In India’s criminal justice system, until 2009, victims had no scope of participating in the process and ensuring that justice was done. Everything was dependent upon the public prosecutor, who was the sole repository of powers to represent the state, and as seen in many cases, not always the victim’s interests.
The 2009 amendments to the Code of Criminal Procedure (CrPC) changed that situation significantly, by bringing in Section 372, which allowed the victim to challenge an acquittal even if the state (represented by the public prosecutor) was not willing to do so. But this was clearly not enough, since challenging an acquittal comes only at the very end of the trial process. What happens prior to that – especially in the case of opposing the accused’s bail? In that matter, the victim was completely excluded from the process and was left dependent on what the public prosecutor would –or would not – do.
The Madhya Pradesh high court, in its July 18 order in the case of Mahesh Pahade – by allowing the victim to challenge bail – has taken a bold step towards remedying this iniquitous situation and giving crime victims’ rights a much-needed forward push.
The case before the court was one of sexual assault of a minor, in which the accused – the minor’s uncle – had allegedly misrepresented facts before the court and secured a bail order. The minor’s father moved court to have the bail cancelled, but the public prosecutor was not keen on this course of action. In fact, he refused to oppose the bail. It was then left to the father to fight alone.
The lawyer for the accused argued that according to Sections 389 and 439 of the CrPC, it is only the public prosecutor who can bring in an application for cancellation of bail or order suspending the sentence. And since the public prosecutor had decided not to oppose the bail, the victim’s father, because he was not a party to the case, had no locus standi to move an application for cancellation of bail.
SC’s decision in Puran case
The high court was faced with a peculiar problem – on one hand, it had to do justice to the victim, but on the other hand, it was also bound by the provisions set down in law. The provisions clearly gave primacy to the public prosecutor.
Justice Hemant Gupta, who wrote the judgement, resolved this by relying on a Supreme Court judgement delivered in 2001 (even before the CrPC was amended to bring in Section 372 which gave substantive rights to victims in the criminal trial process).
This apex court verdict was delivered in the case of Puran, Ramesh & Ors. vs Rambilas & Ors.
The case was about a dowry death in which the trial court had released the accused and his family members on bail while their trial was pending. The father of the deceased woman urged the public prosecutor to move court for cancelling the bail, but his pleas fell on deaf ears. Even the high court said that it could do nothing if the public prosecutor decides not to challenge the bail order – the victim or her family members, in such a case, had no right to proceed on their own.
However, Justice S.N. Variava, who wrote the judgement for the Supreme Court bench, disagreed with the high court’s conclusion. He relied on the apex court’s decision given a year before in the case of R. Rathinam vs State in which a group of practicing lawyers were allowed to oppose the bail granted to some persons even though the state had decided against it.
Relying on this ruling, Justice Variava held that there was nothing in the CrPC which prevented the courts from exercising their power under Section 439 of the CrPC (which deals with granting and cancellation of bail) to allow a victim’s representatives to move applications for cancellation of bail or suspension of sentence in case the state/public prosecutor is not doing so.
“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… 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.”
In its decision, the high court relied not only on an apex court precedent, but also the principle of a well-established right recognised in international law. The court referred to and relied on Basic Principles of Justice for Victims of Crime and Abuse of Power, which was adopted by the UN General Assembly in 1985. Clause 6(b) of these principles state and emphasise that the concerns of victims must be allowed to be represented at appropriate stages of the criminal trial process, especially where their personal interests are affected.
There are situations aplenty where due to political pressures and various other extraneous considerations, the state would not be willing to oppose bail. Take the case of those accused of lynchings and other hate crimes, and who enjoy considerable political and government tacit support, if not patronage. Or, take other cases such as dowry death and sexual assault, where the accused persons are always determined to go scot free and often bribe the state agencies – the police and the prosecution – to go easy on them. More alarming is the case of the Supreme Court dismissing social activist Harsh Mander’s petition against the discharge of BJP president Amit Shah in the Sohrabuddin Sheikh fake encounter case on arguably specious grounds, holding that Mander, being a “stranger” to the case, had no locus.
Earlier, the victims were left hapless, but now on, the Madhya Pradesh high court’s ruling would ensure that they are able to challenge the impunity. Perhaps, this high court ruling would also be able to wake up the Supreme Court’s to shed its sphinx-like demeanour and do justice in the cases which come before it.
Saurav Datta divides his time between legal education and journalism and between Bombay and Delhi.