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2024 DIGILAW 1281 (KER)

State Of Kerala v. Arun @ Arunendranath Swami

2024-10-09

A.BADHARUDEEN

body2024
ORDER : This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, at the instance of the prosecution, challenging Annexure-A order dated 02.05.2024 in Crl.M.C. No.1060/2024 on the files of the Additional Sessions Judge-V, whereby, the learned Additional Sessions Judge, while holding the charge of Vacation Judge, granted bail to the accused/respondent herein in Crime No.291/2024 of Varkala Police Station, Thiruvananthapuram. 2. Heard the learned the learned Public Prosecutor and the learned counsel appearing for the respondent, in detail. Though, notice was served upon the defacto complainant as mandated under Section 15A(3) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 2015 [hereinafter referred as ‘SC/ST (POA) Act’ for short], she did not appear. Perused the impugned order and the relevant materials available. 3. In this matter, the prosecution allegation is that, the accused/respondent herein committed offences punishable under Sections 449, 506(i), 294(b), 323 and 302 of the Indian Penal Code and under Sections 3(1)(r), 3(1)(t) and 3(2)(v) of SC/ST (POA) Act. 4. The learned Public Prosecutor pointed out two vital points being illegalities, while seeking interference in the impugned order. The first point he argued is that, Annexure-A order was passed without serving notice to the dependent of the victim as provided under Section 15A(3) of the SC/ST (POA) Act to facilitate right of hearing under Section 15A(5) of the SC/ST (POA) Act. The second point is that, the Judge who passed Annexure-A order is not a Special Judge under the SC/ST (POA) Act and the learned Judge passed the impugned order granting bail to the respondent herein, during summer vacation and the vacation Judge has no power to act as a Special Judge under the SC/ST (POA) Act. 5. The learned counsel appearing for the respondent would submit that the learned Additional Sessions Judge, who held the charge of the Special Judge under the SC/ST (POA) Act, granted bail to the accused/respondent, after 68 days of custody. He also would submit that, even though, there was failure to issue notice to the dependent of the defacto complainant, who is no more, as mandated under Section 15A(5) of the SC/ST (POA) Act, the order is only to be justified and sustained. 6. While addressing the rival contentions, it is relevant to refer Sections 15A(3) and 15A(5) of the SC/ST (POA) Act. The same are as under: 15A. 6. While addressing the rival contentions, it is relevant to refer Sections 15A(3) and 15A(5) of the SC/ST (POA) Act. The same are as under: 15A. Rights of victims and witnesses xxx (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. xxx (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. 7. As far as the first contention raised by the learned Public Prosecutor is concerned, evidently, no notice issued to the dependent of the victim (since the victim was alleged to be murdered) before passing the impugned order and the questions arise herein are, (1) whether an order granting bail passed without issuing notice to the defacto complainant mandated under Section 15A(3) of the SC/ST (POA) Act, is legal? and (2) if illegal, the same is liable to be ignored? 8. On reading Section 15A(3) of SC/ST (POA) Act, it is provided 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” and as per Section 15A(5) of the SC/ST (POA) Act, “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”. Since the word used in Section 15A(3) and 15A(5) of SC/ST (POA) Act is “shall”, the compliance of the statutory command is mandatory and non compliance of the said mandate would make an order illegal. If an order is illegal, it cannot be ignored, since ‘non-est order is no order’ in the eye of law. Therefore, the order requires interference and the impugned order is liable to be set aside. If an order is illegal, it cannot be ignored, since ‘non-est order is no order’ in the eye of law. Therefore, the order requires interference and the impugned order is liable to be set aside. It is shocking to note that the learned Additional Sessions Judge lost sight of the mandatory provisions while granting bail to an accused, who alleged to have committed offence of murder and under the SC/ST (POA) Act, without adverting to the mandatory provisions of the Special Act. 9. As far as the second question raised by the learned Public Prosecutor is concerned, viz. whether the learned Additional Sessions Judge-V is a notified Special Judge under the SC/ST (POA) Act or else he was given the said charge during the vacation, are matters not borne out from the records. If the order was passed without holding the position of a Special Judge under the SC/ST (POA) Act, the said order is without jurisdiction. However, in view of the fact that the impugned order is found liable to be set aside, the said issue has no much significance. 10. Therefore, the matter is remanded back to the Special Court for trial of cases under the SC/ST (POA) Act, Thiruvananthapuram and the learned Special Judge is directed to consider the matter afresh, after issuing notice to the defacto complainant, as mandated under Section 15A(3) of the SC/ST (POA) Act, to facilitate right of hearing under Section 15A(5) of the SC/ST (POA) Act and pass appropriate order, within a period of three weeks, from 17.10.2024. 11. The accused/respondent herein is directed to appear before the Special Court on 17.10.2024 at 10.00 am, either in person or through counsel, without fail and for which no further notice is necessary. 12. In view of the factual aspects and in consideration of the fact that the respondent herein has been released on bail, the respondent is allowed to continue on bail, as an interim measure, since the dependent of the victim not appeared before this Court, even on receipt of notice, on the bond previously executed by him, till a final decision is taken by the learned Special Judge, as per law, within three weeks as directed from 17.10.2024. Registry is directed to forward a copy of this order to the Special Court, within three days, for information and compliance.