The Allahabad High Court on January 11 issued certain directions regarding placing of bail application/bail appeal under the Act before the Court and timely delivery of the notice to victim.
The 2016 amendments to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 brought in their wake an alteration in the practice and procedure for hearing of bail applications.
A single-judge bench of Justice Ajay Bhanot passed this order while hearing a criminal miscellaneous bail application filed by Ajeet Chaudhary.
A first information report was lodged against the applicant at Police Station- Karkanda, District Ghazipur, on May 12, 2020 under Sections 354 I.P.C, read with Sections 3(1)Da, 3(1) Dha of SC/ST Act and Section 7/8 of POCSO Act.
The bail application of the applicant was rejected by Special Judge (POCSO Act)-1, Ghazipur, on September 23, 2020.
Counsels for the applicants in all connected bail applications pointed out certain anomalies in the practices of hearing of bail applications/bail appeals under the Act. This has created inconsistencies in the hearing of bail applications/bail appeals, uncertainty in the period of maturation of bail applications/bail appeals, and deferment of hearing of bail applications/bail appeals under the Act for undefined periods.
The Bench noted that bail applications should be processed expeditiously and placed before the court for hearing in a reasonable and definite time-frame.
Now, it is important to note that under the SC & ST Act, rights of victim and witnesses and provisions for grant of bail have got special attention in Section 15 of the Act.
Section 15 (A) (3) and (5) are reproduced hereunder:
“(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.”
“(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.”
It may be noted that as per Section 15 (A) (3), the State Government or Special Public Prosecutor is nominated as the sole agency with the exclusive statutory duty to inform the victim about the bail proceedings.
Also, the phrase “reasonable, accurate and timely notice to the victim” used under Section 15(3) of the Act denotes that the victim has to be given adequate time to prepare his/her defence prior to placing of the matter before the Court.
“Failure to serve notice of bail upon the victim is failure of the State to perform its statutory function. The accused cannot be visited with penal consequences for the default of the State. The erring officials have to be proceeded against as per law. The Court also said that placement of the bail application/bail appeal before the court cannot be deferred for non-service of notice after the expiry of the time line stipulated below”. the Court observed.
The Court stated that the bail application/bail appeal under the Act be placed before the Court in strict adherence to the following time line and procedure:
The notice of the bail application/ bail appeal under the Act shall be served upon the Government Advocate before 12:00 PM of any working day.
The State Government shall ensure that service of notice of the bail application/ bail appeal is effected upon the victim not later than 96 hours after the receipt of the said notice.
The victim will be entitled to 72 hours after the receipt of notice of bail.
The SSP/ DCP/SP of the concerned district shall be the nodal officer, who shall supervise the staff charged with the duty of actually serving the notice upon the victim and to provide instructions and relevant material to the Government Advocate on the bail application. In case, there is default on part of such official, the SSP/ DCP/ SP of the concerned district shall take immediate action in accordance with law against such erring official.
Before parting, the Court cannot but take notice of the fact that we live in the age of information technology.
The process of law cannot move at a bullock cart’s pace in the age of information technology. Institutions have to upgrade with the latest technological developments. Fruits of technology have to be put in the service of the people. In the legal process, technology can play a critical role in effectuating the fundamental rights of the citizens in particular, and in upholding the process of law in general.
Accordingly, the State Government is directed to ensure that requisite infrastructure and trained personnel in the High Court (Office of Government Advocate), as well as in police stations are available to process the traffic of notices by e-mail. The bail application/ bail appeal may be served upon the Government Advocate by e-mail.
In case the notice is fully accurate and contains all the relevant annexures, the said service by e-mail shall be sufficient service upon the State.
In the event of service of notice of bail application/bail appeal upon Government Advocate by e-mail, the time limit for effecting service of the said notice by the State upon the victim shall be 72 hours and 27 not 96 hours.
The bail application in such cases shall be placed before the Court in 144 hours/6 days.
The Director General of Police shall create a State Level Committee headed by Officer not below than the rank of Additional Director General of Police. The aforesaid committee shall review the working and implementation of the above said directions, streamline procedures, study the possibility of further reducing the time period of notice of bail appeals/bail applications upon the victims, and also examine the action taken against the concerned officials for violating the directions.
The Committee shall submit its report on annual basis Before the State Government and make appropriate recommendations.