SC/ST Act | Bail Order Passed Without Notice To Victim A Nullity, Liable To Be Recalled: Kerala HC

The Kerala High Court recently recalled an order which granted bail after taking note of the fact that the order was passed without notice to the victim.

The Court allowed an application filed by the victim seeking recall of the bail order passed without hearing him.

The Court observed that a notice to the victim is mandatory as contemplated under Section 15A(3) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and if such a notice is not provided while passing a Bail Order, then it is liable to be recalled. 

Justice Ziyad Rahman A A relying on the Apex Court decision in State of Punjab v. Davinder Pal Singh Bhullar observed that, 

In this case, despite the fact that there was a mandate as contemplated under Section 15A(3) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the order is seen passed without giving a proper notice to the victim. Therefore, it is an order issued not only in violation of the statutory provisions and also in violation of principles of natural justice...In such circumstances, I am of the view that, the order passed by this Court is liable to be recalled in the light of the principles laid down by the Hon'ble Supreme Court in Davinder Pal Singh Bhullar's case.

The accused persons who were granted bail were booked for offences punishable under Section 506 read with Section 34 of the Indian Penal Code and Sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The Counsel appearing for the defacto complainant, relied on the High Court decisions in Pushpangathan v. State of Kerala and Babu @ Achayan v. Thankachan to substantiate his contention that the High Court is well within its powers to recall the order passed by invoking the power under Section 482 Cr.P.C. when it is found that, the order was passed without giving an opportunity of being heard to a party affected and thus an order passed in violation of principles of natural justice.

The Court noted from the records that even though notice was directed to be served to the 3rd respondent through the Station House Officer, the same is not served upon him and from the records.

It is evident that, the said order(of issuing notice) was pronounced on 19.04.2022 and the same was communicated to the Public Prosecutor on 21.04.2022 and immediately on 26.04.2022 the matter was again taken up despite the fact that next posting date was shown as 20.05.2022. Later, the matter is seen disposed of on 29.04.2022. Therefore, it is evident that the disposal of the bail application was without notice to the 3rd respondent, the Court said. 

The Court further pointed out that as per Section 15A(3) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, a victim or his dependent shall have the right to “reasonable, accurate and timely notice” of any court proceedings including any bail proceedings and the said Public Prosecutor or the State Government shall inform the victim about the proceedings under the Act and in the present case one of the offences was under the provisions of the Schedules Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, therefore, notice was mandatory as contemplated under the above provision.

Therefore, issuance of an order without complying with such statutory mandate makes the order nullity, the Court observed. 

The Court observed that in Pushpangathan v. State of Kerala and Babu @ Achayan v. Thankachan it was held that when the order passed by the Court in a criminal proceeding was without jurisdiction and without notice to the affected parties and thereby in violation of the principles of natural justice, the same can be recalled. 

In the present case, the Court observed that despite the fact that there was a mandate as contemplated under Section 15A(3) of SC/ST Act, the order is seen passed without giving proper notice to the victim.

Therefore the Court observed that the Court is liable to be recalled in light of the principles laid down by the Apex Court in State of Punjab v. Davinder Pal Singh Bhullar.

The accused persons in the case were represented by Advocate Saiby Jose Kidangoor, the President of the Kerala High Court Advocates Association, who is now facing allegations of having taken money from clients in the name of bribing judges. A police probe is underway based on a vigilance report of the High Court against the lawyer.

Case Title: Babu T. v. Byju Sebastian and Ors. 

Citation: 2023 LiveLaw(Ker) 47

Click Here To Read/Download The Order