Moorthi Vs. The State rep. by, Tiruppur Police Station

Comman Order

The present miscellaneous petitions have been filed seeking to suspend the sentence imposed on the petitioners by the learned Principal Sessions Judge, Tiruppur, in S.C.No.2 of 2019 dated 08.10.2021 and release them on bail.

2.The learned Principal Sessions Judge, Tiruppur, has convicted the petitioners/accused and sentenced them as follows:

The sentences were ordered to run concurrently.

3. Challenging the above conviction and sentence, the petitioners have filed the above Criminal Appeal and seeks for suspension of sentence and bail in the present miscellaneous petitions.

4. Heard the learned counsel for the petitioners, as well as the learned Additional Public Prosecutor appearing for the respondent.

5. The case of the prosecution rests on circumstantial evidences. Among the various circumstances relied upon, motive, conspiracy, last seen theory and extra judicial confession to P.W.25 have been put forth as important links to the chain of circumstances, by the prosecution.

6. The only evidence let in by the prosecution to prove motive in this case, is the extra judicial confession allegedly given by A1 to A4, to P.W.25. It is the case of the prosecution that all the accused had abducted the deceased for demanding ransom from his father. According to the prosecution, all the accused had revealed their plan to P.W.25, to abduct the deceased for demanding ransom, to which he had declined.

Thereafter, P.W.25 claims that all the accused had informed him that they had executed the plan. On the strength of the oral testimony of P.W.25 alone, the Trial Court had concluded that the motive of the accused was to demand ransom from P.W.1, by abducting the deceased.

7. Even for the circumstance of conspiracy, reliance has been placed on the oral evidence of P.W.25.

8. It is a settled proposition of law that the oral testimony of the extra judicial confession witnesses, should be supported by a complete chain of cogent circumstances and should also find corroboration through the other prosecution witnesses.

Apart from the extra judicial confession to P.W.25, no other witness has been examined to establish motive or conspiracy in this case, which by itself is a weak piece of evidence.

9. Insofar as the circumstance of last seen theory is concerned, the witnesses who are claimed to have last seen the accused and the deceased together, have not deposed anything on the conduct of the accused that may amount to an offence of kidnapping or abducting the deceased in order to commit murder.

10. On a prima facie view, when these key pieces of circumstances, shown as the links to the entire chain does not appear to be cogent, so as to inspire the confidence of this Court, the petitioners may have a fair chance of success in the appeal.

11. By taking note of the fact that all the petitioners/accused are in confinement for almost 4 years and since the appeal may not be taken up for final disposal in the near future, we are inclined to suspend the sentence of the petitioners.

12. At this juncture, Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the wife of the deceased sought to make oral submissions opposing the suspension of sentence application. On a query on what basis she seeks to oppose, Mrs.Chidambaram submitted that a right to a victim to be heard at all stages of a criminal proceedings has been recognized in the judgment of Jagjeet Singh and others Vs. Ashish Mishra alias Monu and another, (2022) 9 SCC 321. She drew our attention to paragraph Nos.22 to 24.2 of the judgment to urge that, since the appellant in Crl.A.No.233 of 2022 is a victim, she is entitled to oppose the application. She added that the counter affidavit filed by the Inspector of Police, North Police Station (L&O), Tiruppur City, does not satisfy the requirement of Section 389, as the counter affidavit only seeks for dismissal of the appeal, and not dismissal of the suspension of sentence application. She also read extensively from the aforesaid judgment, and urged that the right of a victim is unbridled, and a victim can interfere in a criminal proceeding at any stage.

13.This raises an important question of law as to whether a victim has a right to intervene in an application for suspension of sentence under Section 389 of the Code.

14. The Code of Criminal Procedure used to adopt a highly conservative position. The State alone had the power and entitlement to launch and conduct prosecutions against the offenders. This view prevailed on account of the fact that offences were treated as an offence against the State. The victims, who had been traumatized and wounded on account of the crime were pushed to the sidelines in a criminal prosecution. Taking note of the several International Conventions and the developments of Victim–Centric Jurisprudence, the Parliament amended the Code of Criminal Procedure. By Act 5 of 2009, which came into effect from 31.12.2009, the word ”’victim”’ was inserted in Section 2. The definition reads as follows:

“2.Definitions … … …. (wa)“victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir; ” 15.Another amendment was made to Section 24(8) of the Code of Criminal Procedure. This amendment inserted a proviso to the said Sub Section. As per this proviso, discretion was vested with the Court to permit a victim to engage an Advocate of his / her choice to assist the prosecution. This came in by way of the same Amendment Act 5 of 2009.

16. Prior to these substantial amendments, a victim has been given a “right of participation” under Chapter XXIA of the Code of Criminal Procedure. This chapter relates to Plea Bargaining. Under Section 265B(4)(a), the Parliament directed the Court to ensure that the victim is not only given compensation, but also the expenses incurred while disposing off a case under that Chapter. Similar provisions conferring certain rights of the victims are found under Section 265C(a), 265C(b) and 265E. The Parliament ensured that a Victim Compensation Scheme is evolved and disbursed to victims. This is found under Section 357A. Insofar as the victims whose bodily autonomy has been violated, two special provisions have been made under Section 357B and 357C.

17. The most substantial right conferred by the Parliament was insertion of a proviso to Section 372, namely, provision relating to appeals. By this proviso, a victim has been given a right to prefer an appeal against an order of acquittal, or an order convicting a person for lesser offence, or imposing inadequate compensation. This amendment to Section 372, also came by virtue of Act 5 of 2009. The victims are no longer spectators in criminal proceeding. They are entitled as of a right to bring forth to an Appellate Court, the errors according to the victim, which have been committed by the Trial Court. Hence, the conservative view which prevailed for more than a century has been substantially watered down.

18. As observed by the Supreme Court in Mallikarjun Kodagali Vs. State of Karnataka, (2019) 2 SCC 752, the victims are no longer in the sidelines, but have been conferred with a right to file an appeal without going through the rigmarole of seeking leave from the Appellate Court.

19. While the Parliament had made several amendments as pointed out above, the provisions relating to suspension of sentence under Section 389 of Cr.P.C remained untouched insofar as a victim is concerned. The only condition that was imposed by the Amendment Act 25 of 2005, is that the Appellate Court should give an opportunity to the Public Prosecutor to receive his written objections before considering his / her petition for suspension. We should point out here, that while the Parliament had exercised its power of amendment, with respect to several provisions in the Code, it did not give a right to the victim to oppose an application for suspension of sentence.

20. It is here that we have to consider the verdict in Jagjeet Singh”’s case, cited above. It is true that reading the paragraphs referred to by Mrs.Chidambaram, it has been observed that a “victim” has a legally vested right to be heard at every stage, post the occurrence of the offence, and has an unbridled participatory right from the stage of investigation, till the culmination of the proceedings in an appeal or revision. Yet, a careful reading does not lead to the conclusion that Mrs.Chidambaram canvases of sentence.

21. The aforementioned precedent was a case where an SLP was preferred to the Supreme Court challenging the order passed by the Lucknow Bench of the Allahabad High Court. That High Court had enlarged the respondent therein on bail. It was urged before the Supreme Court that on behalf of the accused and the State of Uttar Pradesh, a victim does not have an unbridled right of hearing. Hence, the Supreme Court framed the following issue “whether the victim is entitled to be heard at the stage of adjudication of a bail application of an accused”.

22. After referring to several International Declarations and the 154th Report of the Law Commission of India, the Supreme Court came to a conclusion that a victim has a right to participate in the proceeding. In paragraph No.25 of the said judgment, the Court took note of the fact that the counsel for the “victim” was not able to make an effective submissions before the High Court, as he was disconnected, during the online proceedings. The conclusion arrived at paragraph No.26 was that, the victim has a right of fair and effective hearing at the time of granting of bail to the respondentaccused.

23. We should immediately point out that the judgment in Jagjeet Singh”’s case, was not one under Section 389 of the Code of Criminal Procedure. Rather, it dealt with the right of a victim to participate in an application filed by the accused under Section 439 of the Code of Criminal Procedure. Mrs.Nalini Chidambaram would invite us to extend this judgment even to a situation of a suspension of sentence. We are unfortunately not in a position to do so. This is because of the view taken by a Constitutional Bench of the Supreme Court in Padma Sundara Rao (dead) and others Vs. State of T.N. and others, (2002) 3 SCC 533. We extract paragraph No.9 for the said purpose:

“9.Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.”

24. We cannot apply a judgment rendered in the circumstances of Section 439 of the Code of Criminal Procedure, while dealing with an application under Section 389 of the Code of Criminal Procedure. This is especially so, when the Parliament had amended the Code of Criminal Procedure on more than one occasion, post the birth of this Millennia, in order to make the Code victim-centric, but chose not to give the victim the right to participate in an application for suspension of sentence.

25. A Court, while interpreting a statute, cannot use its pen of interpretation and indirectly amend the statute itself. It might sound as if we are taking Diceyan view, that Courts do not make law, but interpret them. The role of judiciary is very well defined by the Constitution. Within the parameters of the statute, we can certainly extend, and in some cases, stretch the language to accommodate difficult and peculiar situations. Yet, by engaging in such attempts, a Court, including a Constitutional Court, cannot break or breach the law. A Court cannot create a new right which has not been conferred by the statute. The power to create new rights is available only with the Parliament or the State Legislature, but not with the Courts.

26. The other reason why we are not inclined to take a path that Mrs.Nalini Chidambaram wants us to do, is because whenever the Parliament intended to confer a right upon a victim, it is specifically done so. We may immediately refer to The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Parliament amended the said statute by inserting a special Chapter under Chapter IVA, titled “Rights of Victims and Witnesses”. Section 15A(3) confers a right upon a victim or dependant to get timely notice of a Court proceeding, including a bail proceeding. It has been made the duty of a Special Public Prosecutor or the Prosecutor appointed by State Government, as the case may be, to keep the victims informed about any proceeding under the Act. Such a provision is not found under the Code of Criminal Procedure. The closest instance we can come across in the Code is Section 439(1A), which was inserted by Act 22 of 2018. By virtue of this provision, when a Court is dealing with an application for bail to a person accused of offences under Section 376(3), 376AB, 376DA or 376DB of the Indian Penal Code, the presence of the informant or any person authorized by him or her is made obligatory at the time of hearing of the application.

27. We may also refer to the Protection of Children from Sexual Offences Act of 2012. Under Section 40 of the POCSO Act, the family or the guardian of a child is entitled to legal assistance by a counsel of their choice for any offence under the Act. The Legal Services Authority is called upon to provide a Lawyer for the family or guardian of a child in case they are not in a position, to afford such an assistance. We should point out here that even for an offence under the POCSO Act, the right to a lawyer selected by the family or guardian of the victim is subject to Section 301 of the Code of Criminal Procedure. The Parliament has made it clear that the Public Prosecutor or the Additional Public Prosecutor alone has the right to be in charge of a case when it is under enquiry, trial or appeal. If any private person wants to engage a Lawyer in such a prosecution, the pleader so engaged does not have any independent right, but should act under the directions of the Public Prosecutor.

28. Section 301(2) also makes it clear that a private pleader appointed by a party cannot make his oral submissions in the matter, but can only file written arguments after the evidence in the case is closed. This shows the right given to a Public Prosecutor and the high position that is occupied by him / her, has not been shaken by giving a special status to the counsel engaged by the victim.

29. Under Section 225 of the Code of Criminal Procedure, it is only the Public Prosecutor who is entitled to conduct a trial before the Court of Session. In this appeal too, the State is represented by an Additional Public Prosecutor. The Code only empowers the Public Prosecutor appointed by the State or the Central Government to conduct prosecution. The right of the victim to assist the prosecution is no way curtailed. In the Criminal Justice System that has been evolved in this country, the Public Prosecutor plays a role of great importance. In fact, the Public Prosecutor should not be confused with an investigating agency. He is neither a mouth piece of the State nor one “persecuting” the accused. Instances are not unknown in this Court where a crucial aspect has been overlooked by a defence counsel, the Public Prosecutor, in discharge of his responsibilities, has brought the same to the notice of the Court.

30. If as pleaded by Mrs.Nalini Chidambaram, a complainant is permitted to participate in an application under Section 389, it will muddle the waters. This is because on account of the perceived injuries suffered by the victim, the proceeding will turn into one of persecution and not prosecution. There is every possibility that the relevant materials, which might throw some doubt in the prosecution, could be kept away by the Lawyer engaged by the victim. The fair play and smooth conduct of criminal proceedings would certainly be affected.

31. The view taken above is not an isolated one. It has found acceptance at the hands of the Supreme Court in Rekha Murarka Vs. State of West Bengal and another, (2020) 2 SCC 474. The relevant paragraphs are extracted as hereunder:

“11. In light of this, we now proceed to consider the extent to which such assistance can be accorded. As mentioned supra, the learned Senior Counsel for the appellant has argued that there may be instances where the Public Prosecutor may fail to perform his functions properly, whether deliberately or due to oversight, which may obstruct justice instead of furthering it. To meet the ends of justice in such cases, he submitted that the role of the victim”’s counsel should not be limited to filing of written arguments as provided with respect to pleaders engaged by private parties under Section 301(2). Instead, it should extend to making oral arguments and examining witnesses as well. On a perusal of the arguments advanced and the decisions relied on by both the parties, we find that such a broad mandate for the victim”’s counsel cannot be given effect to, as it is not rooted in the text of CrPC.

11.1. The use of the term “assist” in the proviso to Section 24(8) is crucial, and implies that the victim”’s counsel is only intended to have a secondary role qua the Public Prosecutor. This is supported by the fact that the original Amendment Bill to CrPC had used the words “coordinate with the prosecution”. However, a change was later proposed and in the finally adopted version, the words “coordinate with” were substituted by “assist”. This change is reflective of an intention to only assign a supportive role to the victim”’s counsel, which would also be in consonance with the limited role envisaged for pleaders instructed by private persons under Section 301(2). In our considered opinion, a mandate that allows the victim”’s counsel to make oral arguments and cross-examine witnesses goes beyond a mere assistive role, and constitutes a parallel prosecution proceeding by itself. Given the primacy accorded to the Public Prosecutor in conducting a trial, as evident from Sections 225 and 301(2), permitting such a free hand would go against the scheme envisaged under CrPC.

11.2. In some instances, such a wide array of functions may also have adverse consequences on the fairness of a trial. For instance, there may be a case where the Public Prosecutor may make a strategic call to examine some witnesses and leave out others. If the victim”’s counsel insists upon examining any of the left-out witnesses, it is possible that the evidence so brought forth may weaken the prosecution case. If given a free hand, in some instances, the trial may even end up becoming a vindictive battle between the victim”’s counsel and the accused, which may further impact the safeguards put in place for the accused in criminal trials. These lapses may be aggravated by a lack of advocacy experience on the part of the victim”’s counsel. In contrast, such dangers would not arise in the case of a Public Prosecutor, who is required to have considerable experience in the practice of law, and act as an independent officer of the court. Thus, it is important to appreciate why the role of a victim”’s counsel is made subject to the instructions of the Public Prosecutor, who occupies a prime position by virtue of the increased responsibilities shouldered by him with respect to the conduct of a criminal trial.

11.3. At the same time, the realities of criminal prosecutions, as they are conducted today, cannot be ignored. There is no denying that Public Prosecutors are often overworked. In certain places, there may be a single Public Prosecutor conducting trials in over two-three courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victim-centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the appellant that the introduction of the proviso to Section 24(8) acts as a safety valve, inasmuch as the victim”’s counsel can make up for any oversights or deficiencies in the prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Section 372 CrPC is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim”’s counsel while assisting the prosecution. However, while doing so, the balance inherent in the scheme of CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted.

11.4. In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim”’s counsel should ordinarily not be given the right to make oral arguments or examine and crossexamine witnesses. As stated in Section 301(2), the private party”’s pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim”’s counsel under the proviso to Section 24(8), as it adequately ensures that the interests of the victim are represented. If the victim”’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of CrPC, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim”’s counsel.

11.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim”’s counsel, the victim”’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim”’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 CrPC or Section 165 of the Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Uma Saha v. State of Tripura [Uma Saha v. State of Tripura, 2014 SCC OnLine Tri 859] that the victim”’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the court or the prosecution, but not putting them by himself.”

32. Though these observations are given during the course of trial, we should not forget that an appeal is a continuation of a trial. While the right of appeal of a victim under Section 372 is unqualified, substantial and unbridled, as the Parliament has not conferred such a right during the course of miscellaneous proceedings in an appeal, we are not in a position to accept Mrs.Nalini Chidambaram”’s arguments. We also have to point out that Mrs.Nalini Chidambaram”’s clients have not come forward with a written application seeking the permission to intervene in the proceedings.

33. At this juncture, we can refer to the judgment of the Supreme Court in Kanaka Rekha Naik Vs. Manoj Kumar Pradhan & another, (2011) 4 SCC 596. That was a case where the Supreme Court was called upon to decide on the correctness of the view taken by the Orissa High Court in suspending the sentence of a member of the Legislative Assembly. The said MLA had been convicted under Sections 147, 326 r/w 149 of the IPC and sentenced to undergo 7 years of rigorous imprisonment. Challenging the same, an appeal was presented to the High Court of Orissa at Cuttack. Pending the appeal, an application for suspension of sentence was moved by the MLA. The High Court had suspended the sentence, taking into consideration the appellant before it was a sitting member of a legislative assembly. Challenging the same, an SLP was presented before the Supreme Court. At the time of hearing of the appeal, it was urged on behalf of the MLA that an intervenor has no right to be heard while deciding the petition to suspend the execution of a sentence pending the appeal.

34. In support of this submission, a judgment of this Court in Srinath Prasad Vs. State, 2004 Crl L J 3635 (Madras) was pressed into service. The Supreme Court held that the High Court, in exercise of its powers under Section 482 of the Code of Criminal Procedure, may hear an intervenor while considering the pending appeal. The Supreme Court did not hold that the victim has a right to be heard, but left it to the discretion of the High Court to decide on whether to permit the intervention or not. The Supreme Court did not approve in its entirety, the view taken by the Madras High Court in Srinath Prasad”’s case. This shows that a victim may, at the discretion of the Court, get leave to participate in the proceedings, but does not possess a right to be heard. It is trite that if there is a right to be heard, the question of discretion or seeking leave of the Court does not arise.

35. Furthermore, the basic principles of natural justice requires that, an application seeking permission of the Court to intervene, hasto be filed with the copy to be served in advance on the counsel for the appellant and the Public Prosecutor. Oral opposition is not contemplated under the Code of Criminal Procedure, nor is it conducive to hear the oral objections of the victim and decide the application filed by the accused. The victim herein has not filed any application to intervene and therefore, even on that ground, the objection of Mrs.Nalini Chidambaram has to fail.

36. Insofar as the criticism on the counter filed by the Public Prosecutor is concerned, we should point out the same is an unfair one. The Inspector of Police has filed a detailed counter running into 47 paragraphs. The counter has dealt with the plea raised by the accused, and has replied to the same in a paragraph by paragraph manner. For a fact that in the last paragraph of the counter, instead of seeking for the application for suspension of sentence to be dismissed, the Inspector of Police has stated that the appeal be dismissed, cannot be a ground to contend that the written objections do not comply with the requirements of Section 389 of Code of Criminal Procedure. Perhaps, the Parliament did not give the right to a victim to oppose an application for suspension of sentence, in order to avoid the very circumstance in which we are placed today. The learned Senior Counsel for the victim is finding fault with the prosecution, rather than seeking leave of this Court to assist the prosecutor.

37. After concluding her oral submissions, Mrs.Chidambaram circulated written submissions in support of her contentions. In these written submissions, she has included few more authorities to which we shall now turn our attention to. The written arguments state that in the following cases, the Supreme Court had permitted either the victim, or the first informant to prefer an appeal before it and therefore, we should also follow the said procedure. The judgments which were cited are as follows:

(i)Ramji Prasad Vs. Rattan Kumar Jaisal and another, (2002) 9 SCC 366;

(ii)Vijay Kumar Vs. Narendra and others, (2002) 9 SCC 364;

(iii)Gomti Vs. Thakurdas and others, (2007) 11 SCC 160;

(iv)Atul Tripathi Vs. State of Uttar Pradesh and others; (2014) 9 SCC 177;

(v)Omprakash Sahni Vs. Jai Shankar Chaudhary and another, (2023) 6 SCC 123;

(vi)Lilaben Vs. State of Gujarat and another,

Crl.A.2101 of 2025 dated 21.04.2025.

38. We should point out here that in all the aforesaid cases, the parties had moved the Supreme Court from an order passed by the High Court and had invoked the jurisdiction of that Court under Article 136 of the Constitution of India. The written submissions are extremely flattering for the learned Senior Counsel compares the power that is exercised by us under Section 389 of Code of Criminal Procedure, to that of the power exercisable by the Supreme Court under Article 136 of the Constitution of India. Yet, flattery does not make law.

39. The power under Article 136 is plenary in nature and the Supreme Court can exercise the said jurisdiction against any order passed by any Court, Tribunal or Authority in this country. Section 389 of the Code of Criminal Procedure cannot even be compared to the said provision. Our scope under Section 389 is restricted. In fact, it is even more restricted than the power of this Court under Sections 438 & 439 of the Code of Criminal Procedure.

40. The Supreme Court, through a Constitution Bench has settled this issue holding that any “person aggrieved” is entitled to invoke the jurisdiction of that Court. The judgment is reported in P.S.R.Sadhanantham Vs. Arunachalam and another, (1980) 3 SCC 141. The Hon”’ble Mr.Justice V.R.Krishna Iyer, held as follows:

“7. Specificity being essential to legality, let us see if the broad spectrum spread out of Article 136 fills the bill from the point of view of “procedure established by law”. In express terms, Article 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the court. The question is whether it spells by implication, fair a procedure as contemplated by Article 21. In our view, it does. Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limit, when it chases injustice, is the sky itself. This Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Article 136. Is if merely a power in the court to be exercised in any manner it fancies? Is there no procedural limitation in the manner of exercise and the occasion for exercise? Is there no duty to act fairly while hearing a case under Article 136, either in the matter of grant of leave or, after such grant, in the final disposal of the appeal? We have hardly any doubt that here is a procedure necessarily implicit in the power vested in the summit court. It must be remembered that Article 136 confers jurisdiction on the highest court. The founding fathers unarguably intended in the very terms of Article 136 that it shall be exercised by the highest judges of the land with scrupulous adherence to judicial principles well established by precedents in our jurisprudence. Judicial discretion is canalised authority, not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed: [ Benjamin Cardozo : The Nature Of The Judicial Process, Yale University Press (1921)] “The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. It is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life’. Wide enough in all conscience is the field of discretion that remains.”

8. It is manifest that Article 136 is of composite structure, is power-cum-procedure — power in that it vests jurisdiction in the Supreme Court, and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the court process. In short, there is an in-built prescription of power and procedure in terms of Article 136 which meets the demand of Article 21.

9. We may eye the issue slightly differently. If Article 21 is telescoped into Article 136, the conclusion follows that fair procedure is imprinted on the special leave that the court may grant or refuse. When a motion is made for leave to appeal against an acquittal, this Court appreciates the gravity of the peril to personal liberty involved in that proceeding. It is fair to assume that while considering the petition under Article 136 the court will pay attention to the question of liberty, the person who seeks such leave from the court, his motive and his locus standi and the weighty factors which persuade the court to grant special leave. When this conspectus of processual circumstances and criteria play upon the jurisdiction of the court under Article 136, it is reasonable to conclude that the desideratum of fair procedure implied in Article 21 is adequately answered.

10. Once we hold that Article 136 is a composite provision which vests a wide jurisdiction and, by the very fact of entrusting this unique jurisdiction in the Supreme Court, postulates, inarticulately though, the methodology of exercising that power, nothing more remains in the objection of the petitioner. It is open to the court to grant special leave and the subsequent process of hearing are (sic is) well-established. Thus, there is an integral provision of power-cum-procedure which answers with the desideratum of Article 21 justifying deprivation of life and liberty.

11. The wider the discretionary power the more sparing its exercise. Times out of number this Court has stressed that though parties promiscuously “provoke” this jurisdiction, the court parsimoniously invokes the power. Moreover, the court may not, save in special situations, grant leave to one who is not eo nomine a party on the record. Thus, procedural limitations exist and are governed by well worn rules of guidance.

12. Sri Mridul urged that every inquisitive benefactor or offensive adventurer cannot “rush in” and upset a verdict of acquittal by resort to Article 136. This is really a matter for exercise of judicial discretion and the court can be trusted to bear in mind timehonoured practices and the values of Article 21. But no dogmatic prescription of leave under Article 136 to a non-party applicant can be laid down inflexibly. For, access to justice is not a cloistered virtue.

13. It is true that the strictest vigilance over abuse of the process of the court, especially at the expensively exalted level of the Supreme Court, should be maintained and ordinarily meddlesome bystanders should not be granted “visa”. It is also true that in the criminal jurisdiction this strictness applies a fortiori since an adverse verdict from this Court may result in irretrievable injury to life or liberty.”

41. This view of the Constitutional Bench has been consistently followed by the Supreme Court. This position has been reaffirmed in the case of Ramji Lal Bairwa Vs. State of Rajasthan, (2025) 5 SCC 117. Hence, the judgments referred to in the written arguments cannot be utilized by us for holding that a third party, including the victim within the meaning of Section 2(wa) has a right to oppose a suspension of sentence application even without filing a written application.

42. We should point out one aspect from the written arguments, namely paragraph No.10. It is urged that though there is no definition of the term “victim”, the Supreme Court had heard the mother of the victim in Lilaben”’s case. We have already referred to Section 40 of the POCSO Act, which entitles a family of the victim or a guardian to appoint a lawyer of their choice. We have also noted that under Section 40, this right to appoint a counsel by the family or the guardian, is subject to Section 301 of the Code of Criminal Procedure.

43. After we had reserved orders on 14.08.2025, Mrs.Nalini Chidambaram made a mention on the morning of 25.08.2025. She submitted that the Supreme Court has pronounced a judgment in Khem Singh Vs. State of Uttaranchal in Crl.A.Nos.1330 – 1332 of 2017 dated 31.07.2025 and circulated the said judgment. She urged that this judgment goes in her favour and therefore, this Court has to follow the said judgment and permit her to oppose the suspension of sentence application.

44. We have gone through the judgment in Khem Singh case, cited supra in detail. This judgment too in our view does not apply to the facts of the case. The circumstances in which the verdict rendered by the Supreme Court has to be seen.

45. Aggrieved by a judgment of the High Court of Uttarakhand at Nainital, one Khem Singh preferred special leave petitions before the Supreme Court. By an order dated 06.07.2017, leave was granted and the special leave petitions were converted into criminal appeals. Pending the proceedings before the Supreme Court, the appellant Khem Singh passed away. Thereafter, his son one Rajkumar filed three applications in I.A.Nos.11322 of 2025, 11329 of 2025 and 131604 of 2024. These were applications to set aside the abatement, to condone the delay in filing the application to set aside the abatement and substitute Rajkumar in favour of his father Khem Singh.

46.It was argued on behalf of Mr.Rajkumar that he is entitled to continue the appeals placing reliance upon the proviso to Section 372 of the Code of Criminal Procedure. The judgment of the Constitution Bench of the Supreme Court in P.S.R.Sadhanantham case was relied upon for the purpose of allowing the substitution application. It was also pointed out that the applicant is an injured victim.

47. These applications were opposed by the respondents / accused pleading that legal representatives can be brought on record only if an appeal is filed under Section 377 or 378 of the Code of Criminal Procedure, but not to an appeal filed by a victim under the proviso to Section 372 of the Code of Criminal Procedure. The Supreme Court framed the issue to be answered as follows:

“Whether the applicant is entitled to be substituted in the place of the original appellant to continue to prosecute these appeals.”

48. After referring to the various provisions, which we have already done so in the earlier part of the judgment, the Supreme Court held that the legal heir of a victim is also entitled to prosecute the appeal preferred by the original deceased appellant.

49. Nowhere in this judgment has the Supreme Court held that, a victim is entitled to oppose a suspension of sentence application. The judgment deals with the appeals under Sections 372 proviso and 378 (4) of the Code of Criminal Procedure. It also deals with the power of the Supreme Court under Article 136 of the Constitution of India. The Court held in paragraph No.8.2 that the right to prefer an appeal cannot be circumscribed, except by the Code itself. This means, if the Code has not provided for a given circumstance, then a person is not entitled as of a right to plead and oppose a suspension of sentence petition.

50. After having discussed these aspects, the Court came to the conclusion that the bar under Section 394(2) of the Code of Criminal Procedure does not apply to an appeal under Section 372 of the Code. The ratio of this judgment is that the heirs of a victim can also prosecute an appeal by bringing themselves on record, in case the original appellant / victim has passed on. As is pointed out in preceding paragraph No.23, a precedent has to be read in line with the factual situation and not as if it is a legislative enactment. Hence, the judgment in Khem Singh”’s case also does not come to the rescue of Mrs.Chidambaram.

51. We have to point out that even in Khem Singh”’s case, the son of the original appellant filed a written application seeking to bring himself on record. It was not an oral plea on the basis on which the judgment was rendered, as is being done in the present case.

52. In the light of the above discussion, we are not accepting the arguments made by Mrs.Nalini Chidambaram.

53. Accordingly, these Criminal Miscellaneous Petitions stand allowed, and the sentences imposed on the petitioners/accused, are suspended on the following conditions:-

(i) The petitioners shall execute a bond for a sum of Rs.10,000/- each, with two sureties each, for a like sum to the satisfaction of the learned Principal Sessions Judge, Tiruppur; (ii) The petitioners and the sureties shall affix their photographs and Left Thumb Impression in the surety bonds and the Trial Court may obtain a copy of their Aadhar card or Bank pass Book and mobile numbers to ensure their identity; and (iii) The petitioners shall appear before the Trial Court on the first working day of every month at 10.30 A.M., until the disposal of the appeal and if they are not able to appear before the Trial Court on any day, they shall make arrangements to file an application under Section 317 Cr.P.C. and shall appear before the Trial Court on any other day, in lieu of the date of their absence, as directed by the Trial Court.