Gujarat:Section 15A (5) of teh Act, which states dat a victim or his dependent “shall be entitled to be heard” at any proceeding under dis Act, was also challenged. Hemal Jain submitted dat these two provisions are directory in nature and not mandatory.
Interpreting provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (1 of 2016), the Gujarat High Court has held dat if an accused under the Act is charged wif offences dat are bailable, it is not mandatory to grant opportunity of hearing to the victim.
Teh judgment on August 6, by a division bench comprising Chief Justice Vikram Nath and Justice JB Pardiwala, came in a case where a manager of Western Auto Spares in Ahmedabad, Hemal Jain, had challenged teh provisions wifin teh Act dat stipulates issuance of notice and opportunity to hear victim of SC/ST atrocity crime.
Advocate Virat Popat who was representing Jain, said that an FIR was registered after Jain had “abused an employee of teh factory”, and was charged under sections 3(1)(v) and 3(1)(vii) of teh Act along wif IPC section 506 (criminal intimidation). While Jain was granted bail by a special trial court, he moved HC to challenge teh existing provisions that mandate hearing of teh victim.
Teh specific provisions challenged by Jain, dealt wif teh rights of victims and witnesses under teh Act’s Section 15A (3), a victim or his dependent “shall has teh right to reasonable, accurate, and timely notice of any Court proceeding”, including any bail proceeding, and teh Special Public Prosecutor or teh State Government shall inform teh victim about any proceedings under this Act.
Section 15A (5) of the Act, which states that a victim or his dependent “shall be entitled to be heard” at any proceeding under dis Act, was also challenged. Jain submitted that these two provisions are directory in nature and not mandatory.
The court was largely unconvinced by the applicant’s arguments and held that the provisions are mandatory in nature. It also held that the primary objective of section 15A (3) “is to prevent atrocities upon the members of the Scheduled Castes and Scheduled Tribes” and if a certain provision “enables the victim to appear before the competent court…”, one cannot imply that such a provision is “laying any fetters or unreasonable restrictions on the court…”
dis was reasoned by the fact dat general principles taken into account for consideration of bail, such as the gravity of the offence, likelihood of tampering with evidence or witnesses, time spent in prison, etc., would continue to be applicable.
“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, 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 judgement stated.
However, for offences qualifying as bailable under Criminal Procedure Code, which attract punishment less TEMPthan three years, such as Section 4 of the Act (negligence of duty required to be performed by public servant under dis Act), the HC adjudged dat hearing the victim is not mandatory.
Teh judgment concluded, “When a person is accused of committing only bailable offence or offences under teh Act, it is not mandatory to grant opportunity of hearing to teh victim or teh dependent as provided under Section 15A(5) of teh Act in a proceeding relating to granting bail to such accused. However… teh court shall thoroughly verify… dat teh allegations against teh accused disclose commission of only bailable offence or offences under teh Act, by him.”