Andhra Pradesh High Court - Amravati

This Petition Is Filed Under Article 226 ... vs The State on 9 January, 2024

          THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

                   WRIT PETITION No.27193 of 2023

ORDER:

This petition is filed under Article 226 of the Constitution of India

for the following reliefs:

"...to issue an appropriate Writ, order or direction more particularly one in the nature of Writ of Mandamus:

a. declaring the inaction of the 1st respondent-the Special Sessions Judge appointed for the trial of the cases under the Scheduled castes & tribes Act, 1989-cum-IV ADDL. DISTRICT & SESSIONS JUDGE, GUNTUR, to add the petitioner as party to the proceedings of the case in S.C.No.16/S/2016 on the prosecution side enabling the petitioner to participate in the proceedings of the case, in order to hear petitioner's submissions, to file written submissions and hearing on the submissions with regard to the proceedings pending before this Honourable Court in the above case in S.C.No.16/S/2016, as per Sec. 15-A (3) and (5) of the Scheduled castes & tribes (PREVENTION OF ATTROCITIES) ACT (Act 33 of 1989).

b. Direct the 1st respondent-the Special Sessions Judge appointed for the trial of the cases under the Scheduled castes & tribes (PREVENTION OF ATTROCITIES) ACT, 1989, to record the entire case proceedings in the above case in S.C.No.16/S/2016 through the audio and video devices as per Sec 15-A (10) of the Scheduled castes & tribes (PREVENTION OF ATTROCITIES) ACT (Act 33 of 1989)

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c. Direct the 1st respondent-the Special Sessions Judge appointed for the trial of the cases under the Scheduled castes & tribes Act, 1989-cum-IV ADDL. DISTRICT & SESSIONS JUDGE, GUNTUR, to implement all the provisions enunciated in the Scheduled castes & tribes (PREVENTION OF ATTROCITIES) ACT (Act 33 of 1989), more particularly Sec. 15-A of the act conferring the rights on the victims, witnesses, dependent and pass..." (in verbatim)

2. The petitioner is L.W.1 in S.C.No.16/S/2016, filed an application

vide C.F.R.No.1138, dated 31.07.2023, under Section 15-A (3) and (5) of

the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (for short, 'the Act'), to add her as party to the proceedings of

the case enabling her to participate in the proceedings in

Crl.M.P.No.1801 of 2022 in S.C.No.16/S/2016, in order to hear her

submissions, both in oral and written. She also filed another

application vide C.F.R.No.1412, dated 28.08.2023, under Section 15-A

(10) of the Act, to record the entire case proceedings in Crl.M.P.No.1801

of 2023 in S.C.No.16/S/2016, through the audio and video devices and

to preserve them. The said two petitions were returned and are

re-submitted as follows:

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Representation dated 08.08.2023 for the returned two petitions on

01.08.2023

"1) How the Sections 15-A (10) of S.Cs & S.Ts (POA) Act is applicable. Explain the same.

Ans:

a) Section 15A was introduced conferring certain rights for the victims and witnesses and their dependents, whose rights as equal beneficiaries of the criminal justice system are often overlooked due to their weak social position.

b) The petitioner herein is the victim as per the definition given in Sec.2 of the S.C & S.T (POA) Act and also witness in the above case.

"Definition of Victim, at per the Sec. 2 (ec) "victim"

means any Individual who falls within the definition of the "Scheduled Castes and Scheduled Tribes" under clause (c) of sub-section (1) of section 2, and who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of any offence under this act and includes his relatives, legal guardian and legal heirs."

As per the above definition the petitioner comes under the definition of Victim and is entitled to seek the relief of the petition.

c) Sub Section (10) of the Sec.15 A of the SC/ST (POA) Act says as "All proceedings relating to offences under this Act shall be video recorded."

d) As per the Para 9 of the Judgment of the Honourable Kerala High Court, headed by the Honorable Mr. Justice Kauser Edappagathn in Crl.Mc.No.3970 of 2021 against the order in Crl.M.P.No.974/2021 in S.C.No.245/2020 of Sessions Court, Pathanamthitta.

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"9. S.15A of the SC/ST Act contains important provisions that safeguards the rights of the victims of caste based atrocities and witnesses. It makes sure that the victims of atrocities are with fairness, respect and dignity. Sub-section (10) of S.15A specifically says that all proceedings relating to the offences under this Act shall be video recorded. It comes under the Chapter "Rights of the Victims and Witnesses". Thus, the term "all the proceedings" found in Sub-section (10) includes court proceedings as well. Sub-section (10) of S.15A of the SC/ST Act confers statutory right on the victim to get all the proceedings relating to the offences under the Act to be video recorded. The rejection of the request of the victim/prosecution to video-record the court proceedings would go against the legislative mandate which specifies the rights of the victim and witnesses."

e) The petitioner, that is why, entitled to seek the relief and the petition is maintainable.

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2) How the Section 15-A (3) and (5) of S.Cs. & S.Ts. (POA) Act, are applicable to add the petitioner as party to the proceedings of the case, explain the same.

Ans:

1) The petitioner is filing the Judgment of the Honorable Supreme court of India headed by the Dr. Dhanajaya Y. Chandrachud and B.V. Nagaratna, J. reported in AIR 2021 Supreme Court 5610 specifically states about participation of the victim/dependent/witness as stake holder of the proceedings of the case as per the Section 15-A (3) and (5) of S.Cs. & S.Ts. (POA) Act, which reads as under:

"13. Section 15A of the SC/ST Act contains important provisions that safeguard the rights of the victims of caste-based atrocities and witnesses. Sub-sections (3) and (5) of Section 15A specifically make the

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victim or their dependent an active stakeholder in the criminal proceedings. These provisions enable a member of the marginalized caste to effectively pursue a case and counteract the effects of defective investigations. Sub-sections (1) to (5) of Section 15A are extracted below:

"15A(1) It shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of Intimidation or coercion or inducement or violence of threats of violence.

15A(2) A victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victims age or gender or educational disadvantages or poverty.

15A(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.

15A(4) A victim or his dependent shall have the right to apply to the Special Court or the Exclusive Special Court, as the case may be, to summon parties for production of any documents or material, witnesses or examine the persons present.

15A(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." (emphasis added)

14. Sub-section (3) of Section 15A confers a statutory right on the victim or their dependents to reasonable, accurate, and timely notice of any court proceeding including a bail proceeding. In addition, sub-section (3) requires a Special Public Prosecutor or the State Government to inform the victim about any proceeding under the Act. Sub-section (3) confers a right to a prior notice, this being evident from the use of the expression

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"reasonable, accurate, and timely notice of any court proceeding including any bail proceeding." Sub-section (5) provides for a right to be heard to the victim or to a dependent. The expression "dependent" is defined in Section 2(bb) thus:

"2(bb) "dependent" means the spouse, children, parents, brother and sister of the victim, who are dependent wholly or mainly on such victim for his support and maintenance;"

The provisions of sub-section (3) which stipulate the requirement of notice and of sub-section (5) which confers a right to be heard must be construed harmoniously. The requirement of issuing a notice facilitates the right to be heard.

15. Many High Court decisions have noted that Section 15A was introduced to protect the rights of the victims and witnesses whose rights as equal beneficiaries of the criminal justice system are often overlooked due to their weak social position. 13 The Madhya Pradesh High Court, in Sunita Gandharva v. State of MP & Anr,11 while highlighting the purpose of the amendment inserting Section 15A observed that:

"21. With the years of experience, it was found that due to some vagueness in the definitions and some procedural inertia, the purpose of Act lacked fulfilment, therefore, to make it more victim oriented, the Amendment Act was introduced.

22. With the legislative intent reiterated in the letter, no iota of doubt exists that intention of the Amendment Act was for Speedy Trial and Protection of Victims' Rights. By way of Section 2 (ec) Victim has been defined and beside Section 14-A, Section 15-A, "Rights of victim and witnesses" was introduced to take care of them for the first time. Definition of Victim includes-relatives, legal guardian and legal heirs and this definition is much wider than the definition of Victim provided in Section 2 (wa) of Cr.P.C. which includes guardian or legal heir, not the relatives. Similarly, Section 15A of Atrocities Act provides an extensive mechanism for protection of Victims/Witnesses. Even the victim has been given a

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chance to appear before the Court at the time of hearing of bail application, Right of the Court to cancel or revoke the bail is one of the measures by which protection of Victims/Witnesses can be ensured..."

16. The Gujarat High Court in Hemal Ashwin Jain v. Union of India 12 observed that:

"37. The victims, even today, have no semblance of rights at the investigation stage and a feeble position at the trial stage of a criminal prosecution...

53. We are also not impressed by the argument of Mr.Popat that Section 15A(3) of the Amendment Act should be construed as directory and not mandatory. As is evident from a plain reading of the section quoted above, the victim must be served with notice of the bail application and must be provided an opportunity to be heard and advance argument. When a statute specifically provides a right to the victim/dependent to be heard at any proceedings in respect of bail, and if the court fails to provide such opportunity, then there is an inherent failure of justice. This procedure, in our opinion, cannot be bypassed. The non-compliance of the provision of Section 15A(3) of the Amendment Act would render an order null and void. If Section 15A(3) of the Amendment Act is to be construed as directory, then the very object and purpose with which such provision is enacted would got frustrated."

61. In such circumstances referred to above, we hold that Section 15A(3) of the Amendment Act is mandatory and not directory" (emphasis supplied).

17. The finding of the Gujarat High Court that the requirement of issuing notice of a court proceeding to a victim or a dependent under Section 15A (3), in order to provide them an opportunity of being heard, is mandatory, finds echo in multiple High Court decisions 13 including a decision of the Rajasthan High Court 14. We find ourselves in agreement with the proposition and hold that sub-sections (3) and (5) of Section 15A are mandatory in nature."

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Para 18 to 19 of the Judgment of the Honourable High Court of Karnataka, KALABURAGI BENCH, dated 21-07-2020, before the Honourable Mr. Justice HANCHATE SAJEEV KUMAR in Criminal Petition No.200315/2020 C/W Criminal Petition No.200318/2020, which reads as under:

"18. Sub-section (5) of Section 15-A of the SC/ST Act guarantees a right to a victim or dependents to participate in any proceedings thus right of "Audi Alterm Partem' is conferred. For ready reference, Sub- section (5) of Section 15-A of the SC/ST Act is extracted as under;

"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 of sentence of an accused on any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing."

19. Therefore, where a right of Audi Alterm Partem is conferred on the victim of his dependents, then the court has to give an opportunity/right of audience to the victim of his/her dependent to hear them as to enable them to participate in the proceedings including bail proceedings also. Therefore, 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, parole, conviction or sentence of an accused of any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing of a case. 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 victim or dependent may participate either personally or through an Advocate or through Public Prosecutor or Special Public Prosecutor or appear himself/herself. As per Section 15 of the SC/ST Act, the Special Public Prosecutor or exclusive Special Public Prosecutor are assigned the duties to represent the State in genre but in specie on behalf of the victim or dependent/complainant/first informant to prosecute the case. But the parliament in its wisdom by inserting Chapter IV-A and Section 15-A of the SC/ST Act confers right of victims and witnesses and

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more expressly provided the victim or dependent to participate in any proceedings. Therefore, Sub-section (3) of Section 15-A of the SC/ST Act only enumerates giving much information 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.

Hence, the petitioner as a victim/witness is entitled to add her/him as a party to the proceedings of the case as per the Section 15-A (3) and (5) of S.Cs. & S.Ts. (POA) Act, are applicable to add the petitioner as party to the proceedings of the case.

N.B: If the Honorable Court is not satisfied, the matter may be called on Bench for hearing and the matter may be disposed of on merits at an earliest possible date."

3. The petitioner also filed another petition vide C.F.R.No.1530,

dated 13.09.2023, under Section 15-A (3) and (5) of the Act and under

Section 302 of the Code of Criminal Procedure, 1973 (for short,

'Cr.P.C.'), to add her as a party to the proceedings of the case enabling

her to participate in the proceedings in Crl.M.P.No.1801 of 2022 in

S.C.No.16/S/2016, by engaging an advocate of her choice, in order to

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hear her submissions, both oral and written. The petition was returned

and is re-submitted as follows:

"Under Section 15-A (3)(5) of the Act is not applicable in the L.W.1 and already vakalat filed by Sri T. K. R., Advocate on behalf of the L.W.1. No objections not filed. Hence, returned."

4. Since the trial Court has not decided on the objections in the light

of the answers, the petitioner has approached this Court by way of this

petition.

5. It is pertinent to mention that the petitioner filed earlier petition

under Section 302 Cr.P.C. and the same was allowed. Subsequently,

she filed a petition under Section 173 (8) Cr.P.C., vide Crl.M.P.No.1801

of 2022 in S.C.No.16/S/2016, seeking further investigation. Since the

said petition was dismissed for default on 02.12.2022, she preferred a

quash petition vide Crl.P.No.647 of 2023 and the same was allowed on

17.08.2023 by setting aside the impugned order dated 02.12.2022

passed in Crl.M.P.No.1801 of 2022 in S.C.No.16/S/2016 and directed

the trial Court to dispose of the Crl.M.P.No.1801 of 2022, in accordance

with law, as expeditiously as possible, preferably within a period of four

(04) months from the date of receipt of a copy of that order and further

directing the parties to co-operate with the trial Court for its disposal.

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6. When the Crl.M.P.No.1801 of 2022 was taken up for hearing, as

per the contention of the petitioner, the trial Court did not allow the

learned counsel to argue the case because the earlier order was passed

under Section 302 Cr.P.C. and the learned counsel can only assist the

learned Public Prosecutor and cannot personally act by making

submissions orally. Under such circumstances, the petitioner filed three

petitions noted above.

7. The learned counsel for the petitioner submitted that the scope of

Section 302 Cr.P.C. is narrower than Section 15-A of the Act which is

wider to include hearing of the victim either personally or through the

learned counsel by full participation and not limited to assist the

learned Public Prosecutor alone.

8. He further submitted that the petitioner can seek further reliefs

like recording all the proceedings by means of audio and video and the

petitioner can also be added as a party to the proceedings to achieve the

objects of the amendment effectively as held by the High Court of

Karnataka, Kalaburagi Bench, in Marenna @ Mareppa Vs. the State

through Shahapur Police Station, in Crl.P.No.200315 of 2020, dated

21.07.2020, at paragraph No.19, making the victim or dependent as

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party in the proceedings pending before any Court is necessary and

mandatory.

9. The learned counsel further submitted that an exhaustive answer

by referring to the provisions of law and also the decisions of the High

Court of Karnataka and the Supreme Court which dealt with the

objective of the legislative amendment was submitted to the trial Court,

but a decision was not taken on the objections raised.

10. He further submitted that as the trial Court had not given

opportunity within the purview of Section 15-A of the Act, it has become

difficult for an advocate to argue the petition, including the objections,

and therefore, it necessitated to approach this Court seeking the above

reliefs.

11. He further submitted that he has also cited in the objections

regarding the decision of the High Court of Kerala at Ernakulam, in

Crl.M.C.No.3970 of 2021, dated 07.02.2022, wherein it was held as

follows:

"In the light of the above findings, the impugned order cannot be sustained. Accordingly, it is set aside and the petition filed by the prosecution as Crl.M.C.No.974 of 2021 stands allowed. The Court below shall video-record the entire Court proceedings in S.C.No.245 of 2020 in the light of

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the observation and directions made in this order. The Crl.M.C. is disposed of as above."

12. The learned counsel for respondents No.3 to 5 submitted that this

Court cannot grant the reliefs claimed in the present writ petition as the

petitioner has to seek those reliefs before the trial Court. He further

submitted that since the provisio to 14 (3) of the Act prescribes a period

of two months from the date of filing of the charge sheet for disposal of

the case, appropriate direction may be given to the trial Court for

expeditious disposal of the case.

13. In reply, the learned counsel for the petitioner submitted that the

period stipulated under Section 14 (3) of the Act is applicable when

there are no other miscellaneous proceedings pending, but, in the

present case, the petition under Section 173 (8) Cr.P.C. and also the

present three petitions are pending and therefore, it is not possible to

dispose of the petitions as well as completing the trial within the said

period.

14. It is also submitted that speedy trial does not mean hasty trial

and the case must be decided on merits by giving appropriate

opportunity and placed reliance of the decision of the Supreme Court in

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State through Central Bureau of Investigation Vs. Hemendhra

Reddy & another1.

15. Section 15-A of the Act is as follows:-

15-A. Rights of victims and witnesses:-

(1) It shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence.

(2) A victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victims age or gender or educational disadvantage or poverty.

(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.

(4) A victim or his dependent shall have the right to apply to the Special Court or the Exclusive Special Court, as the case may be, to summon parties for production of any documents or material, witnesses or examine the persons present.

(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.

(6) Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), the Special Court or the

2023 Live Law (SC) 365

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Exclusive Special Court trying a case under this Act shall provide to a victim, his dependent, informant or witnesses:

(a) the complete protection to secure the ends of justice;

(b) the travelling and maintenance expenses during investigation, inquiry and trial;

(c) the social-economic rehabilitation during investigation, inquiry and trial; and

(d) relocation.

(7) The State shall inform the concerned Special Court or the Exclusive Special Court about the protection provided to any victim or his dependent, informant or witnesses and such Court shall periodically review the protection being offered and pass appropriate orders.

(8) Without prejudice to the generality of the provisions of sub-section (6), the concerned Special Court or the Exclusive Special Court may, on an application made by a victim or his dependent, informant or witness in any proceedings before it or by the Special Public Prosecutor in relation to such victim, informant or witness or on its own motion, take such measures including:

(a) concealing the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to the public;

(b) issuing directions for non-disclosure of the identity and addresses of the witnesses;

(c) take immediate action in respect of any complaint relating to harassment of a victim, informant or witness and on the same day, if necessary, pass appropriate orders for protection:

Provided that inquiry or investigation into the complaint received under clause (c) shall be tried separately from the main case by such Court and concluded within a

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period of two months from the date of receipt of the complaint:

Provided further that where the complaint under clause (c) is against any public servant, the Court shall restrain such public servant from interfering with the victim, informant or witness, as the case may be, in any matter related or unrelated to the pending case, except with the permission of the Court.

(9) It shall be the duty of the Investigating Officer and the Station House Officer to record the complaint of victim, informant or witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence, whether given orally or in writing, and a photocopy of the First Information Report shall be immediately given to them at free of cost.

(10) All proceedings relating to offences under this Act shall be video recorded.

(11) It shall be the duty of the concerned State to specify an appropriate scheme to ensure implementation of the following rights and entitlements of victims and witnesses in accessing justice so as:

(a) to provide a copy of the recorded First Information Report at free of cost;

(b) to provide immediate relief in cash or in kind to atrocity victims or their dependents;

(c) to provide necessary protection to the atrocity victims or their dependents, and witnesses;

(d) to provide relief in respect of death or injury or damage to property;

(e) to arrange food or water or clothing or shelter or medical aid or transport facilities or daily allowances to victims;

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(f) to provide the maintenance expenses to the atrocity victims and their dependents;

(g) to provide the information about the rights of atrocity victims at the time of making complaints and registering the First Information Report;

(h) to provide the protection to atrocity victims or their dependents and witnesses from intimidation and harassment;

(i) to provide the information to atrocity victims or their dependents or associated organisations or individuals, on the status of investigation and charge sheet and to provide copy of the charge sheet at free of cost;

(j) to take necessary precautions at the time of medical examination;

(k) to provide information to atrocity victims or their dependents or associated organisations or individuals, regarding the relief amount;

(l) to provide information to atrocity victims or their dependents or associated organisations or individuals, in advance about the dates and place of investigation and trial;

(m) to give adequate briefing on the case and preparation for trial to atrocity victims or their dependents or associated organisations or individuals and to provide the legal aid for the said purpose;

(n) to execute the rights of atrocity victims or their dependents or associated organisations or individuals at every stage of the proceedings under this Act and to provide the necessary assistance for the execution of the rights.

(12) It shall be the right of the atrocity victims or their dependents, to take assistance from the Non-Government Organisations, social workers or advocates.

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16. Section 302 of the Code of Criminal Procedure, 1973:-

302. Permission to conduct prosecution:-

(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.