing the
cancellation of the bail already granted. It has been held that generally
speaking the grounds for cancellation of bail broadly are 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. It is, however, to be noted that this Court has
clarified that these instances are merely illustrative and not exhaustive. One
such ground for cancellation of bail would be where ignoring material and
evidence on record a perverse order granting bail is passed in a heinous crime
of this nature and that too without giving any reasons. Such an order would be
against principles of law. Interest of justice would also require that such a
perverse order be set aside and bail be cancelled. It must be remembered that
such offences are on the rise and have a very serious impact on the Society.
Therefore, an arbitrary and wrong exercise of discretion by the trial court has to
be corrected.
11. Further, it is to be kept in mind that the concept of setting aside the
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 requiring such cancellation. This position is made
clear by this Court in Gurcharan Singh v. State (Delhi Admn.) reported in
MANU/SC/0420/1978 : (1978) 1 SCC 118. In that case the Court observed as
under (SCC p. 124, para 16):-
"If, however, a Court of Session had admitted an accused person to
bail, the State has two options. It may move the Sessions Judge if
certain new circumstances have arisen which were not earlier known to
the State and necessarily, therefore, to that Court. The State may as
well approach the High Court being the superior Court under S. 439(2)
to commit the accused to custody. When however, the State is
aggrieved by the order of the Sessions Judge granting bail and there
are no new circumstances that have cropped up except those already
existed, it is futile for the State to move the Sessions Judge again and
it is competent in law to move the High Court for cancellation of the
bail. This position follows from the subordinate position of the Court of
Session vis-a-vis the High Court.
*** *** ***
14. Mr. Lalit next submitted that a third party cannot move a Petition for
cancellation of the bail. He submitted that in this case the Prosecution has not
moved for cancellation of the bail. He pointed out that the father of the
deceased had moved for cancellation of the bail. He relied upon the case of
Simranjit Singh Mann vs. Union of India, MANU/SC/0058/1993 : (1992) 4 SCC
653 and Janata Dal vs. H.S. Chowdhary, MANU/SC/0611/1991 : (1991) 3 SCC
356. Both these cases dealt with Petitions under Article 32 of the Constitution of
India whereunder a total stranger challenged the conviction and sentence of the
accused. This Court held that neither under the provisions of the Criminal
Procedure Code nor under any other statute is a third party stranger permitted
to question the correctness of the conviction and sentence imposed by the
Court after a regular trial. It was held that the Petitioner, who was a total
stranger, had no 'locus standi' to challenge the conviction and the sentence
awarded to the convicts in a Petition under Article 32. The principle laid down

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 in these cases has no application to the facts of the present case. In this case
the application for cancellation of bail is not by a total stranger but it is by the
father of the deceased. In this behalf the ratio laid down in the case of R.
Rathinam vs. State by DSP, District Crime Branch, Madurai District, Madurai and
Anr. MANU/SC/0071/2000 : (2000) 2 SCC 391, needs to be seen. In this case
Bail had been granted to certain persons. A group of practising advocates
presented petitions before Chief Justice of the High Court seeking initiation of
suo motu proceedings for cancellation of bail. The Chief Justice placed the
petitions before a Division Bench. The Division Bench refused to exercise the
suo motu powers on the ground that the petition submitted by the advocates
was not maintainable. This Court held that the frame of sub-section (2) of
Section 439 indicates that it is a power conferred on the Courts mentioned
therein. It was held that there was nothing to indicate that the said power can
be exercised only if the State or investigating agency or a Public Prosecutor
moves a petition. It was held that the power so vested in the High Court can be
invoked either by the State or by any aggrieved party. It was held that the said
power could also be exercised suo motu by the High Court. It was held that,
therefore, any member of the public, whether he belongs to any particular
profession or otherwise could move the High Court to remind it of the need to
exercise its power suo motu. It was held that there was no barrier either in
Section 439 of the Criminal Procedure Code or in any other law which inhibits a
person from moving the High Court to have such powers exercised suo motu. It
was held that if the High Court considered that there was no need to cancel the
bail then it could dismiss the Petition. It was held that it was always open to
the High Court to cancel the bail if it felt that there were sufficient reasons for
doing so.
*** *** ***
16. We see no substance in this submission. In the hierarchy of Courts, the
High Court is the Superior Court. A restrictive interpretation which would have
effect of nullifying Section 439(2) cannot be given. When Section 439(2) grants
to the High Court the power to cancel bail, it necessarily follows that such
powers can be exercised also in respect of Orders passed by the Court of
Sessions. Of course cancellation of bail has to be on principles set out
hereinabove and only in appropriate cases.
17. Further, even if it is an interlocutory order, the High Court's inherent
jurisdiction under Section 482 is not affected by the provisions of Section
397(3) of the Code of Criminal Procedure. That the High Court may refuse to
exercise its jurisdiction under Section 482 on the basis of self-imposed
restriction is a different aspect. It cannot be denied that for securing the ends
of justice, the High Court can interfere with the order which causes miscarriage
of justice or is palpably illegal or is unjustified. [Re. Madhu Limaye v. State of
Maharashtra, MANU/SC/0103/1977 : (1977) 4 SCC 551 and Krishnan and
Another v. Krishnaveni and Another, MANU/SC/0223/1997 : (1997) 4 SCC
241]".
[emphasis supplied]
1 7 . The matter came up for consideration before the Supreme Court in the case of
Zahira Habibullah Sheikh and another vs. State of Gujarat and others, reported as
MANU/SC/1344/2006 : (2006) 3 SCC 374, wherein the Court held as under:-

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"35. This Court has often emphasised that in a criminal case the fate of the
proceedings cannot always be left entirely in the hands of the parties, crime
being public wrong in breach and violation of public rights and duties, which
affects the whole community as a community and is harmful to the society in
general. The concept of fair trial entails familiar triangulation of interests of the
accused, the victim and the society and it is the community that acts through
the State and prosecuting agencies. Interests of society is not to be treated
completely with disdain and as persona non grata. The courts have always been
considered to have an over-riding duty to maintain public confidence in the
administration of justice - often referred to as the duty to vindicate and uphold
the "majesty of the law". Due administration of justice has always been viewed
as a continuous process, not confined to determination of the particular case,
protecting its ability to function as a Court of law in the future as in the case
before it. If a criminal Court is to be an effective instrument in dispensing
justice, the Presiding Judge must cease to be a spectator and a mere recording
machine by becoming a participant in the trial evincing intelligence, active
interest and elicit all relevant materials necessary for reaching the correct
conclusion, to find out the truth, and administer justice with fairness and
impartiality both to the parties and to the community it serves. The courts
administering criminal justice cannot turn a blind eye to vexatious or
oppressive conduct that has occurred in relation to proceedings, even if a fair
trial is still possible, except at the risk of undermining the fair name and
standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human
rights protection. Such rights can be protected effectively when a citizen has
recourse to the Courts of law. It has to be unmistakably understood that a trial
which is primarily aimed at ascertaining the truth has to be fair to all
concerned. There can be no analytical, all comprehensive or exhaustive
definition of the concept of a fair trial, and it may have to be determined in
seemingly infinite variety of actual situations with the ultimate object in mind
viz. whether something that was done or said either before or at the trial
deprived the quality of fairness to a degree where a miscarriage of justice has
resulted. It will not be correct to say that it is only the accused who must be
fairly dealt with. That would be turning a Nelson's eye to the needs of the
society at large and the victims or their family members and relatives. Each one
has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial
is as much injustice to the accused as is to the victim and the society. Fair trial
obviously would mean a trial before an impartial Judge, a fair prosecutor and
atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice
for or against the accused, the witnesses, or the cause which is being tried is
eliminated. If the witnesses get threatened or are forced to give false evidence
that also would not result in a fair trial. The failure to hear material witnesses is
certainly denial of fair trial.
37. A criminal trial is a judicial examination of the issues in the case and its
purpose is to arrive at a judgment on an issue as to a fact or relevant facts
which may lead to the discovery of the fact issue and obtain proof of such facts
at which the prosecution and the accused have arrived by their pleadings; the
controlling question being the guilt or innocence of the accused. Since the
object is to mete out justice and to convict the guilty and protect the innocent,
the trial should be a search for the truth and not about over technicalities, and
must be conducted under such rules as will protect the innocent, and punish the

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 guilty. The proof of charge which has to be beyond reasonable doubt must
depend upon judicial evaluation of the totality of the evidence, oral and
circumstantial, and not by an isolated scrutiny."
18. In the case of National Human Rights Commission vs. State of Gujarat and others
reported as MANU/SC/0713/2009 : (2009) 6 SCC 767, the Supreme Court held as
under:-
"19. The Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power was adopted by the United Nations General Assembly in
resolution 40/34 of 29th November, 1985. According to the first paragraph of
this declaration, victims of crime are described as persons who, individually or
collectively, have suffered harm, including physical or mental injury, emotional
suffering, economic loss or substantial impairment of their fundamental rights,
through acts or omissions that are in violation of criminal laws operative in
Member States, including those laws proscribing criminal abuse of power. It is
they who need protection.
20. This is essentially to obliterate the apprehension that the public prosecutor
is not fair in court or is not conducting the prosecution in the proper manner.
The State of Gujarat shall appoint public prosecutors in each of the cases in
consultation with the SIT which opinion shall be final and binding on the State
Government.
2 1 . It needs to be emphasized that the rights of the accused have to be
protected. At the same time the rights of the victims have to be protected and
the rights of the victims cannot be marginalized. Accused persons are entitled
to a fair trial where their guilt or innocence can be determined. But from the
victims' perception the perpetrator of a crime should be punished. They stand
poised equally in the scales of justice.
*** *** ***
31. As noted above, the role of victim in a criminal trial can never be lost sight
of. He or she is an inseparable stakeholder in the adjudicating process. United
Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of Power, was adopted by the General Assembly through a resolution 40/34 of
29th November 1985. Articles 4 and 5 of the above mentioned United Nations
Declaration categorically states:
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
that 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.
19. In Amanullah's case (supra), the Court examined the locus standi in a criminal case
and held that though it is the duty of the State to get the culprit booked for the offence
committed by him but if the State fails in this regard and party having bona fide

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connection with the cause of action cannot be left at the mercy of the State without any
option to approach the appellate court for seeking justice. The Court held that the
appeal is maintainable preferred by a witness. The Court held as under:-
"19. The term 'locus standi' is a Latin term, the general meaning of which is
"place of standing". Concise Oxford English Dictionary, 10th Edn., at page 834,
defines the term "locus standi" as the right or capacity to bring an action or to
appear in a court. The traditional view of "locus standi" has been that the
person who is aggrieved or affected has the standing before the court that is to
say he only has a right to move the court for seeking justice. Later, this Court,
with justice-oriented approach, relaxed the strict rule with regard to "locus
standi", allowing any person from the society not related to the cause of action
to approach the court seeking justice for those who could not approach
themselves. Now turning our attention towards the criminal trial, which is
conducted, largely, by following the procedure laid down in CrPC. Since,
offence is considered to be a wrong committed against the society, the
prosecution against the accused person is launched by the State. It is the duty
of the State to get the culprit booked for the offence committed by him. The
focal point, here, is that if the State fails in this regard and the party having
bona fide connection with the cause of action, who is aggrieved by the order of
the court cannot be left at the mercy of the State and without any option to
approach the appellate court for seeking justice.
*** *** ***
24. After considering the case law relied upon by the learned counsel for the
appellants as well as the respondents, in the light of the material placed on
record, we are of the view that the appellants have locus standi to maintain this
appeal. From the material placed on record, it is clear that the appellants have
precise connection with the matter at hand and thus, have locus to maintain
this appeal. The learned counsel for the appellants has rightly placed reliance
upon the Constitution Bench judgment of this Court, namely, P.S.R.
Sadhanantham v. Arunachalam, MANU/SC/0083/1980 : (1980) 3 SCC 141 and
other decisions of this Court in Ramakant Rai v. Madan Rai,
MANU/SC/0780/2003 : (2003) 12 SCC 395, Esher Singh v. State of A.P.,
MANU/SC/0223/2004 : (2004) 11 SCC 585, Rama Kant Verma v. State of U.P.,
MANU/SC/8343/2008 : (2008) 17 SCC 257. Further, it is pertinent here to
observe that it may not be possible to strictly enumerate as to who all will have
locus to maintain an appeal before this Court invoking Article 136 of the
Constitution of India, it depends upon the factual matrix of each case, as each
case has its unique set of facts. It is clear from the aforementioned case law
that the Court should be liberal in allowing any third party, having bona fide
connection with the matter, to maintain the appeal with a view to advance
substantial justice. However, this power of allowing a third party to maintain an
appeal should be exercised with due care and caution. Persons, unconnected
with the matter under consideration or having personal grievance against the
accused should be checked. A strict vigilance is required to be maintained in
this regard."
20. In Lachhman Dass vs. Resham Chand Kaler and Another MANU/SC/0028/2018 :
(2018) 3 SCC 187, an order of granting bail was set aside by the Supreme Court,
observing thus:-

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 "11. Apart from the above, it is also important to note the legal principles
governing this case. We make it clear that this case is not an appeal seeking
cancellation of bail in any sense rather, this case calls for the legal
sustainability of the impugned order granting bail to the accused-respondent
herein. The difference between the cancellation of the bail and a legal challenge
to an order granting bail for non-consideration of material available on record
is a settled proposition. To clarify, there is no ground pleaded herein that a
supervening event breaching bail conditions is raised. [refer to State through
C.B.I. vs. Amarmani Tripathi, MANU/SC/0677/2005 : (2005) 8 SCC 21; Prakash
Kadam v. Ramprasad Vishwanath Gupta, MANU/SC/0616/2011 : (2011) 6 SCC
189].
12. Having cleared this confusion, we may clarify, though seriously urged by
the counsel appearing on behalf of the respondent No. 1, that there is no
warrant for cancellation of bail as there has been no breach of bail condition,
yet such submission is not countenanced under the law."
21. 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.
22. 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.

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23. 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.
24. 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.
2 5 . Order in respect of maintainability of I.A. No. 6367/2017 (application for
cancellation of bail) by victim passed, signed and dated.
26. At the request of learned counsel for the appellant, list on 13.08.2018 for hearing
on the application for cancellation of bail.
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