The Kalaburagi bench of the Karnataka High Court on Tuesday observed that a victim under the SC/ST Atrocities Act includes not only the person who sustains injuries arising out of the crime but also his parents and family members.
"..the definition "victim" as enumerated in the Act is wide enough, which include any individuals who falls within the definition of the SC/ST Act who has suffered or experienced physically, mentally, psychologically, emotionally or monitory harm or suffered harm to his or her property. If a person sustains injuries arising out of crime then, he himself, his parents, family members are also to be considered as victim as per the above definition", the bench observed.
In view of this premise, the single-Judge bench of Justice Hanchate Sanjeevkumar passed the following guidelines:
- "A right is conferred on the victim or his/her dependents to participate in the proceedings initiated under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as enumerated in Section 15-A. Therefore, the first informant/ complainant/ victim or dependents shall be made as a party in the proceedings and issue necessary notice to the victim or dependents/ first informant/ complainant/ victim or dependents and to hear them in any proceedings as envisaged under Sub-section (5) of Section 15-A of the SC/ST Act.
- The Special Courts trying with the offence/s under the SC/ST Act shall direct the District Legal Services Authority to provide an advocate on behalf of the victim or his/her dependents/ first informant/complainant from the Panel Advocates of District Legal Services Authority."
The directions were made while deciding whether the mother of the victim under the Act, who was also the informant in the case, should have been made a Respondent-party in the bail application moved by the accused.
The Petitioner-accused had contended that the informant (victim's mother) need not be impleaded as a party and it would suffice if an information is given to the victim or his dependents or the first informant about the proceedings pending before the Court in terms of Section 15-A(3) of the SC/ST Act.
Right to opportunity of hearing of the victim
Disagreeing with this submission, the bench observed that Section 15-A(5) of the Act guarantees a right to a victim or dependents to participate in any proceedings.
"Right of 'Audi Alterm Partem' is conferred.
…Where a right of Audi Alterm Partem is conferred on the victim or his dependents, then the court has to give an opportunity/right of audience to the victim or his/her dependent to hear them as to enable them to participate in the proceedings including bail proceedings also," the court remarked.
Section 15A(5) stipulates— 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.
In this backdrop the court held that a victim or dependent has a right to be heard by the Court, enabling the victim or dependents to participate in any proceedings in respect of not only bail proceedings but also in the proceedings of discharge, release, etc.
"The court is able to hear the victim or dependent in respect of a proceedings as enumerated in Sub-section (5) of Section 15-A of the SC/ST Act only when the victim or dependent are made as parties in the proceedings, otherwise it cannot be possible for the court to hear the victim/dependents and to receive any written submission as stated in the said provision," the bench observed.
On comparing Section 15-A(3) and Section 15A(5) the bench opined that while the prior assigns a duty to the Special Public Prosecutor to the State on behalf of the victim, but the latter expressly confers right of victims and witnesses to participate in any proceedings.
"Sub-section (3) of Section 15-A of the SC/ST Act only enumerates giving such information to the victim or dependents through Special Public Prosecutor or State Government about any proceedings pending in the court. But Sub-section (5) of Section 15-A of the SC/ST Act confers a right on the victim or dependents to make them to participate in a proceedings and to hear their submissions and also to file written submissions in this regard in the proceedings pending before the court.
Therefore, unless the victim or dependent as enumerated in Section 2(ec) of the SC/ST Act is made a party in the proceedings in the case pending before any court, it is not possible for the court to hear whatever submission to be put forth by the victim or dependents in the proceedings before the court. Therefore, under these circumstances, making the victim or dependent as party in the proceedings pending before any court is necessary and mandatory," the bench held.
Who is a victim under the SC/ST Act?
In its order, the High Court has also clarified who is a 'victim' as per Section 2 (ec) of the Act. A victim has been held to include any individual who falls within the definition of the SC/ST Act, who has suffered or experienced physically, mentally, psychologically, emotionally or monitory harm or suffered harm to his or her property.
"If a person sustains injuries arising out of crime then, he himself, his parents, family members are also to be considered as victim as per the above definition. It is not only stipulated a physical harm is to be caused but if there is a harm mentally, psychologically, emotionally or monetarily or if there is any harm in respect of the property then such person is also coming within the definition of the victim," the bench observed.
In the case at hand, the court noted, the informant was the mother of the injured person. Therefore, she was 'definitely' a victim, the court held.
"It is not only the mother alone is becoming the victim but father and other blood relative are also coming within the definition of victim to consider the present case. The first informant is the mother of the minor boy, the minor boy who had sustained injuries due to the assault stated to have been committed by the petitioners and other accused. Therefore, certain rights are conferred to the victim and witnesses under the SC/ST Act," it held.
Entitlement of victims under SC/ST Act to free legal services
Section 15-A(12) of the Act confers right on the atrocity victim or dependents to take assistance from the Non-Government Organizations, Social Workers or Advocates. A similar provision is also entailed under the Legal Services Authorities Act, 1987.
On a conjoint reading of the two, the bench held,
"The member of Scheduled Caste and Scheduled Tribes is entitled for free legal services. Legal services means it is not only a legal counseling but also providing assistance of an Advocate to the Member of the Scheduled Caste and Scheduled Tribes in any proceedings pending before the court…A victim or dependent…are also entitled to free legal services to participate in any proceedings pending before the Court as stipulated in Chapter IV-A of the SC/ST Act."
It clarified that there is no distinction in providing legal services at the trial stage and at the appellate stage (See Rajoo alias Ramakant v. State of Madhya Pradesh, (2012) 8 SCC 553).
The case pertained to a deadly attack on a 14-yr-old boy, whose head was allegedly hit by an Axe by the Petitioners-accused. They were also accused of abusing the boy in filthy language, by mentioning the name of his caste.
Considering the gravity of the offence alleged and also the severity of the punishment to be imposed, the Court was of the opinion not to release the petitioners on bail for the reason that "if they are released on bail then there would be of chances of threatening the injured, his parents and also tampering the evidences and also chances of absconding and fleeing away from justice."
It further held that the submission made by the Petitioner-accused that there was no pre-meditation and sharing of common intention between them, could not be elicited at this stage but only during the full- fledged trial.
The court also refused to make any comments on account of delay in registering the FIR and it held,
"There may be various factors in belated lodging of FIR, but this aspect of the delay can be considered during full-fledged trial but not at this stage…just because there is a delay that cannot be made a ground to allow the petitions since it is a pure question to be considered on facts during the full-fledged trial, but not at this stage."
Case Title: Marenna @ Mareppa v. State
Case No.: Crl. Petition No. 200315/2020
Quorum: Justice Hanchate Sanjeevkumar
Appearance: Advocates Nandkishore Boob and Rajesh Doddamani (for Petitioners); Govt Pleader Mallikarjun Sahukar (for State)