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IN THE HIGH COURT OF ORISSA AT CUTTACK
C.R. DASH, J.
Pramod Kumar Ray and others - Petitioners
Versus
State of Odisha - Opposite Party
ABLAPL No.18056 of 2016
Decided on : 10-05-2017
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 438 - S.C. & S.T. (P.O.A.) Act - Sec. 15-A (3) - Arrest and imprisonment means infringement of precious right of an individual - Duty of every Court to protect the liberty of an individual - Secs. 436 to 439, Cr.P.C. are provisions dealing with question of liberty of a person, who has been arrested or who has been submitted to the jurisdiction of the Court or who apprehends arrest for a non-bailable offence - Notice through any agency, whosoever he or it may be, takes sometime 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 Sec. 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 - Further stated.
Presence of the victim or his/her dependent at the time of any proceeding including bail proceeding is not mandatorily required. The Court is to be satisfied about “reasonable, accurate and timely notice” to the victim or his/her dependent about the existence of a proceeding including the bail proceeding, and choice is to be left upon the victim or his dependent either to absent himself from the proceeding or to come and participate in the proceeding. Therefore, at the initial stage of hearing of any petition under Section 438, Cr.P.C. or any bail petition if question of exercise of incidental or implicit power arises, the exercise of power by the Court cannot be deferred for want of notice. “Reasonable, accurate and timely notice” of the proceeding, as enshrined in Sub-Section (3) of Section 15-A of the S.C. & S.T. (Amendment) Act shall be taken care of at the final stage of hearing of any proceeding including a bail proceeding, may it be anticipatory bail or regular bail.
3. ANTICIPATORY BAIL - Three kinds of relief are granted in a petition for anticipatory bail ;
(i) Pre-emptive or Preventive Relief;
(ii) Substantive Relief ; and
(iii) Facilitatory Relief.
Preemptive or Preventive Relief is granted in the form of interim protection, the contents of which varies from Court to Court. Whatever be the content, the offender is protected from arrest by police during currency of the preemptive or preventive relief or till final disposal of the anticipatory bail application.
Substantive Relief is the grant of anticipatory bail to an accusedpetitioner in a given case on conclusion of hearing.
Facilitatory Relief is generally given by this Court in the form of allowing the petitioner to surrender before the competent court and directing the competent court to dispose of his bail application on merit on the same day. Such relief is usually granted in a case where the co-accused persons similarly circumstanced with the petitioner have already been released on bail, and where this Court feels that instead of relief in an anticipatory bail, the matter may be dealt with appositely by the appropriate court in a bail proceeding.
4. CRIMINAL PROCEDURE CODE, 1973 - Sec. 438 - SC & ST (Amendment) Act - Sec. 18 - Court is clothed with the power to grant interim protection at the threshold in exercise of the jurisdiction u/s. 438, Cr.P.C. irrespective of the nature of the offence - Whether such interim protection can be granted in cases involving offences under the provisions of SC & ST (Amendment) Act in view of the clear bar in Sec. 18 of the SC & ST (Amendment) Act - No preemptive or preventive relief can be given in an application for anticipatory bail involving offence under the provisions of the SC & ST (Amendment) Act - Further stated.
In my considered view, by invoking the power of general superintendence of the High Court over the Sub-ordinate Courts and by invoking the jurisdiction under Section 482, Cr.P.C., this Court in a petition under Section 438, Cr.P.C. can direct the petitioner to approach the Special Court for bail within a specified period. In order to apply for bail before the Special Court, the petitioner must have to submit to the jurisdiction of the Special Court by surrendering before that Court. Before seven days of the date of his surrender, which he or his counsel knows better, a copy of the bail application or such number of copies of the bail applications, as may be required by the Special Public Prosecutor / Public Prosecutor, may be served upon him towards notice for compliance of Sub-Section (3) of Section 15-A of the S.C. & S.T. (Amendment) Act. On the date of surrender of the petitioner, the Special Public Prosecutor / Public Prosecutor shall have the Case Diary and other relevant records with him in order to assist the Special Court so far as the question of interim bail is concerned. Without prejudice to any party, I feel persuaded to make it clear that, barring certain grave offences like the offence punishable under Sections 302, I.P.C., 306, I.P.C. (where the petitioner is alleged to have made the victim to commit suicide for harassing him on the ground of his/her caste as S.C. or S.T.), 376, I.P.C., 436, I.P.C. (where the dwelling house of a member of the S.C. & S.T. community has been burnt), Section 307, I.P.C. (where the injuries sustained by the victim / victims are near fatal and he is still in bad shape) coupled with the offence / offences under the S.C. & S.T. (Amendment) Act, in all other cases interim bail, as a rule, is to be granted to the petitioner on the date of his surrender, and the matter of grant or rejection of regular bail can be re-examined in the light of the contentions of the parties and the materials available on record at the time of final hearing of the bail application, after sufficiency of notice on the victim or his dependent in compliance of Sub-Section (3) of Section 15-A of the S.C. & S.T. (Amendment) Act.
The lists of grave offences given above, is not exhaustive and complete. Different Benches sitting at different time, on consideration of the materials on record and the circumstances prevailing in the society at the relevant time, may add to the said list of grave offences more number of offences.
5. INTERIM BAIL - Grant of interim bail is an incidental/implicit power in the hands of the Court exercising jurisdiction over “Regular Bail” - Such a facilitatory relief in an application for anticipatory bail is a step forward to further the intention of the Constitution-makers so far as the rights enshrined in Art. 21 of the Constitution of India is concerned - No person should unnecessarily be detained awaiting a procedural requirement of notice to the victim or his dependant - While granting interim relief on the same day, the petitioner surrenders, the Special Court should impose the conditions to protect the interest of the victim and his dependant, and the Special Court should also impose conditions binding down the petitioner to appear before the I.O. for the purpose of investigation at an interval of certain days or weeks, so that the petitioner cannot be in a position to repeat the offence which is alleged against him, and he cannot avoid the process of law and he cannot keep himself at large.
C.R. Dash, J.
Heard Mr. Jagannath Pattnaik, learned Senior Counsel, who acted as Amicus Curiae on the request by this Court, and Mr. S.P. Mishra, learned Advocate General.
2. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“S.C. & S.T. Act” for short) came into force w.e.f. 30.01.1990. It needs no mention that, this Act is relatable to the expression ‘Law’ in Article 17 of the Constitution of India. The objects and reasons of the S.C. & S.T. Act clearly pronounce that the members of the S.C. & S.T. communities remain vulnerable and they are denied number of civil rights in the society. They are also subjected to numerous humiliation and harassments.
Since the Protection of Civil Rights Act (1951) and the general provisions of the Indian Penal Code were found inadequate to meet the situations faced by the members of the S.C. & S.T. communities, a special legislation in the form of S.C. & S.T. Act was promulgated to check and deter crimes against the members of the S.C. & S.T. communities. Recently, some important amendments were brought into the S.C. & S.T. Act. Said Amendment of 2015 (Act-1 of 2016) (“S.C. & S.T. Amendment Act” for short) has come into force w.e.f. 26.01.2016 to further the objects outlined supra. In the S.C. & S.T. Act, Section 18 of the Act barred jurisdiction of the competent courts so far as application of Section 438 of the Code of Criminal Procedure to persons committing an offence under the S.C. & S.T. Act is concerned. The vires of Section 18 of the S.C. & S.T. Act barring application of Section 438, Cr.P.C. to the offences under the Act was the subject matter of challenge before Hon’ble the Supreme Court in an Appeal by the State of Madhya Pradesh. Hon’ble the Supreme Court in the said case (State of Madhya Pradesh vrs. R.K. Balothia, A.I.R. 1995 SC 1198) held that the provision of Section 18 of the S.C. & S.T. Act is intra vires. Hon’ble the Supreme Court further proceeded to observe that the offences enumerated in Section 3 of the said Act are committed to humiliate and subjugate the members of the S.C. & S.T. communities, and these offences constitute a separate class and cannot be compared with offences provided in the Indian Penal Code.
3. Subsequently, in umpteen decisions, Hon’ble the Supreme Court and different High Courts dealt with the question of bar of Section 438, Cr.P.C. in Section 18 of the S.C. & S.T. (P.A.) Act.
In the case of Vilas Pandurang Pawar and Another vrs. State of Maharastra and others, AIR 2012 SC 2216 (Para-9 at Page-3319), Hon’ble the Supreme Court held that, where an offence is registered against a person under the provision of S.C. & S.T. Act, no Court shall entertain any application for anticipatory bail unless it prima facie finds that such an offence is not made out. Hon’ble the Supreme Court, again in the case of Sakuntala Devi vrs. Balinder Singh, (2014) 15 SCC 521, relying on the case of Vilas Pandurang Pawar (supra) held that the High Court is required to give a finding that an offence under the Act has not been made out before granting anticipatory bail (para-4). Same is the view of Hon’ble the Supreme Court in the case of Bachu Das vrs. State of Bihar and others, (2014) 3 SCC 471. This Court also in the cases of Dharani Pradhan and another vrs. State of Orissa, 2014 (2) OLR-720, Ratikanta Ray vrs. State of Orissa, 2015 (1) I.L.R. Cuttack 1127, Ramesh Prasad Bhanja and others vrs. State of Orissa, 1996 (10) OLR-466 / 1996 Crl.J. 2743, took similar view.
4. While the position of law stands thus, S.C. & S.T. (Amendment) Act, 2015 has come into force w.e.f. 26.01.2016. It is seen from Section 3, which provides for punishment for offences of atrocities that the Section has been substantially amended and more categories of atrocities constituting offence under the said Act have been provided. Section 14 of the Act providing for establishment of Special Court has been amended, authorizing the Special Court to take cognizance of the offenc
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