JUDGMENT :

Goutam Bhaduri, J.

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 2nd 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:-

“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 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 c