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2023 DIGILAW 1031 (GUJ)

KANTIBHAI BABUBHAI PARMAR v. STATE OF GUJARAT

2023-08-25

M.R.MENGDEY

body2023
JUDGMENT : M.R. MENGDEY, J. 1. The present applications have been preferred by the applicant with a prayer to recall the orders dated 19.05.2023 passed by this court in Special Criminal Application No. 6160 of 2023 and Special Criminal Application No. 6171 of 2023. 2. Learned advocate for the applicant has submitted that Section 15(A) (3) & (5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as the “Act”) give an indefeasible right to the victim or his dependant to be heard at any proceeding under the Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceeding. 2.1 Learned advocate for the applicant has submitted that sub-section (3) of Section 15(A) casts duty upon the Special Public Prosecutor or the State Government to inform the victim about any proceedings under this Act. In present case, the applicant was never informed about the aforesaid Special Criminal Applications being filed before this Court either by the Public Prosecutor or by the State Government. The provision of Section 15(A) (3) & (5) are mandatory in nature and since the said provisions have not been complied with, the order of this Court dated 19.05.2023 should be recalled. 2.2 Learned advocate for the applicant has submitted that the constitutional validity of the provision of Section 15(A) of the Act has been upheld by the Apex Court in its judgment in case of Hariram Bhambhi Vs. Satyanarayan & Anr. 2021 SCC Online SC 1010. He submitted that since the mandatory provision of Section 15(A) of the Act was not complied with, this Court ought not to have passed the order dated 19.05.2023 in both the aforesaid applications granting ad-interim relief in favour of the present private respondents. He, therefore, submitted to allow the present applications and recall the order dated 19.05.2023 passed by this Court in Special Criminal Application No. 6160 of 2023 and Special Criminal Application No. 6171 of 2023. 3. Learned APP Mr. Manan Mehta appearing for the respondent-State has opposed the present application by submitting that vide order dated 19.05.2023, this Court has already ordered to issue notice of rule to the present applicant and the proceedings of both the Special Criminal Applications are still pending. Therefore, present applications should be dismissed. 4. Mr. Ashish Dagli, learned advocate for the respondent no. Manan Mehta appearing for the respondent-State has opposed the present application by submitting that vide order dated 19.05.2023, this Court has already ordered to issue notice of rule to the present applicant and the proceedings of both the Special Criminal Applications are still pending. Therefore, present applications should be dismissed. 4. Mr. Ashish Dagli, learned advocate for the respondent no. 2 has opposed the present application by submitting that provision of Section 15(A) 3 of the Act does not preclude this Court from passing an ad-interim order. The proceedings of both the Special Criminal Applications are still pending at large and the applicant herein has been duly served with the notice of rule in both the aforesaid matters and he has appeared through his learned advocate. He relied upon the judgment of the Orissa High Court in case of Pramod Kumar Ray & Ors. Vs. State of Odhisa. He, therefore, submitted to dismiss the present applications. 5. Heard learned advocates for the parties and perused the material available on record. The respective applicants of Special Criminal Application No. 6160 of 2023 and Special Criminal Application No. 6171 of 2023 have invoked the provision of Article 226 of the Constitution of India and have prayed for quashing and setting aside the FIR in question registered with Khedbrahma Police Station, District Sabarkantha for the offences punishable under Section 143, 427 and 506(2) of the Indian Penal Code and Section 3(1)(r), 3(1)(s) and 3(2) (va) of the Act. The matters came up on board before this Court during the vacation on 19.05.2023. On 19.05.2023, after hearing learned advocates for the respective applicants, this Court had passed the following order in both the applications: “The dispute involved in the matter is with regard to encroachment on the land belonging to Gurjar Prajapati Samajvadi. The record indicates that previously some suit was filed with regard to the said parcel of land which was dismissed. Presently also the suit is filed and the same is pending. Prima facie, It appears that the first informant is neither the owner nor the occupant of the land in question. The Government agencies including DILR had also voiced apprehension and informed the Collector that a false complaint involving him in the offence punishable under section Atrocities Act may be filed. Record also indicates that previously also the first informant had filed such complaint. The Government agencies including DILR had also voiced apprehension and informed the Collector that a false complaint involving him in the offence punishable under section Atrocities Act may be filed. Record also indicates that previously also the first informant had filed such complaint. Considering the same, issue Rule returnable on 19.06.2023. Learned APP waives service of notice of Rule for and on behalf of the respondent State. Ad interim relief in terms of Para 8(C) is granted. Direct service is permitted.” 6. Pursuant to the aforesaid order passed by this Court, the private respondents herein were protected by way of ad-interim order granting stay of the further proceedings of the FIR in question. 7. It is also required to be noted that pursuant to the said order, a notice of rule was issued to the present applicant which is reported to have been duly served upon him and he has also appeared in the proceedings of Special Criminal Applications through his learned advocate. 8. Section 15(A)(3) reads as under: “Section 15(A) - Rights of victims and witnesses: (3) A victim or his deponent 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.” 9. In view of the aforesaid provision, the victim or his dependent has the right of reasonable, accurate and timely notice of any Court proceedings including any bail proceeding and a duty is cast upon the Special Public Prosecutor or the State Government to give information as regard any such proceeding having been initiated, to the victim or his dependent. In view of this provision, no such proceedings can be disposed of without giving an opportunity of hearing the victim or his dependent. The provision does not say that no order at all should be passed without granting an opportunity of hearing to the victim or his dependant. The provision also does not contemplate issuance of any notice to the victim or his dependent at the initial ad-interim stage. After the order dated 19.05.2023 was passed by this Court, as noted earlier, the notices of this Court have been duly served upon the present applicant and he has also appeared through his learned advocate in both the aforesaid proceedings. After the order dated 19.05.2023 was passed by this Court, as noted earlier, the notices of this Court have been duly served upon the present applicant and he has also appeared through his learned advocate in both the aforesaid proceedings. Thus, the applicant herein has received a notice of the proceedings pending before this Court. 10. It is also required to be noted that this Court, vide order dated 19.05.2023 has merely granted ad-interim relief in favor of the private respondents herein. This Court has not disposed of the proceedings of aforementioned Special Criminal Applications. The proceedings of the aforesaid Special Criminal Applications are still very much pending for consideration of this Court. It is, therefore, always open to the present applicant to get ad-interim relief granted by this Court vide order dated 19.05.2023, vacated. 11. This Court vide order dated 19.05.2023 had passed the order issuing rule making it returnable on 19.06.2023. The record indicates that on 19.06.2023, learned advocate appearing for the present applicant has entered his appearance in both the aforesaid Special Criminal Applications. The Coordinate Bench of this Court vide order dated 19.06.2023 was pleased to extend the ad-interim relief granted by this Court vide order dated 19.05.2023 up to 05.10.2023. No submissions appear to have been made on behalf of present applicant on 19.06.2023 for vacating the ad-interim relief granted by this Court vide order dated 19.05.2023. 12. The present applications have been filed by the present applicant on 26.06.2023. Thus, the same appears to be nothing, but an afterthought. 13. By filing the aforesaid Special Criminal Applications, the respective applicants have invoked the jurisdiction of this Court under Articles 226 of the Constitution of India. Under Article 226 of the Constitution of India, this Court has implicit and incidental powers to grant ad-interim relief to the petitioners. There is nothing in the provision of Section 15(A) of the Act precluding this Court from passing any ad-interim order in favour of the petitioner without issuance of notice. This Court in its order dated 19.05.2023 has given reasons for granting ad-interim relief in favour of the private respondents. The reasons recorded by this court while passing the order dated 19th May, 2023, are not challenged by the applicant. 14. This Court in its order dated 19.05.2023 has given reasons for granting ad-interim relief in favour of the private respondents. The reasons recorded by this court while passing the order dated 19th May, 2023, are not challenged by the applicant. 14. In the circumstances mentioned by this Court in its order dated 19.05.2023, this Court could not have waited for issuance of notice to the present applicant, as the same was likely to consume some time and the private respondents herein were required to be protected in the opinion of the Court. 15. The provision of Section 15(A) (3) of the Act, as discussed earlier, provides for issuance of notice to the victim or his dependent before the disposal of the proceedings in question. The proceedings in question are still pending for consideration of this court and the present applicant has all the time and opportunity to get the said proceedings dismissed. Therefore, it is not that this court had allowed the applications filed by the private respondents behind the back of the applicant. 16. Learned advocate for the applicant seeks to rely upon the judgment of the Apex Court in case of Hariram Bhambhi (supra). In the said judgment, the Apex Court has held that the provisions of Section 15(A) of the Act are mandatory in nature. There is no quarrel to the proposition of law laid-down by the Apex Court, however, in the facts of the case before the Apex Court, the High Court had allowed the application for bail without any notice under Section 15(A)(3) of the Act being issued to the victim in that case. It was in those set of facts that the Apex Court had quashed and set aside the order passed by the High Court, whereas in present case, as discussed earlier, this Court has not finally disposed of the proceedings of aforesaid Special Criminal Applications but has only granted ad interim relief to the private respondents. 17. In that view of the matter, the judgment of Apex Court would render no assistance to the applicant. 17. In that view of the matter, the judgment of Apex Court would render no assistance to the applicant. The High Court of Orissa at Cuttack in its judgment in case of Pramodrai (Supra) has observed as under: “Notice through any agency, whosoever he or it may be, takes some time and at the initial stage if any Court has any implicit or incidental power, such power cannot be circumspected or narrowed down for want of notice. Sufficiency or otherwise of notice, as provided under Sub-Section (3) of Section 15-A is to be insisted upon at the final hearing of an application for regular bail or anticipatory bail, in as much as notice instantaneously at the initial stage is far from possibility.” 18. In view of aforesaid discussion, the present applications are hopelessly misconceived and are devoid of any merit, and therefore, are hereby dismissed.