Kalabhai Dahyabhai ... vs State Of Gujarat
2021 Latest Caselaw 18423 Guj

     R/SCR.A/9059/2020                             JUDGMENT DATED: 15/12/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 9059 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                     KALABHAI DAHYABHAI RATHOD(CHAMAR)
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR KASHYAP R JOSHI (2133) for the Applicant(s) No. 1,2,3,4,5
for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 15/12/2021

                              ORAL JUDGMENT

1. Rule. Learned APP Mr. Pranav Trivedi waives service of notice of rule on behalf of the respondents.

2. By way of this petition, the petitioners have prayed for the

R/SCR.A/9059/2020 JUDGMENT DATED: 15/12/2021

following reliefs:

"(A) Be pleased to admit the present petition and allow it by quashing and set aside the Order passed below 'C' Summary by the Special Judge and Add. Session Judge, Modasa, District- Aravalli from C.R.No.11188008200008/2020 registered at Modasa Rural Police Station from the offences u/s.302, 366, 376D, 323, 506(2) of the IPC and also from Section-3(1)(r), (s), 3(2)(v), 3(1) (w)(i) of the Atrocities Act, which is at Annexure-A dated 014-2020 granting the same and releasing the two accused persons from the jail.

(B) Be pleased to pass an order of further investigation qua all the offences as mentioned in the FIR at Annexure-C and also against all four accused persons by an independent agency under the direct supervision of DG and IG of the State regarding the defective charge sheet filed in the matter, which is at Annexure-B_ in C.R.No.111880082000-08/2020 for the offences u/s.302, 366, 376D, 323, 506(2) of the IPC and offences u/s. 3(1)(r), (s), 3(2) (v), 3(1)(w)(i) of the SC/ST (Prevention of Atrocities) Act registered at Modasa Rural Police Station, District-Arvalli.

(C) Be pleased to pass an order to remand the matter to the Ld. Sp. Court, Modasa, by directing Ld. Special Judge and Add. Sessions Judge, Modasa, to issue notice to the victim-parents/sisters/brother of the deceased Kajal Kalabhai Chamar and to give them Opportunity of hearing along with Special Public Prosecutor, appointed under the Act and to allow them to submit written submission in this Modasa Rural Police Station, I-C.R. No.111880082000-08 of 2020.

(D) Be pleased to stay further proceedings of Atrocity Case No.4 of 2020 pending before Special Judge, Modasa, and District- Aaravalli during the pendency of this petition and then, till the final disposal of this petition.

(E) Be pleased to pass any other and further order/s as may be thought fit in the interest of justice, equity and good conscience."

3. The petitioners state that they fall under the definition of 'victim' as defined under Section - 2(1)(ec) of The Scheduled Castes and the

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Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the SC & ST Act"). On 07.01.2020 a First Information Report bearing FIR No. 11188008200008 with Modasa Rural Police Station under Sections 302, 366, 376D, 323 and 506(2) of IPC and Sections 3(1)(r)(s), 3(2)(v) and 3(1)(w)(i) of the SC & ST Act against four accused persons. In connection with the said FIR, the respondent No.2 herein filed 'C' Summary Report dated 01.04.2020 before the trial Court concerned in favour of two out of the four accused, namely Darshanbhai Bhalabhai Bharwad and Jigar Sardarsinh Parmar. Charge- sheet was also filed on the same day under Sections 306, 201 and 504 of IPC and Sections 3(1)(r)(s), 3(2)(v) and 3(1)(w)(i) of the SC & ST Act.

3.1 The petitioner Nos.1 & 2 are the parents of deceased whereas, petitioner Nos.3 to 5 are the sisters / brothers of deceased. It is contended by learned advocate Mr. Kashyap R. Joshi for the petitioners that the "C" Summary report was filed before the trial Court on 01.04.2020 and on the very same day, the consent of the original complainant came to be recorded by the trial Court and on that day itself, the "C" Summary report came to be accepted. It was pointed out that the original complainant in the case is not a close or near relative of the deceased. He drew attention of the Court to the definition of the term "victim" as defined in Section 2(1)(ec) of the SC & ST Act to submit that "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 the SC & ST Act and includes his relatives, legal guardian and legal heirs. It is submitted that the complainant herein is a distant relative of the deceased and would not fall within the definition of

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"victim" defined under Section 2(1)(ec) of the SC & ST Act.

3.2 The learned advocate vehemently submitted that on the day when the "C" report was filed by respondent No.2, the trial Court recorded the consent of the complainant and accepted the report without assigning any reasons and also without giving any opportunity of hearing to the near relatives of deceased, i.e. the petitioners and thereafter, passed the order directing release of both the accused from jail. He, therefore, submitted that the order dated 01.04.2020 passed by the trial Court is in gross violation of the principles of natural justice and is also illegal and perverse. He submitted that the petitioners came to know about the passing of the order dated 01.04.2020 only in June 2020 and could move this Court in November 2020 on account of the prevailing pandemic situation.

3.3 Learned advocate Mr. Joshi pointed out that the impugned FIR was filed under Sections 302, 366, 376D, 323 and 506(2) of IPC and other sections of the SC & ST Act. However, in the charge-sheet, the respondent No.2 has replaced it with Sections 306, 201 and 504 of IPC and has conveniently omitted the provisions relating to the offences of 'murder' and 'rape'. As per the facts on record, the body of deceased was found hanging on a tree in the outskirts of the village and a panchnama to that effect was also drawn. He vehemently argued that considering the above aspects, the trial Court ought to have followed the provisions of Section 15A of the SC & ST Act, which relates to the rights of victims and witnesses. The trial Court ought to have verified the fact whether the complainant in the present case was a near relative of the deceased or not and would fall within the definition of "victim" as defined under the SC & ST Act. However, without undertaking any such exercise, the trial

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Court recorded the consent of the complainant on the very day when the "C" Summary report was filed and also passed an order accepting the report on the very same day and ordered release of the two accused from jail.

4. Heard learned advocates on both the sides. It appears from the record that "C" Summary report was filed by the police on 01.04.2020. On the very same day, the trial Court passed the impugned order dated 01.04.2020 by which it accepted the "C" Summary filed by respondent No.2. The impugned order is cryptic in nature inasmuch as in paragraph-3 therein it has been recorded that notice has been issued to the complainant and that in pursuance of such notice, the complainant appeared before the Court and filed a purshis to the effect that he has no objection if the "C" Summary filed in favour of the two accused named therein is accepted. It is to be noted that all the above events took place on the very same day, i.e. on 01.04.2020.

5. It is quite unfortunate to note that the "C" summary report was filed on 01.04.2020 and the trial Court passed the order accepting such report on the very same day, i.e. on 01.04.2020. There is a huge question mark as to when the trial Court had issued Notice to the complainant and when it was served upon him. Under what circumstances the complainant appeared before the trial Court and filed a purshis stating that he has no objection if the said report is accepted casts serious doubts about the proceedings that unfolded before the trial Court. The Court is bound to act in a fair and reasonable manner; however, in the present case, the same were missing.

6. Section 15A of the SC & ST Act relates to the rights of victims and

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witnesses. Sub-section (1) thereof provides that 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. In my opinion, before passing the impugned order, the trial Court ought to have verified as to whether the complainant falls within the definition of "victim" as defined under Section 2(1)(ec) of the SC & ST Act. Sub- section (2) thereof provides that a victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim's age or gender or educational disadvantage or poverty. Sub-section (3) provides that 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 the SC & ST Act. Thus, sub-section (3) makes it incumbent to provide timely notice of the Court proceeding to the victim or his dependent. Such rights are provided so that the victim or dependent get sufficient opportunity to put their part of the story before the Court concerned. Sub-section (5) of Section 15A provides that 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. In the present case, admittedly, no Notice has been issued to the "victims", as defined under Section 2(1)(ec) of the SC & ST Act or to any witness in the case before passing the order dated 01.04.2020. The victim, dependent or witness have been provided with the right under the SC & ST Act to file their reply or objections at any stage of the proceeding

R/SCR.A/9059/2020 JUDGMENT DATED: 15/12/2021

under the said Act. The complainant herein was merely an informant and could not be termed as a "victim" under Section 2(1)(ec) of the SC & ST Act. Of course, the complainant has the right to be heard but, at the same time, the "victims" in the case also have the right to be heard and therefore, the trial Court ought to have issued Notice to the "victims" as also the witnesses prior to the passing of the impugned order. Hence, the impugned order passed by the trial Court is violative of the principles of natural justice as no opportunity of being heard was provided to the "victims" in the case.

8. In the result, the petition is allowed. The impugned order dated 01.04.2020 passed by the Court of learned Special Judge and Add. Session Judge, Modasa, District-Aravalli in complaint being C.R.No.11188008200008 registered with Modasa Rural Police Station accepting the "C" Summary report filed by respondent No.2 is quashed and set aside. The trial Court is directed to issue Notice to the "victims" in the case and to grant the "victims" due opportunity to present their case on the "C" summary filed by respondent No.2 and to decide the issue in accordance with law, without being influenced by the observations made in this order. The petition stands disposed of accordingly. Rule is made absolute to the above extent.

                                                                   (GITA GOPI, J)


PRAVIN    KARUNAN