[Section 15A(3) SC/ST Act] Not Mandatory To Hear Victim While Granting Bail Where Accused Charged With Bailable Offence: Gujarat HC [Read Judgment]

The Gujarat high court on Wednesday held that courts need not hear the complainant/victim during bail hearings for bailable offences under the SC/ST Act.

"When a person is accused of committing only bailable offence or offences under the Act, it is not mandatory to grant opportunity of hearing to the victim or the dependent as provided under Section 15A(5) of the Act in a proceeding relating to granting bail to such accused", ruled the bench.

However, it clarified that before the court decides to decline such opportunity to the victim or the dependent, the court shall thoroughly verify and ascertain that the allegations against the accused disclose commission of only bailable offence or offences under the Act, by him.

Chief Justice Vikram Nath and Justice J. B. Pardiwala were considering a writ petition to hold and declare that the provisions of Section 15A(3) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as violative of Article 14 and Article 21 of the Constitution of India and strike it down.

The sais section 15A(3) requires that 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.

Sub-section (5) of Section 15A further provides that 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.

The division bench framed the following questions for its consideration:

(1) Whether Section 15A(3) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 is ultra vires Articles 14 and 21 respectively of the Constitution of India being manifestly arbitrary ?

(2) Whether Section 15A(3) of the Amendment Act, 2015, is mandatory or directory ?

(3) Whether Section 15A(3) of the Amendment Act, 2015, imposes any restrictions upon the competent court while considering the plea of bail in connection with the offences under the Atrocities Act ? In other words, whether Section 15A(3) of the Amendment Act could be said to be, in any manner, placing unreasonable restrictions when it comes to exercising discretion in favour of an accused while considering the plea of bail ?

The bench noted that the victims, even today, have no semblance of rights at the investigation stage and a feeble position at the trial stage of a criminal prosecution.

"Section 15A(3) could be said to have been introduced with a definite object and the object is to prevent atrocities upon the members of the Scheduled Castes and Scheduled Tribes", noted the bench, adding that just because a provision of law in the Amendment Act enables the victim to appear before the competent court at all the stages of the proceedings by itself does not render the same arbitrary.

"We are saying so, because the impugned provision is not laying any fetters or unreasonable restrictions upon the court when it comes to exercising discretion as regards the grant of bail, etc", observed the bench.

The bench was not impressed by the submissions of the counsel appearing for the writ-applicant, that Section 15A(3) of the Amendment Act, 2015, deserves to be struck down as ultra vires Articles 14 and 21 of the Constitution of India being manifestly arbitrary.

The bench was of the view that all that Section 15A(3) provides is a right to the victim to appear before the court and oppose the bail plea of the accused. Accordingly, it ruled that Section 15A(3) of the Amendment Act, 2015, cannot be termed as manifestly arbitrary.

The bench noted that it is true that the accused may not find the presence of the victim before the court very convenient, more particularly, when the accused is seeking bail. However, it reiterated that the principles of law with regard to the grant of bail will remain the same, "whether the accused is seeking bail in connection with an offence of murder or any offence under the Atrocities Act".

The Court reiterated the settled principles of law as regards the grant of bail:

(a) Whether there is or is not a reasonable ground for believing that the applicant has committed the offence with which he is charged;

(b) the nature and gravity of the charge;

(c) severity of degree of the punishment which might fall in the particular circumstances in case of a conviction;

(d) the danger of the applicant's absconding if he is released on bail;

(e) the character and means and standing of the applicant;

(f) the danger of the alleged offence being continued or repeated, assuming that the accused is guilty of having committed that offence in the past;

(g) the danger of witnesses being tampered with;

(h) opportunity of the applicant to prepare his defence; and

(i) the fact that the applicant has already been some months in jail and that the trial is not likely to conclude for several months at least.

(j) The court must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern.

(k) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

"We are also not impressed by the argument that Section 15A(3) of the Amendment Act should be construed as directory and not mandatory", stated the bench.

The bench reflected that the section requires that the victim must be served with notice of the bail application and must be provided an opportunity to be heard and advance argument. The court opined that 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, and such procedure cannot be bypassed.

"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 get frustrated", ruled the bench.

Accordingly, it held that Section 15A(3) of the Amendment Act is mandatory and not directory, and the non-compliance of the said provision would render the order null and void.

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