Sunday 29 January 2023

Whether Bail Order Passed in an offence under SC & ST Atrocities Act Without Notice To Victim A Nullity, Liable To Be Recalled?

 It is to be noted that in this regard that, as per Section

15A(3) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989, a victim or his dependent

shall have the right to reasonable, accurate and timely notice of

any court proceedings including any bail proceedings and the

said Public Prosecutor or the State Government shall inform the

victim about the proceedings under the Act. In this case, as one

of the offences were under the provisions of the Schedules

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,

a notice was mandatory as contemplated under the above

provision. Therefore, issuance of an order without complying with such statutory mandate makes the order nullity. The Hon'ble Supreme Court in State of Punjab v. Davinder Pal Singh Bhullar [2011 (14) SCC 770], it was observed as follows:

“If a judgment has been pronounced without

jurisdiction or in violation of principles of natural justice

or where the order has been pronounced without giving

an opportunity of being heard to a party affected by it or

where an order was obtained by abuse of the process of

Court which would really amount to its being without

jurisdiction, inherent powers can be exercised to recall

such order for the reason that in such an eventuality the

order becomes a nullity and the provisions of Section

362 Cr.P.C. would not operate. In such eventuality, the

judgment is manifestly contrary to the audi alteram

partem rule of natural justice. The power of recall is

different from the power of altering/reviewing the

judgment. However, the party seeking recall/alteration

has to establish that it was not at fault..............” {Para 6}

7. After referring to the observations made by the

Hon'ble Supreme Court in the said decision, this Court in

Pushpangathan's case as well as Babu @ Achayan's case held

that, when the order passed by this Court in a criminal proceeding was without jurisdiction and without notice to the affected parties and thereby in violation of the principles of natural justice, the same can be recalled. In this case, despite the fact that there was a mandate as contemplated under Section 15A(3) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the order is seen passed without giving a proper notice to the victim. Therefore, it is an order issued not only in violation of the statutory provisions and also in violation of principles of natural justice. This Court passed the order without taking note of the fact that, no such notice was served upon the  affected parties. In such circumstances, I am of the view that, the order passed by this Court is liable to be recalled in the light of the principles laid down by the Hon'ble Supreme Court in Davinder Pal Singh Bhullar's case cited supra.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.M.APPL.NO.4/2022 IN BAIL APPL. NO. 330 OF 2022

BABU T., S/O CHACKO THOMAS, Vs  BYJU SEBASTIAN

PRESENT

 MR.JUSTICE ZIYAD RAHMAN A.A.

Monday, the 23rd day of January 2023 

This is an application submitted by the defacto complainant,

who is impleaded as additional 3rd respondent in this bail

application. The aforesaid bail application was disposed of by this

Court as per order dated 29.04.2022. The bail application was

submitted by the petitioners, who are the accused in crime

No.1308/2021 of Ranni Police Station, which was registered for the

offences punishable under Section 506 read with Section 34 of the

Indian Penal Code and Sections 3(1)(r) and 3(1)(s) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989.

2. In this case, even though initially, the bail application

was filed without impleading the defacto complainant, subsequently,

an application was filed to that effect and the same was allowed and

accordingly, he was impleaded as the 3rd respondent. On

19.04.2022, when the matter came up for consideration, this Court

passed an order directing the Station House Officer, Ranni Police

Station to serve notice on the additional 3rd respondent and the

matter was directed to be posted after service of notice. Even

though, no subsequent posting date is seen recorded in the

proceeding sheet of this case, but in the history of the case

hearing as uploaded in the official website of this Court, the next

posting date is shown as 20.05.2022. It is evident from the

endorsement made the proceeding sheet of the bail application

that, the order dated 19.04.2022 was communicated to the Public

Prosecutor on 21.04.2022. It is seen that, the case was again

came up on 26.04.2022, and from that date the matter was

posted to 29.04.2022. On 29.04.2022, the bail application was

disposed of. The specific case of the 3rd respondent is that, the

application was disposed of without notice to them and therefore

the same is a nullity.

3. The application to recall the said order was submitted

in such circumstances. The learned counsel for the petitioner

places reliance upon the decision rendered by this Court in

Pushpangathan v. State of Kerala [2015 (3) KLT 105] and Babu

@ Achayan v. Thankachan [2022 (2) KLT 394] to support the

contention that, this Court is well within its powers to recall the

order passed by invoking the power under Section 482 Cr.P.C.

when it is found that, the order was passed without giving an

opportunity of being heard to a party affected and thus an order

passed in violation of principles of natural justice.

4. On the other hand, the learned counsel for the

petitioner in the bail application would oppose the said

contentions and prayers.

5. After considering all the relevant aspects, I am of the

view that, there is some force in the contention put forward by the

learned counsel for the 3rd respondent. As rightly pointed out by

the learned counsel, even though a notice was directed to be

served to the 3rd respondent through the Station House Officer,

apparently the same is not served upon him. It is evident that,

the said order was pronounced on 19.04.2022 and the same was

communicated to the Public Prosecutor on 21.04.2022 and

immediately on 26.04.2022 the matter was again taken up despite

the fact that next posting date was shown as 20.05.2022. Later,

the matter is seen disposed of on 29.04.2022. Therefore, it is

evident that the disposal of the bail application was without notice

to the 3rd respondent.

6. It is to be noted that in this regard that, as per Section

15A(3) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989, a victim or his dependent

shall have the right to reasonable, accurate and timely notice of

any court proceedings including any bail proceedings and the

said Public Prosecutor or the State Government shall inform the

victim about the proceedings under the Act. In this case, as one

of the offences were under the provisions of the Schedules

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,

a notice was mandatory as contemplated under the above

provision. Therefore, issuance of an order without complying with

such statutory mandate makes the order nullity. The Hon'ble

Supreme Court in State of Punjab v. Davinder Pal Singh Bhullar

[2011 (14) SCC 770], it was observed as follows:

“If a judgment has been pronounced without

jurisdiction or in violation of principles of natural justice

or where the order has been pronounced without giving

an opportunity of being heard to a party affected by it or

where an order was obtained by abuse of the process of

Court which would really amount to its being without

jurisdiction, inherent powers can be exercised to recall

such order for the reason that in such an eventuality the

order becomes a nullity and the provisions of Section

362 Cr.P.C. would not operate. In such eventuality, the

judgment is manifestly contrary to the audi alteram

partem rule of natural justice. The power of recall is

different from the power of altering/reviewing the

judgment. However, the party seeking recall/alteration

has to establish that it was not at fault..............”

7. After referring to the observations made by the

Hon'ble Supreme Court in the said decision, this Court in

Pushpangathan's case as well as Babu @ Achayan's case held

that, when the order passed by this Court in a criminal proceeding

was without jurisdiction and without notice to the affected parties

and thereby in violation of the principles of natural justice, the

same can be recalled. In this case, despite the fact that there

was a mandate as contemplated under Section 15A(3) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, the order is seen passed without giving a proper

notice to the victim. Therefore, it is an order issued not only in

violation of the statutory provisions and also in violation of

principles of natural justice. This Court passed the order without

taking note of the fact that, no such notice was served upon the

affected parties. In such circumstances, I am of the view that, the

order passed by this Court is liable to be recalled in the light of

the principles laid down by the Hon'ble Supreme Court in

Davinder Pal Singh Bhullar's case cited supra.

In the result, this Crl.M.A. is allowed and the bail application


is restored into the file. Post for hearing.


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