HARIRAM BHAMBHI versus SC/ST on 29 October 2021

[2021] 8 S.C.R. 855

HARIRAM BHAMBHI

v.

SATYANARAYAN & ANR.

(Criminal Appeal No. 1278 of 2021)

OCTOBER 29, 2021

[DR DHANANJAYA Y CHANDRACHUDAND B. V. NAGARATHNA, JJ.]

SC/ST (Prevention of Atrocities) Act, 1989: ss.15A(3) and15A(5) – Rights of victims – Notice under s.15A not issued to victim/dependents while hearing bail application of accused – Effect of –Held: Sub-sections (3) and (5) of s.15A specifically make the victimor their dependent an active stakeholder in the criminal proceedings– These provisions enable a member of the marginalized caste toeffectively pursue a case and counteract the effects of defectiveinvestigations – 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 anybail proceeding” – Sub-section (5) provides for a right to be heardto the victim or to a dependent – 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 defect in not issuing notice to the victim or their dependentand depriving them of the opportunity to be heard in the concernedproceedings (for grant of bail) cannot be cured by providing thema hearing in a proceeding that arose subsequently (for cancellationof bail) – Compliance with the principles of natural justice must beobserved at every stage under the mandate of the statute.

SC/ST (Prevention of Atrocities) Act, 1989: s.15A – Unduedelay in issuing notice to the victim – Held: Sub-section (3) of s.15Aprovides that a reasonable and timely notice must be issued to thevictim or their dependent – This would entail that the notice is servedupon victims or their dependents at the first or earliest possibleinstance – If undue delay is caused in the issuance of notice, thevictim, or as the case may be, their dependents, would remainuninformed of the progress made in the case and it would prejudicetheir rights to effectively oppose the defense of the accused – It

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Awould also ultimately delay the bail proceedings or the trial,affecting the rights of the accused as well.

Bail: Duty of court while granting bail – Considerations whilegranting bail – In the instant case, High Court held that it was justand expedient to release the first respondent on bail “keeping inBview the facts and circumstances of the case” – The bail order didnot mention factors that are relevant for the grant of bail, whichare (i) the seriousness and gravity of the offence; and (ii) the roleattributed to the first respondent in the commission of the crime –Thus, the order of the High Court in granting bail cannot passmuster – The duty to record reasons cannot be obviated by recordingCsubmissions, followed by an omnibus “in the facts andcircumstances” formula – Brief reasons which indicate the basisfor granting bail are essential, for it is the reasons adduced by thecourt which indicate the basis of the order – Judgment/Order –Reasoned order – SC/ST (Prevention of Atrocities) Act, 1989.DSC/ST (Prevention of Atrocities) Act, 1989: Object ofenactment – Discussed.

Allowing the appeal, the Court

Held: 1. The SC/ST Act has been enacted by the ParliamentEto effectuate a salutary public purpose of achieving the fulfillmentof constitutional rights of the Scheduled Castes and ScheduledTribes. Section 15A, which comes under Chapter IV-A of the SC/ST Act titled ‘Rights of victims and witnesses’, was introducedby way of the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Amendment Act, 2015, which came intoFeffect on 26 January 2016. [Paras 10, 11][865-F; 866-G-H]

Conclusion

2. Investigations in India are the exclusive domain of thepolice, where victims are often relegated to the role of being aspectator in the criminal justice system. Victims of crime oftenface significant hurdles during investigation and prosecution.GScheduled Castes and Scheduled Tribes specifically suffer onaccount of procedural lapses in the criminal justice system. Theyface insurmountable hurdles in accessing justice from the stageof filing the complaint to the conclusion of the trial. Due to thefear of retribution from members of upper caste groups, ignorance H

or police apathy, many victims do not register complaints in thefirst place. If victims or their relatives muster up the courage toapproach the police, the police officials are reluctant to registercomplaints or do not record allegations accurately. Eventually, ifthe case does get registered, the victims and witnesses arevulnerable to intimidation, violence and social and economicboycott. Further, many perpetrators of caste-based atrocities getaway scot-free due to shoddy investigations and the negligenceof prosecuting advocates. This results in low conviction ratesunder the SC/ST Act giving rise to the erroneous perception thatcases registered under the Act are false and that it is beingmisused. On the contrary, the reality is that many acquittals are aresult of improper investigation and prosecution of crime, leadingto insufficient evidence. This is evident from the low percentageof cases attracting the application of the provisions of the PenalCode relating to false complaints as compared to the rate ofacquittals. [Para 12][867-C-G]

3. Sub-section (3) of Section 15A confers a right to a priornotice, this being evident from the use of the expression“reasonable, accurate, and timely notice of any court proceedingincluding any bail proceeding”. Sub-section (5) provides for aright to be heard to the victim or to a dependent. The provisionsof sub-section (3) which stipulate the requirement of notice andof sub-section (5) which confers a right to be heard must beconstrued harmoniously. The requirement of issuing a noticefacilitates the right to be heard. [Para 14][868-G-H; 869-A-C]

Sunita Gandharva v. State of MP & Anr. 2020 SCCOnLine MP 2193; Hemal Ashwin Jain v. Union of IndiaR/Special Civil Application No. 6369 of 2020 – reliedon.

4. In the present case, it is evident that the right to noticeand to be heard were violated. Initially, when S.B. Criminal AppealNo.1132/2019 was heard by the High Court against the denial ofbail by the Special Judge in the first bail application, the appellantwas present through counsel. The appeal under Section 14A(2)of the SC/ST Act was not pressed by the first respondent and was AB

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Aaccordingly dismissed. When the High Court entertained S.B.Criminal Appeal No.2518/2019 on 7 November 2019, no noticewas given to the appellant. The High Court allowed the applicationfor bail. When the appellant moved the High Court for cancellationof bail, the Single Judge took the view that compliance with theprinciples of natural justice at that particular stage would cureBthe deficiency. There has been a clear infraction of the mandateof the statute. Sub-sections (3) and (5) have been introduced bythe Parliament to ensure a right to be heard to the person againstwhom the offence is committed or to the dependents. Theseprovisions must be scrupulously observed. The defect in notCissuing notice to the victim or their dependent and deprivingthem of the opportunity to be heard in the concerned proceedings(for grant of bail) cannot be cured by providing them a hearing ina proceeding that arose subsequently (for cancellation of bail).Compliance with the principles of natural justice must be observed at every stage under the mandate of the statute. [Paras 18,D19][871-A-F]

Ajeet Chaudhary v. State of UP 2021 SCC OnLine All417; Basheer M. v. State of Kerala 2020 SCC OnLineKer 1675; Marenna and Ors. v. The State & Ors. 2020SCC OnLine Kar 1077; Abid v. State of Rajasthan 2020ESCC OnLine Raj 2703 – relied on.

5. Atrocities against members of the Scheduled Castes andScheduled Tribes are not a thing of the past. They continue to bea reality in our society even today. Hence the statutory provisionswhich have been enacted by Parliament as a measure of protectingFthe constitutional rights of persons belonging to the ScheduledCastes and Scheduled Tribes must be complied with and enforcedconscientiously. There has been an evident breach of thestatutory requirements embodied in sub-sections (3) and (5) ofSection 15A in the present case. [Para 20][871-F-G]G

6. Sub-section (3) of Section 15A provides that a reasonableand timely notice must be issued to the victim or their dependent.This would entail that the notice is served upon victims or theirdependents at the first or earliest possible instance. If unduedelay is caused in the issuance of notice, the victim, or as the H

case may be, their dependents, would remain uninformed of theprogress made in the case and it would prejudice their rights toeffectively oppose the defense of the accused. It would alsoultimately delay the bail proceedings or the trial, affecting therights of the accused as well. [Para 21][871-H; 872-A-B]

Ramesh Bhavan Rathod v. Vishanbhai HirabhaiMakwana (2021) 6 SCC 230 – relied on.

7. While granting bail to the first respondent, the HighCourt in its order only recorded the submission of counsel forthe first respondent that PW-2, the spouse of the deceased, hadin the course of her statement recorded during the trial, statedthat the deceased had gone with her brother ‘K’; that ‘K’ hadobtained an insurance policy in the name of the deceased andthat the murder had been committed by ‘K’ to obtain the proceedsof the insurance policy, with the help of his friends. There isabsolutely no reasoning in the order of the High Court grantingbail, after recording the submissions of the first respondent’scounsel apart from noting that the public prosecutor had opposedthe bail. The High Court held that it was just and expedient torelease the first respondent on bail “keeping in view the factsand circumstances of the case”. Such orders cannot pass muster.The duty to record reasons cannot be obviated by recordingsubmissions, followed by an omnibus “in the facts andcircumstances” formula. Brief reasons which indicate the basisfor granting bail are essential, for it is the reasons adducedby the court which indicate the basis of the order. [Para 23][873-A-D]

8. Before the High Court granted bail by its order dated 7November 2019, the final report had been submitted on 6September 2018. The final report under Section 173 CrPCcontains a detailed analysis of the call data records of the accusedwho were in continuous contact with each other, as well as oftheir location in close proximity to the date and time of theincident. The bail order does not make any mention of factorsthat are relevant for the grant of bail, which are (i) the seriousnessand gravity of the offence; and (ii) the role attributed to the firstrespondent in the commission of the crime. In this backdrop, the A

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Aorder of the High Court in granting bail cannot pass muster.Aggrieved by the order, the appellant had filed an applicationseeking its recall. The Single Judge of the High Court by theimpugned order dated 8 June 2021 simply reiterated that thebail was granted on the basis of the statement of the wife of thedeceased, PW.2, once again failing to show any engagement withBthe considerations that govern the grant of bail. The order grantingbail to the first respondent shall stand set aside. [Paras 24,25][873-D-H]

Case Law Reference

(2021) 6 SCC 230relied onPara 22CCRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1278 of 2021

From the Judgment and Order dated 08.06.2021 of the High Courtof Judicature for Rajasthan at Jaipur Bench, Jaipur in SB Crl. Misc.DCancellation Bail Application No.21 of 2020.

Ajit Kumar Thakur, Ram Nath, Ashok Kumar Vashishtha, SandivKalia, Satbir Singh Pillania, Ms. Reena Rao, Nand Ram, Dr. SushilBalwada, Advs. for the Appellant.

Manish Sharma, Kumar Dushyant Singh, Chetanya Singh, IleshEShukla, Ms. Ria Sachthey, Milind Kumar, Advs. for the Respondents.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

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2. On 9 June 2018, the appellant lodged a report at Police StationKishangarh, District Ajmer on the basis of which FIR No.116/2018 foroffences punishable under Sections 302 and 201 of the Penal Code wasregistered. In his complaint, the appellant stated that on 8 June 2018, hisyounger brother Ram Niwas had gone out for carrying out labour work.GThe appellant was informed by his mother that evening that Ram Niwaswas away to meet his brother-in–law, Kishan Lal, and that he would notreturn for the day. On 9 June 2018, Ram Niwas’s spouse informed theappellant that her brother Kishan Lal had taken Ram Niwas in a vehicleat about 3.00o’clock. The local residents informed the appellant that thedead body of Ram Niwas was thrown out of a vehicle at a specifiedHplace in the area of Police Station Kishangarh. Investigation commenced on the basis of the report lodged by the appellant. Since the deceasedbelonged to a Scheduled Caste, offences punishable under the ScheduledCastes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989[1]were added. The first respondent was arrested. On 6 September 2018,a final report under Section 173 of the Code of Criminal Procedure[2 ]wassubmitted by the Investigating Officer against Kishan Lal and three otheraccused of which the first respondent was named as A-4.

3. Aggrieved by the rejection of his application for bail by theSessions Court, the first respondent moved the High Court of Rajasthanseeking enlargement on bail[3]. The complainant was represented bycounsel, 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 anapplication[4 ]before the Special Judge, SC/ST(Atrocities Prevention Cases)Ajmer for the grant of bail. The application for bail was rejected by theSpecial Judge by an order dated 25 September 2019. The Special Judgenoted that the statements of five witnesses – PW.1 Suresh, PW.2 Smt.Aaram Devi, PW.3 Hari Ram, PW.4 Ramshankar and PW.5 Gokul Singhwere recorded, but certain crucial witnesses were yet to be examined.Consequently, the second bail application submitted by the first respondentwas rejected. The first respondent instituted an appeal[5 ]before the HighCourt against the rejection of a second application for bail. No noticewas issued to the appellant under the provisions of Section 15A of theSC/ST Act.

5. On 7 November 2019, the High Court heard arguments in theappellate proceedings[6 ]when it was submitted by counsel for the firstrespondent that PW.2, the wife of the deceased, had stated that thedeceased had accompanied his brother-in-law (co-accused Kishan Lal),who had taken an insurance policy in the name of the deceased and thatit was Kishan Lal who had committed the murder with the help of hisfriends to obtain the proceeds of the insurance policy. After recordingthe above submission of the first respondent, the High Court enlarged 1 “SC/ST Act“

2 “CrPC“

3 S.B. Criminal Appeal No.1132/2019

4 Criminal Miscellaneous Case No.1253/2019

5 S.B. Criminal Appeal No.2518/2019

6 S.B. Criminal Appeal No.2518/2019

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Athe first respondent on bail by its order dated 7 November 2019. Theorder of the High Court reads thus:

“1. The present criminal appeal under Section 14(A)(2) of theSC/ST (Prevention of Atrocities) Act has been filed in connectionwith FIR No.116/2018 registered at Police Station KishangarhBDistrict Ajmer for the offences under Sections 302 & 201 of IPCand 3(2)(v) of SC/ST Act.

2. Counsel for the appellant submits that the appellant has beenfalsely implicated in this matter. Counsel further submits that thewife of the deceased Smt. Aaram Devi (PW-2) in her statementCrecorded during trial has stated that the deceased went with herbrother co-accused Kishan Lal who he has taken insurance policyin the name of her husband and he also purchased the trailer onbeing financed in the name of her husband and for taking amountof insurance policy Kishan Lal committed murder of her husbandwith the help of his friends. Counsel further submits that noDallegation has been levelled by her in the statement against theappellant and the appellant 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, itwould be just and expedient to order the release of the appellantEon bail.

5. The order dated 25.09.2019 passed by the learned Special Judge,SC/ST (Prevention of Atrocities Cases), Ajmer is quashed andset-aside and this appeal is accordingly allowed and it is directedthat accused appellant Satyanarayan s/o Shri Sohandas shall beFreleased on bail provided he furnishes a personal bond in the sumof Rs.50,000/- (Rupees Fifty Thousand Only) together with twosureties in the sum of Rs.25,000/- (Rupees Twenty Five ThousandOnly) each to the satisfaction of the learned Trial Court with thestipulation that he shall appear before that Court and any Court toGwhich the matter is transferred, on all subsequent dates of hearingand as and when called upon to do so.”

6. The appellant moved the High Courtunder Section 439(2) ofCrPC for cancellation of bail.[7 ]In the meantime, another Single Judge ofthe High Court, by an order dated 29 January 2021 rejected the application H7S.B. Criminal Bail Cancellation Application No.21/2020

for bail filed by three co-accused - Kalu Ram, Kishan Lal and ChamanLal. The application for cancellation of bail before the High Court wasmoved principally on the ground that no notice was issued to the appellantunder sub-section (3) of Section 15A of the SC/ST Act, resultingly noopportunity to be heard was provided under sub-section (5) of Section15A. The Single Judge who had admitted the first respondent to bail on7 November 2019 rejected the application on the ground that since theappellant was being heard in the application for cancelling bail, therequirements of sub-sections (3) and (5) of Section 15A were compliedwith. The High Court observed:

“So far as compliance of Section 15A (3)(5) of SC/ST isconcerned, this Court today heard counsel for the complainant-petitioner again on merits, therefore, requirement of issuing noticeto the complainant-petitioner (victim) as provided under Section15A (3)(5) of the SC/ST Act is being complied with.

The order dated 07.11.2019 was passed by this Court afterconsidering the statement of PW-2, Smt. Aaram Devi, wife of thedeceased, therefore, I see no reason for recalling of the orderdated 07.11.2019. As such, this criminal miscellaneous bailcancellation application is hereby dismissed.”

7. We have heard Mr Ajit Kumar Thakur, learned counsel insupport of the appeal. Mr Manish Sharma,learned counsel has appearedon behalf of the first respondent while MrChetanya Singh,learned counselhas appeared on behalf of the State of Rajasthan. On behalf of theappellant, it has been submitted that:

(i) There has been a fundamental infraction of the provisionsof Section 15A of the SC/ST Act by the High Courtin notissuing notice to the appellant, who in his capacity as acomplainant, was entitled to be heard in any proceedingunder the Act, inter alia, in respect of bail;

(ii) As a matter of fact, in the appeal which had been filedbefore the High Court against the rejection of the first bailapplication by the Special Judge, the appellant wasrepresented by counsel and that by an order dated 8 August2019, the appeal was dismissed as not pressed;

(iii) The failure to issue a notice to the appellant under sub-sections (3) and (5) of Section 15Abefore the grant of bail A

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by the High Court cannot be obviated subsequentlybyobserving that the appellant was being heard on theapplication for cancellation of bail; A

(iv) In the order dated 7 November 2019 the Single Judge merelyrecorded the statement of counsel for the accused that theBspouse of the deceased had in the course of her statementalleged that the deceased had gone with her brother whohad obtained an insurance policy in the name of thedeceased and it was Kishan Lal, the brother-in-law of thedeceased, who had committed the murder with the help ofhis friends; C

(v) The final report which has been submitted after investigationon 6 September 2018 prima facie reveals the complicity ofthe first respondent in the murder of the deceased. Theinvestigation has revealed that the first respondent togetherwith two of the co-accused participated in the murder andDthere is a CCTV camera footage; and

(vi) Besides the statements of the spouse and the mother of thedeceased and of an independent witness under Section 161CrPC, the call data records of the accused have beenobtained for the period between 1 June 2018 and 11 JuneE2018. The call data records indicate that all the accusedwere in close contact with each other during the said periodand proximate to the time of the offence. The call datarecords also indicate the location of the accused at the timeof the murder.

8. On the other hand, the learned counsel appearing on behalf ofFthe first respondent submitted that:

(i) The order granting bail has relied upon the statement of thespouse of the deceased that Ram Niwas was murdered byhis brother-in-law Kishan Lal with the help of his friendsfor obtaining the proceeds of the insurance policy whichGwas obtained in the name of the deceased and hence themain and substantive allegation is against Kishan Lal;

(ii) In the event that this Court comes to the conclusion thatthe appellant ought to have been heard before the grant ofbail, the court may consider remanding the proceedings backHto the High Court; and

(iii) Since his release on 7 November 2019 the first respondenthas not committed any act which would have a detrimentalbearing on his liberty.

9. A counter affidavit has been filed on behalf of the State ofRajasthan by the Additional S.P., Rural District, Ajmer. The affidavitstates that during the course of the investigation it has been revealedthat Kishan Lal, the brother-in-law of Ram Niwas, helped the latterboardthe vehicle from Vijay Nagar to BanderSinderi. After sometime, thelocal residents of Bander Sinderi saw the body of Ram Niwas beingthrown out of the vehicle in front of Gokul Singh Dhaba situated intheKishangarh area. Statements of witnesses were recorded under Section161 CrPC. During the course of the investigation, the provisions of Section3(2)(v) of the SC/ST Act were added; the accused belongs to the Swarncommunity while the deceased belonged to a Scheduled Caste. Accordingto the affidavit, the Safi with which the deceased was killed in the vehiclewas recovered at the behest of the accused, including the first respondent.Moreover, it has been submitted that the analysis of the call data recordsindicates that on 9 June 2018 continuous conversations were foundbetween the accused at the location near Bandanwada at about 1.00pmand that thereafter the location of all the accused including the firstrespondent was found at the same place. It has been submitted in theaffidavit that the first respondent is a habitual offender; he was previouslycharged for an offence under Sections 498A and 406 IPC in Case No.75/2008 in the Court of ACJM-01, Kekari District Court in which he hasbeen convicted and sentenced to imprisonment for one year.

10. The SC/ST Act has been enacted by the Parliament toeffectuate a salutary public purpose of achieving the fulfillment ofconstitutional rights of the Scheduled Castes and Scheduled Tribes. TheStatement of Objects and Reasons accompanying the introduction ofthe Bill in 1989 contains the following elucidation:

“1. Despite various measures to improve the socio-economicconditions of the Scheduled Castes and the Scheduled Tribes, theyremain vulnerable. They are denied number of civil rights. Theyare subjected to various offences, indignities, humiliations andharassment. They have, in several brutal incidents, been deprivedof their life and property. Serious crimes are committed againstthem for various historical, social and economic reasons.

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A2. Because of the awareness created amongst the ScheduledCastes and the Scheduled Tribes through spread of education,etc., they are trying to assert their rights and this is not beingtaken very kindly by the others. When they assert their rights andresist practices of un-touchability against them or demand statutoryminimum wages or refuse to do any bonded and forced labour,Bthe vested interests try to cow them down and terrorise them.When the Scheduled Castes and the Scheduled Tribes try topreserve their self-respect or honour of their women, they becomeirritants for the dominant and the mighty. Occupation and cultivationof even the government allotted land by the Scheduled CastesCand the Scheduled Tribes is resented and’ more often these peoplebecome victims of attacks by the vested interests of late, therehas been an increase in the disturbing trend of commission ofcertain atrocities like making the Scheduled Castes persons eatinedible substances like human excreta and attacks on and masskillings of helpless Scheduled Castes and Scheduled Tribes andDrape of women belonging to the Scheduled Castes and theScheduled Tribes. Under the circumstances, the existing laws likethe protection of Civil Rights Act, 1955 and the normal provisionsof the Indian Penal Code have been found to be inadequate tocheck these crimes. A special legislation to check and deter crimesEagainst them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary.

3. The term ‘atrocity’ has not been defined so far. It is considerednecessary that not only the term ‘atrocity’ should be defined butstringent measures should be introduced to provide for higherFpunishments for committing such atrocities. It is also proposed toenjoining, on the States and the Union territories to take specificpreventive and punitive measures to protect the Scheduled Castesand the Scheduled Tribes from being victimised and whereatrocities are committed, to provide adequate relief and assistanceto rehabilitate them.G

4. The Bill seeks to achieve the above objects.”

11. Section 15A, which comes under Chapter IV-A of the SC/STAct titled ‘Rights of victims and witnesses’, was introduced by way ofthe Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)HAmendment Act, 2015, which came into effect on 26 January 2016. The Statement of Objects and Reasons that accompanied the insertion ofChapter IV-A reads as follows:

“(h) to insert a new Chapter IVA relating to “Rights of Victimsand Witnesses” to impose certain duties and responsibilities uponthe State for making necessary arrangements for protection ofvictims, their dependents and witnesses against any kind ofintimidation, coercion or inducement or violence or threats ofviolence”(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 thecriminal justice system. Victims of crime often face significant hurdlesduring investigation and prosecution. Scheduled Castes and ScheduledTribes specifically suffer on account of procedural lapses in the criminaljustice system. They face insurmountable hurdles in accessing justicefrom the stage of filing the complaint to the conclusion of the trial. Dueto the fear of retribution from members of upper caste groups, ignoranceor police apathy, many victims do not register complaints in the firstplace. If victims or their relatives muster up the courage to approach thepolice, the police officials are reluctant to register complaints or do notrecord allegations accurately. Eventually, if the case does get registered,the victims and witnesses are vulnerable to intimidation, violence andsocial and economic boycott.[8 ]Further, many perpetrators of caste-basedatrocities get away scot-free due to shoddy investigations and thenegligence of prosecuting advocates.[9] This results in low conviction ratesunder the SC/ST Act giving rise to the erroneous perception that casesregistered under the Act are false and that it is being misused.On thecontrary, the reality is that many acquittals are a result of improperinvestigation and prosecution of crime, leading to insufficient evidence.This is evident from the low percentage of cases attracting the applicationof the provisions of the Penal Code relating to false complaints ascompared to the rate of acquittals.[10]

8 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-victims-witnesses-in-caste-based-atrocities/ (15 September 2020), lastaccessed on 27 October 2021.

9 Subhradipta Sarkar, The Quest for Victims’ Justice in India, Human Rights Brief 17(2)(2010), p.16-20.

10 Sthabir Khora, Misconstruction of the Anti-atrocities Act’s Misuse, Economic andPolitical Weekly 53 (15) (14 April 2018).

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A13. Section 15A of the SC/ST Act contains important provisionsthat safeguard the rights of the victims of caste-based atrocities andwitnesses. Sub-sections (3) and (5) of Section 15A specifically makethe victim or their dependent an active stakeholder in the criminalproceedings. These provisions enable a member of the marginalized casteto effectively pursue a case and counteract the effects of defectiveBinvestigations. Sub-sections (1) to (5)of Section 15A are extracted below:

“15A(1) It shall be the duty and responsibility of the State to makearrangements for the protection of victims, their dependents, andwitnesses against any kind of intimidation or coercion orinducement or violence or threats of violence.C

(2) A victim shall be treated with fairness, respect and dignity andwith due regard to any special need that arises because of thevictims age or gender or educational disadvantage or poverty.

(3) A victim or his dependent shall have the right toDreasonable, accurate, and timely notice of any Courtproceeding including any bail proceeding and the SpecialPublic Prosecutor or the State Government shall inform thevictim about any proceedings under this Act.

(4) A victim or his dependent shall have the right to apply to theESpecial 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 heardat any proceeding under this Act in respect of bail,Fdischarge, release, parole, conviction or sentence of anaccused or any connected proceedings or arguments andfile written submission on conviction, acquittal orsentencing.”

(emphasis added)

G14. Sub-section (3) of Section 15A confers a statutory right onthe victim or their dependents to reasonable, accurate, and timely noticeof any court proceeding includinga bail proceeding. In addition, sub-section(3) requires a Special Public Prosecutor or the State Government toinform 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 theH

expression “reasonable, accurate, and timely notice of any courtproceeding including any bail proceeding”. Sub-section (5) provides fora 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, brotherand sister of the victim, who are dependent wholly or mainly onsuch victim for his support and maintenance;”

The provisions of sub-section (3) which stipulate the requirementof notice and of sub-section (5) which confers a right to be heard mustbe construed harmoniously. The requirement of issuing a notice facilitatesthe right to be heard.

15. Many High Court decisions have noted that Section 15A wasintroduced to protect the rights of the victims and witnesses whose rightsas equal beneficiaries of the criminal justice system are often overlookeddue to their weak social position. The Madhya Pradesh High Court, inSunita Gandharva v. State of MP & Anr,[11 ]while highlighting thepurpose of the amendment inserting Section 15A observed that:

“21. With the years of experience, it was found that due to somevagueness in the definitions and some procedural inertia, thepurpose of Act lacked fulfilment, therefore, to make it more victimoriented, the Amendment Act was introduced.

22. With the legislative intent reiterated in the letter, no iota ofdoubt exists that intention of the Amendment Act was for SpeedyTrial and Protection of Victims’ Rights. By way of Section 2 (ec)Victim has been defined and beside Section 14-A, Section 15-A,“Rights of victim and witnesses” was introduced to take care ofthem for the first time. Definition of Victim includes-relatives,legal guardian and legal heirs and this definition is much widerthan the definition of Victim provided in Section 2 (wa) of Cr.P.C.which includes guardian or legal heir, not the relatives. Similarly,Section 15A of Atrocities Act provides an extensive mechanismfor protection of Victims/Witnesses. Even the victim has beengiven a chance to appear before the Court at the time of hearingof bail application. Right of the Court to cancel or revoke the bailis one of the measures by which protection of Victims/Witnessescan be ensured…”

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A16. The Gujarat High Court in Hemal Ashwin Jain v. Union ofIndia[12] observed that:

“37. The victims, even today, have no semblance of rights at theinvestigation stage and a feeble position at the trial stage of acriminal prosecution.

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53. We are also not impressed by the argument of Mr.Popat thatSection 15A(3) of the Amendment Act should be construed asdirectory and not mandatory. As is evident from a plain reading ofthe section quoted above, the victim must be served with noticeCof the bail application and must be provided an opportunity to beheard and advance argument. When a statute specifically providesa right to the victim/dependent to be heard at any proceedings inrespect of bail, and if the court fails to provide such opportunity,then there is an inherent failure of justice. This procedure, in ouropinion, cannot be bypassed. The non-compliance of the provisionDof Section 15A(3) of the Amendment Act would render an ordernull and void. If Section 15A(3) of the Amendment Act is to beconstrued as directory, then the very object and purpose with whichsuch provision is enacted would got frustrated.”

61. In such circumstances referred to above, we hold thatESection 15A(3) of the Amendment Act is mandatory andnot directory”

(emphasis supplied).

17. The finding of the Gujarat High Court that the requirement ofissuing notice of a court proceeding to a victim or a dependent underFSection 15A (3), in order to provide them an opportunity of being heard,is mandatory, finds echo in multiple High Court decisions[13] including adecisionof the Rajasthan High Court[14]. We find ourselves in agreementwith the proposition and hold that sub-sections (3) and (5) of Section15A are mandatory in nature.

G12 R/Special Civil Application No. 6369 of 2020 (Gujarat High Court), available athttps://www.livelaw.in/pdf_upload/pdf_upload-380514.pdf (last accessed on 27October 2021).

13 Ajeet Chaudhary v. State of UP, 2021 SCC OnLine All 417 (Allahabad High Court);Basheer M. v. State of Kerala, 2020 SCC OnLine Ker 1675 (Kerala High Court); andMarenna and Ors. v. The State & Ors., 2020 SCC OnLine Kar 1077 (Karnataka HighCourt).H14 Abid v. State of Rajasthan, 2020 SCC OnLine Raj 2703.

18. In the present case, it is evident that the right to notice and tobe heard were violated. Initially, when S.B. Criminal Appeal No.1132/2019 was heard by the High Court against the denial of bail by theSpecial Judge in the first bail application, the appellant was present throughcounsel. The appeal under Section 14A(2) of the SC/ST Act was notpressed by the first respondent and was accordingly dismissed. Section14A(2) is in the following terms:

“14A(2) Notwithstanding anything contained in sub-section (3) ofsection 378 of the Code of Criminal Procedure, 1973 (2 of 1974),an appeal shall lie to the High Court against an order of the SpecialCourt or the Exclusive Special Court granting or refusing bail.”

19. When the High Court entertained S.B. Criminal AppealNo.2518/2019 on 7 November 2019, no notice was given to the appellant.The High Court allowed the application for bail. When the appellantmoved the High Court for cancellation of bail, the Single Judge took theview that compliance with the principles of natural justice at that particularstage would cure the deficiency. There has been a clear infraction ofthe mandate of the statute. Sub-sections (3) and (5) have been introducedby the Parliament to ensure a right to be heard to the person againstwhom the offence is committed or to the dependents. These provisionsmust be scrupulously observed. We cannot agree with the finding of theSingle Judge that the defect in not issuing notice to the victim or theirdependent and depriving them of the opportunity to be heard in theconcerned proceedings (for grant of bail) can be cured by providingthem a hearing in a proceeding that arose subsequently (for cancellationof bail). Compliance with the principles of natural justice must be observedat every stage under the mandate of the statute.

20. Atrocities against members of the Scheduled Castes andScheduled Tribes are not a thing of the past. They continue to be areality in our society even today. Hence the statutory provisions whichhave been enacted by Parliament as a measure of protecting theconstitutional rights of persons belonging to the Scheduled Castes andScheduled Tribes must be complied with and enforced conscientiously.There has been an evident breach of the statutory requirements embodiedin sub-sections (3) and (5) of Section 15A in the present case.

21. We also emphasize that sub-section (3) of Section 15A providesthat a reasonable and timely notice must be issued to the victim or theirdependent. This would entail that the notice is served upon victims or A

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Atheir dependents at the first or earliest possible instance. If undue delayis caused in the issuance of notice, the victim, or as the case may be,their dependents, would remain uninformed of the progress made in thecase and it would prejudice their rights to effectively oppose the defenseof the accused. It would also ultimately delay the bail proceedings or thetrial, affecting the rights of the accused as well.B

22. Quite apart from the infraction of the provisions of the SC/STAct, there has been no application of mind by the Single Judge of theHigh Court to the considerations that govern the grant of bail. This Courtrecently in Ramesh Bhavan Rathod v. Vishanbhai HirabhaiMakwana[15], of which one of us was a part (Justice DY Chandrachud),Chas elaborated on the considerations that govern the grant of bail. ThisCourt also emphasized that recording of reasons by a judge is not a taskin formality, but an exercise of judicial accountability and transparency,which makes the decision available for further scrutiny at the touchstoneof reason and justice. This Court observed:

D“39. Grant of bail under Section 439 CrPC is a matter involvingthe exercise of judicial discretion. Judicial discretion in granting orrefusing bail—as in the case of any other discretion which is vestedin a court as a judicial institution—is not unstructured. The duty torecord reasons is a significant safeguard which ensures that theEdiscretion which is entrusted to the court is exercised in a judiciousmanner. The recording of reasons in a judicial order ensures thatthe thought process underlying the order is subject to scrutiny andthat it meets objective standards of reason and justice….

40. We are also constrained to record our disapproval of theFmanner in which the application for bail of Vishan (A-6) wasdisposed of. The High Court sought to support its decision to grantbail by stating that it had perused the material on record and wasgranting bail “without discussing the evidence in detail” takinginto consideration:

G(1) the facts of the case;

(2) the nature of allegations;

(3) gravity of offences; and

(4) role attributed to the accused.”

H15 (2021) 6 SCC 230

23. While granting bail to the first respondent, the High Court inits order dated 7 November 2019 only recorded the submission of counselfor the first respondent that PW-2, the spouse of the deceased, had inthe course of her statement recorded during the trial, stated that thedeceased had gone with her brother Kishan Lal; that Kishan Lal hadobtained an insurance policy in the name of the deceased and that themurder had been committed by Kishan Lal to obtain the proceeds of theinsurance policy, with the help of his friends. There is absolutely noreasoning in the order of the High Court granting bail, after recordingthe submissions of the first respondent’s counsel apart from noting thatthe public prosecutor had opposed the bail. The High Court held that itwas just and expedient to release the first respondent on bail “keeping inview the facts and circumstances of the case”. Such orders cannot passmuster. The duty to record reasons cannot be obviated by recordingsubmissions, followed by an omnibus “in the facts and circumstances”formula. Brief reasons which indicate the basis for granting bail areessential, for it is the reasons adduced by the court which indicate thebasis of the order.

24. Before the High Court granted bail by its order dated 7November 2019, the final report had been submitted on 6 September2018. The final report under Section 173 CrPC contains a detailed analysisof the call data records of the accused who were in continuous contactwith each other, as well as of their location in close proximity to the dateand time of the incident. The bail order does not make any mention offactors that are relevant for the grant of bail, which are (i) the seriousnessand gravity of the offence; and (ii) the role attributed to the first respondentin the commission of the crime. In this backdrop, the order of the HighCourt in granting bail cannot pass muster. Aggrieved by the order, theappellant had filed an application[16] seeking its recall. The Single Judgeof the High Court by the impugned order dated 8 June 2021 simplyreiterated that the bail was granted on the basis of the statement of thewife of the deceased, PW.2, once again failing to show any engagementwith the considerations that govern the grant of bail.

25. The appeal is accordingly allowed and the impugned order ofthe Single Judge of the High Court of Punjab and Haryana dated 8 June2021 in S.B. Criminal Bail Cancellation Application No. 21/2020 is setaside. The order granting bail to the first respondent dated 7 November 16 S.B. Criminal Miscellaneous Bail Cancellation Application No. 21/2020

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A2019 shall stand set aside. The first respondent shall surrender intocustody on or before 7 November 2021.

26. The observations made during the course of this judgment areonly for the purpose of considering the grant of bail to the first respondentand shall not have a bearing on the merits of the case as such.

B

27. Pending application(s), if any, shall stand disposed of.

Devika Gujral

Appeal allowed.

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