TaxTMI 
TaxTMI 
2021 (10) TMI 1443
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Niwas in a vehicle at about 3.00 o'clock. The local residents informed the appellant that the dead body of Ram Niwas was thrown out of a vehicle at a specified place in the area of Police Station Kishangarh. Investigation commenced on the basis of the report lodged by the appellant. Since the deceased belonged to a Scheduled Caste, offences punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 "SC/ST Act" were added. The first respondent was arrested. On 6 September 2018, a final report under Section 173 of the Code of Criminal Procedure "CrPC" was submitted by the Investigating Officer against Kishan Lal and three other accused of which the first respondent was named as A-4. 3. Aggrieved by the rejection of his application for bail by the Sessions Court, the first respondent moved the High Court of Rajasthan seeking enlargement on bail S.B. Criminal Appeal No.1132/2019 . The complainant was represented by counsel, notice having been given to him under sub-sections (3) and (5) of 15A of the SC/ST Act. The appeal was withdrawn on 8 August 2019. 4. On 25 September 2019, the first respondent instituted an application Criminal Miscellane....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llant is behind the bars since 11.06.2018. 3. Learned Public Prosecutor has opposed the appeal. 4. Keeping in view the facts and circumstances of the case, it would be just and expedient to order the release of the appellant on bail. 5. The order dated 25.09.2019 passed by the learned Special Judge, SC/ST (Prevention of Atrocities Cases), Ajmer is quashed and set-aside and this appeal is accordingly allowed and it is directed that accused appellant Satyanarayan s/o Shri Sohandas shall be released on bail provided he furnishes a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) together with two sureties in the sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) each to the satisfaction of the learned Trial Court with the stipulation that he shall appear before that Court and any Court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so." 6. The appellant moved the High Court under Section 439(2) of CrPC for cancellation of bail. S.B. Criminal Bail Cancellation Application No.21/2020 In the meantime, another Single Judge of the High Court, by an order dated 29 January 2021 rejected the applicatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ellation of bail; (iv) In the order dated 7 November 2019 the Single Judge merely recorded the statement of counsel for the accused that the spouse of the deceased had in the course of her statement alleged that the deceased had gone with her brother who had obtained an insurance policy in the name of the deceased and it was Kishan Lal, the brother-in-law of the deceased, who had committed the murder with the help of his friends; (v) The final report which has been submitted after investigation on 6 September 2018 prima facie reveals the complicity of the first respondent in the murder of the deceased. The investigation has revealed that the first respondent together with two of the co-accused participated in the murder and there is a CCTV camera footage; and (vi) Besides the statements of the spouse and the mother of the deceased and of an independent witness under Section 161 CrPC, the call data records of the accused have been obtained for the period between 1 June 2018 and 11 June 2018. The call data records indicate that all the accused were in close contact with each other during the said period and proximate to the time of the offence. The call data records also ind....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onment for one year. 10. The SC/ST Act has been enacted by the Parliament to effectuate a salutary public purpose of achieving the fulfillment of constitutional rights of the Scheduled Castes and Scheduled Tribes. The Statement of Objects and Reasons accompanying the introduction of the Bill in 1989 contains the following elucidation: "1. Despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons. 2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of un-touchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of violence"(emphasis supplied)." 12. Investigations in India are the exclusive domain of the police, where victims are often relegated to the role of being a spectator in the criminal justice system. Victims of crime often face significant hurdles during investigation and prosecution. Scheduled Castes and Scheduled Tribes specifically suffer on account of procedural lapses in the criminal justice system. They face insurmountable hurdles in accessing justice from the stage of filing the complaint to the conclusion of the trial. Due to the fear of retribution from members of upper caste groups, ignorance or police apathy, many victims do not register complaints in the first place. If victims or their relatives muster up the courage to approach the police, the police officials are reluctant to register complaints or do not record allegations accurately. Eventually, if the case does get registered, the victims and witnesses are vulnerable to intimidation, violence and social and economic boycott. C Prabhu, Protecting the Rights of Victims and Witnesses in Caste-Based Atrocities, Centre for Law and Policy Research Blog, available at https://clpr.org.in/blog/protecting-the-rights-of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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;" The pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d not mandatory. As is evident from a plain reading of the section quoted above, the victim must be served with notice of the bail application and must be provided an opportunity to be heard and advance argument. When a statute specifically provides a right to the victim/dependent to be heard at any proceedings in respect of bail, and if the court fails to provide such opportunity, then there is an inherent failure of justice. This procedure, in our opinion, cannot be bypassed. The non-compliance of the provision of Section 15A(3) of the Amendment Act would render an order null and void. If Section 15A(3) of the Amendment Act is to be construed as directory, then the very object and purpose with which such provision is enacted would got frustrated." 61. In such circumstances referred to above, we hold that Section 15A(3) of the Amendment Act is mandatory and not directory" (emphasis supplied). 17. 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 Ajeet Chaudhary v.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e past. They continue to be a reality in our society even today. Hence the statutory provisions which have been enacted by Parliament as a measure of protecting the constitutional rights of persons belonging to the Scheduled Castes and Scheduled Tribes must be complied with and enforced conscientiously. There has been an evident breach of the statutory requirements embodied in sub-sections (3) and (5) of Section 15A in the present case. 21. 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. 22. Quite apart from the infraction of the provisions of the SC/ST Act, there has been no application of mind by the Single J....