Law Web: Whether the court must issue notice to Victim even if accused has not made out ground for releasing him on bail in SC & ST Atrocities Act?

At the cost of repetition, we say that the present order

does not speak that the notice was issued to the informant and

he was heard in view of the right that has been given under

Section 15A (1) and (3) of the Atrocities Act. It cannot be said

that as case is not made out for releasing an accused involving

in the offence under the Atrocities Act; it is not necessary to

issue notice to the informant. It is the first step that is required

to be taken after the presentation of the application for bail.

When right has been given to the informant or the victim, then

notice should be issued and he or she should be heard and then

only either order can be passed, allowing or rejecting the

application. {Para 9}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.513 OF 2023

Kishor Shivdas Shinde Vs The State of Maharashtra,

CORAM: SMT. VIBHA KANKANWADI AND

ABHAY S. WAGHWASE, JJ.

DATE : 21st JULY, 2023

JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :

1. Admit.

2. Present Appeal has been filed by the original accused

under Section 14-A of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act (for short “the Atrocities

Act”) to challenge the order dated 15th March 2023 by the

learned Special Judge under the Atrocities Act / the Additional

Sessions Judge, Shahada, District-Nandurbar thereby rejecting

the bail application under Section 439 of the Code of Criminal

Procedure, at Exhibit-27 in Sessions Case No.52 of 2020.

3. Heard Mr. Choudhari, learned Advocate appearing for the

appellant, Mr. Phule, learned APP appearing for respondent No.1

and Ms. Manjushri Narwade, learned Advocate appearing for

respondent No.2.

4. It has been vehemently submitted on behalf of the

appellant that the appellant came to be arrested on 24th October

2020 and since then he is in jail. The charge-sheet is filed,

therefore, his custody is not required for the purpose of

investigation. Present respondent No.2 filed the First Information

Report (for short “the FIR”) contending that his daughter, who

was aged 15 years, taking education in 10th standard in 2020,

went missing in the intervening night of 22nd October, 2020 and

23rd October 2020. Search was undertaken but she could not be

found. Around 6.00 a.m. on 23rd October 2020, her Odhani was

found in front of house which was stained with blood, but her

whereabouts could not be found. Even police along with villagers

took intensive search and then the dead body of the girl was

found in the field of one Sharad Babulal Patil and it appears that

at the time of FIR, suspicion was expressed against the present

appellant, as he had expressed love for the girl and the girl was

not ready to go with him.

5. Learned Advocate for the appellant further submitted that

perusal of the charge-sheet would show that the case of the

prosecution is resting on extra judicial confession alleged to have

been given to one Vijay Padvi, that too on phone. However, at

this stage the call details have not been collected and attached.

Such statement of the said person has been recorded on 26th

October 2020 i.e. three days after the incident. With such

evidence the appellant need not be kept behind bars. The

appellant is ready to abide by the terms of the bail. The learned

Special Judge absolutely not considered all the facts while

dealing with application Exhibit-27.

6. Per contra the learned APP as well as learned Advocate

appearing for respondent No.2 strongly opposed the Appeal and

submitted that the learned Special Judge has used the discretion

properly in rejecting the bail application. Perusal of the

postmortem report would show that there were six surface

wounds on the dead body. There was also fracture of C7

vertebrae on Palpation. The probable cause of death is “Shock

due to cut throat injury (unnatural). Associated findings –

Genital injury.” The throat of the girl was cut with sharp weapon

and the said weapon has been discovered by the present

appellant. The girl was residing adjacent to the house of the

accused and therefore, he had knowledge about the caste of the

girl. The girl is member of the scheduled tribe and therefore,

offence under Section 3(2)(v) of the Atrocities Act is involved in

this case. The family members are saying that the girl was not

ready to flee with the accused as she was minor, though the

accused used to say that he loves her. Witness Vijay Padvi

appears to be friend of the appellant and he says that around

9.00 p.m. on 22nd October 2020 while accused and he himself

were chitchatting, accused expressed that he loves the girl and

he is therefore asking her to come along with him but she is not

ready, if the girl does not accompany him that night, then he

would kill her. Then the friend had advised the accused that he

should not do such act. But then in the next morning around

8.00 a.m. to 9.00 a.m. said friend received phone call from

accused saying that he is repenting for killing the girl. At present

this is the evidence against the accused, which is sufficient to

prove offence against him and therefore, this is not a fit case to

use the discretion.

7. Before we consider the facts of the case and see as to

whether the trial Court has used the discretion appropriately or

not, we would like to say that the learned Special Judge has

written a very cryptic order, that too, without following the

mandatory provisions. It is in fact high time to tell all the Special

Judges under the Atrocities Act, as to what they should consider

while dealing with the bail applications. This has been told again

and again but still we do not find any improvement in the same.

In Criminal Appeal No.919 of 2022 ( Amol s/o Babasaheb

Sonawane @ Sonu Fitter vs. the State of Maharashtra and

another) and the companion matters, decided by this Court on

20th February 2023, this Court has made following observations

in Paragraph Nos.12 to 15 of the order:-

“ 12. Further, before going to consider the merits another

situation has arisen which is of wide importance, as this

Court is coming across various such orders by Special

Judges under the Atrocities Act that they are not following

observing the mandatory requirement under Section 15-A of

the Atrocities Act. Section 15-A of the Atrocities Act gives

statutory right to the victim to get the knowledge about the

proceedings before the Court including bail application.

13. In Hariram Bhambhi vs. Satyanarayan and

another (supra), it has been observed that victims are

often relegated to the role of being a spectator in the

criminal justice system. The victims of crime often face

hurdles in accessing justice from the stage of filing the

complaint to the conclusion of the trial and therefore, those

rights of the victims have been acknowledged by the Hon’ble

Supreme Court as well as those are incorporated under

Section 15-A of the Atrocities Act. In connection with the

said provision, in the aforesaid decision, it has been held in

Paragraph Nos. 13, 14, 15 and 18 as under:-

“ 13. Section 15A of the SC/ST Act contains important

provisions that safeguard the rights of the victims of

caste-based atrocities and witnesses. Sub-sections (3)

and (5) of Section 15A specifically make the victim or

their dependent an active stakeholder in the criminal

proceedings. These provisions enable a member of the

marginalized caste to effectively pursue a case and

counteract the effects of defective investigations. Subsections

(1) to (5) of Section 15A are extracted below:

“15A(1) It shall be the duty and responsibility of the

State to make arrangements for the protection of

victims, their dependents, and witnesses against any

kind of intimidation or coercion or inducement or

violence or threats of violence.

(2) A victim shall be treated with fairness, respect and

dignity and with due regard to any special need that

arises because of the victims age or gender or

educational disadvantage or poverty.

(3) A victim or his dependent shall have the right

to reasonable, accurate, and timely notice of any

Court proceeding including any bail proceeding

and the Special Public Prosecutor or the State

Government shall inform the victim about any

proceedings under this Act.

(4) A victim or his dependent shall have the right to

apply to the Special Court or the Exclusive Special Court,

as the case may be, to summon parties for production of

any documents or material, witnesses or examine the

persons present.

(5) A victim or his dependent shall be entitled to

be heard at any proceeding under this Act in

respect of bail, discharge, release, parole,

conviction or sentence of an accused or any

connected proceedings or arguments and file

written submission on conviction, acquittal or

sentencing.”

(emphasis added)

14. Sub-section (3) of Section 15A confers a statutory

right on the victim or their dependents to reasonable,

accurate, and timely notice of any court proceeding

including a bail proceeding. In addition, sub-section (3)

requires a Special Public Prosecutor or the State

Government to inform the victim about any proceeding

under the Act. Sub-section (3) confers a right to a prior

notice, this being evident from the use of the

expression “reasonable, accurate, and timely notice of

any court proceeding including any bail proceeding”.

Sub-section (5) provides for a right to be heard to the

victim or to a dependent. The expression “dependent”

is defined in Section 2(bb) thus:

“2(bb) “dependent” means the spouse, children,

parents, brother and sister of the victim, who are

dependent wholly or mainly on such victim for his

support and maintenance;”

15. The provisions of sub-section (3) which stipulate

the requirement of notice and of sub-section (5) which

confers a right to be heard must be construed

harmoniously. The requirement of issuing a notice

facilitates the right to be heard.”

“ 18. The finding of the Gujarat High Court that the

requirement of issuing notice of a court proceeding to a

victim or a dependent under Section 15A(3), in order to

provide them an opportunity of being heard, is

mandatory, finds echo in multiple High Court decisions

13 including a decision of the Rajasthan High Court 14.

We find ourselves in agreement with the proposition and

hold that sub-sections (3) and (5) of Section 15A are

mandatory in nature.”

14. Further, it has been observed in Paragraph No.22

in the aforesaid decision of Hariram Bhambhi vs.

Satyanarayan and another (supra), that:-

“ 22. We also emphasize that sub-section (3) of Section

15A provides that a reasonable and timely notice must

be issued to the victim or their dependent. This would

entail that the notice is served upon victims or their

dependents at the first or earliest possible instance. If

undue delay is caused in the issuance of notice, the

victim, or as the case may be, their dependents, would

remain uninformed of the progress made in the case

and it would prejudice their rights to effectively oppose

the defense of the accused. It would also ultimately

delay the bail proceedings or the trial, affecting the

rights of the accused as well.”

15. We are constrained to observe that, many Courts/

Special Judges are not following the said procedure which

is in fact in derogation to the mandate of the law.

Secondly, even if the notice is given, the order that is

passed on the bail application is many times silent about

the submissions/ say put forth by the victim. When the

statutory right is given of being heard to the victim, then

the natural corollary would be that those submissions

which have been put forth by the victim should be

reflected in the order by the learned Special

Judge………………….”

8. Further, it will not be out of place to mention here

that, again in Criminal Appeal No.293 of 2023 (Raees

Hanif Sayyed vs. the State of Maharashtra and another),

decided by this Court on 10th April 2023, the above

Paragraphs from the decision in Criminal Appeal No.919

of 2022, (referred above), were taken into consideration

and then this Court has made following observations in

Paragraph No.8 of the order:-

“ 8. The aforesaid order passed by this Court in

Criminal Appeal No.919 of 2022 and other

companion matters, has been circulated throughout

the State and still the learned Special Judge,

Parbhani, in the impugned order, is silent as to

whether he had heard the victim- informant or not.

We would like to take the things further. When the

victim in such matters are served and if they are

unable to engage Advocate because of their financial

constraints or otherwise, then such Special Courts

should provide legal aid to those victims. The Legal

Services Authorities Act provides for giving free legal

aid to the members of the scheduled caste or

scheduled tribe. Further, it can also be said that such

legal aid should be given or Amicus Curiae should be

appointed to represent the cause of such victim even

in case of failure of the victim to remain present

after due service of notice. When it is a substantive

right that has been given to a particular class of

litigants, then it should be the endeavour of the

Courts to respect the said legal right. “

9. At the cost of repetition, we say that the present order