Mandatory compliance with notice provisions under the SC/ST (POA) Act is essential; failure renders bail orders illegal.

ORDER

Dated this the 9^th day of October, 2024

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. Rights of victims and witnesses

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(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.

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(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 bai